Abstract

AbstractThe German chapter deals with illicit trade of tobacco goods in Germany, its regulation by law, the authorities responsible for preventive and repressive aspects of fighting illicit trade and the procedures that apply as well as the relevance of illicit trade in practice. Repressive regulations in the field can mainly be found in tax criminal law. The specific area of tobacco tax criminal law (Tabaksteuerstrafrecht) is a special matter of excise tax criminal law (Verbrauchssteuerstrafrecht). Tax criminal law follows the general criminal law rules and therefore the criminal courts are responsible, which means that their point of view can differ from that of the fiscal courts. The main offense in tax criminal law is § 370 AO (tax evasion), which is accompanied by special regulations in the Tabaksteuergesetz (Tobacco tax law—TabStG). In practice, besides the criminal justice authorities the custom authorities play a major role in investigating tobacco crimes, mainly the Customs Criminal Investigation Office (Zollkriminalamt—ZKA) and its local offices.

Highlights

  • Illicit trade of tobacco goods is covered in Germany mainly by tax criminal law

  • Tax criminal law follows the criminal law rules and the criminal courts take their own stand on interpretation etc., which means that their point of view can differ from that of the fiscal courts

  • In the event that German tax stamps are not used when untaxed tobacco goods are brought from another EU Member State to Germany for commercial purposes, the importer as the tax debtor of the tobacco tax (cf. § 23 (1) Sentence 2 TabStG) is a suitable perpetrator of a tax evasion pursuant to § 370 I No 3 AO

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Summary

Relevant Offences and Their Features

Illicit trade of tobacco goods is covered in Germany mainly by tax criminal law. The specific area of tobacco tax criminal law (Tabaksteuerstrafrecht) is a special matter of excise tax criminal law (Verbrauchssteuerstrafrecht) being a special matter of tax criminal law This means it is a highly specialized field of law only few experts are familiar with but not the common criminal lawyer. Tax criminal law is criminal law in regard to a specific protected good, public taxes and duties. The illegal transfer of tobacco goods from one EU Member State to Germany (see § 23 TabStG) is to be distinguished from the direct import of tobacco products from a third country into German territory (see § 21 TabStG). In addition to the in the following mentioned offenses, e.g. § Gesetz über Tabakerzeugnisse und verwandte Erzeugnisse (TabakerzG) as a criminal offense and § TabakErzG as an administrative offense (Ordnungswidrigkeit) cover illegal methods of production and distribution.

Smuggling
Illicit Manufacturing
Counterfeiting
Administrative Offenses
Transfer
Import
Description of the Taxes
Relation Between Criminal and Administrative/Fiscal Responsibility
Relations Between Criminalization of Illicit Trade of Tobacco and Other Types of Economic Crimes
Professional, Violent or Organized Smuggling, § 373 AO
Legal Responsibility of Individuals for Illicit Trade of Tobacco Products
Sanctions Applicable for Illicit Trade of Tobacco Products (Individuals)
Criminal Sanctions
Forfeiture
Sanctions for Administrative Offences
Other Sanctions
Liability and Sanctions for Illicit Trade of Tobacco Products (Legal Persons)
Disposal or Destruction of Confiscated Tobacco Products
WTO FCTC and the 2012 Protocol
Investigation of Illicit Trade of Tobacco Products
Prosecution/Convictions in Cases of Illicit Trade of Tobacco Products
Financial Impact of Illicit Trade of Tobacco Products
Exemplary Cases
Features of Illicit Trade of Tobacco Products
Characteristics of Perpetrators of Illicit Trade of Tobacco
Trends in Illicit Trade of Tobacco Products
General Aspects and Conclusion
Findings
ISBN 978-618-81128-8-9
Full Text
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