Offenses Against The Financial Interests Of The European Union, Thesis of Law

Download Offenses Against The Financial Interests Of The European Union and more Thesis Law in PDF only on Docsity! 1 content INTRODUCTION CHAPTER I CRIMES CAREAFFECTING THE FINANCIAL INTERESTS ALEOF THE EUROPEAN COMMUNITIES 1.1. Illegal obtaining of European funds 1.1.1. Fraud committed by using or presenting false, inaccurate or incomplete documents 1.1.2. Fraud committed by failing to provide the requested data in violation of a specific obligation 1.2. The decrease of European funds 1.2.1. Fraud committed by using or presenting false, inaccurate or incomplete documents 1.2.2. Fraud committed by failing to provide the requested data in violation of a specific obligation 1.3. Misappropriation of European funds 1.3.1. Misappropriation of funds obtained 1.3.2. Misappropriation of a legally obtained benefit CHAPTER II OTHER CRIMES LIKELY TO AFFECT THE FINANCIAL INTERESTS ALEOF THE EUROPEAN COMMUNITIES 2.1. Negligence that damages community financial interests in Member States 2.2. Corruption offences 2.2.1 Passive corruption 2.2.2. Active corruption 2.3. The provisions existing in the Romanian legislation 2.3.1. Corruption offenses themselves 2.3.2 Crimes similar to corruption crimes 2.3.3 Crimes directly related to corruption crimes CHAPTER IIIPROTECTION OF COMMUNITY FINANCIAL INTERESTS 3.1. Criminal protection of community financial interests through legal instruments adopted at the level of the European Union 3.2. Protection of community financial interests through legal instruments adopted at the level of the European Union 3.3. Protection of community financial interests in Romania 3.3.1. The legal framework and bodies with attributions in the field 3.3.2. The national anti-fraud fight strategy CHAPTER IV. JURISPRUDENCE 4.1 The use of false documents resulting in unjustly obtaining funds from the general budget of the European Communities. Forgery in documents under private signature. COMPETITION 4.2. The use of false documents resulting in unjustly obtaining funds from the general budget of the European Communities. Dangerous crime 4.3 The use of false documents with the result of obtaining Unfair European funds. Changing the destination of the funds obtained. evidence 2 4.4. Changing the destination of European funds. Successive material acts. Continuing offence. The special criminalization that occurred after the start of the criminal activity. Legal framework 4.5. The use of falsified documents with the consequence of unjustly obtaining funds from the European Union budget. Civil action. Returning the parties to their previous situation. Restitution of the granted funding ConCluSIonS BIBLIOGRAPHY 5 Italian Supreme Court observed that the Italian legal system regulates situations where different provisions apply and differentially punish similar or even identical criminal behavior. Also, although community funds are assimilated to Italian national funds, the situation may cause legislative ambiguities that raise questions regarding the application of effective, proportionate and dissuasive sanctions, due in particular to the differences in the sanctioning system. In Austria and Sweden, fraudulent behavior affecting the Community's financial interests in terms of expenditure falls under the common law offense of fraud. The common law offense of fraud requires as an additional constituent element the intention to deceive, and in Austria the intention to enrich the offender or a third person is also required. Also, the third jurisdiction of Great Britain, Scotland, provides that fraud affecting the community's financial interests in terms of expenses falls under the common law crime of fraud, this requiring as an additional constitutive element the intention to deceive. 1.1.2. Fraud committed by failing to provide the requested data in violation of a specific obligation The situation regarding fraudulent behavior that affects the community's financial interests by failing to provide the required data in violation of a specific obligation is similar to that regarding fraud committed by using or presenting false, inaccurate or incomplete documents or statements. That is why in this subsection I will refer only to those states where there are specific provisions Belgium, Denmark, Greece, Italy, Ireland, Portugal, Spain and Sweden regulate fraud by omission with the help of the same provisions that regulate fraud committed by presenting or using false, inaccurate or incomplete documents or statements, on the other hand, Germany, Luxembourg, the Netherlands'69 and Finland provide specific provisions regarding fraud by omission. The Austrian criminal code provides a general system regarding the commission of any crime by omission, including fraud, if the perpetrator had an obligation to act, and therefore the obligation to provide information when required by law. In two of the UK jurisdictions (England and Wales, Northern Ireland), failure to provide information is only covered as part of an incomplete declaration and falls under the regulations mentioned in the previous subsection regarding the use of inaccurate or 6 incomplete documents or declarations . Such an omission could under certain conditions constitute a crime of falsification in accounting provided for in special laws - statutory offenses - Theft Act 1968 or Theft (Northern Ireland) 1969. In France, the qualification of fraud by omission depends on the result of the criminal conduct. Since such an act is not explicitly criminalized, the French courts frame the failure to provide information as a fraud offense only if there is an obvious risk of obtaining the fraudulent result3'1. The situation appears to be similar in Scotland, where failure to provide information in breach of a specific duty is not explicitly criminalized as a common law offense of fraud. 1.2. The decrease of European funds 1.2.1. Fraud committed by using or presenting false, inaccurate or incomplete documents The main revenues consist of a part of the national VAT of each Member State of the European Union; a part equal to a certain percentage of the gross national income and traditional own resources of each Member State (differentiated according to its economic development); customs duties levied on the import into the European Union of products originating from third countries; agricultural levies, levied on the import of agricultural products from third countries (which cover the difference between the world price of the product and the price on the community market and the contributions provided for within the common market); competition fines.8 Constitutes counterfeit use, according to art. 291 Penal Code, the use of an official document or under a private signature, knowing that it is false, in order to produce a legal consequence.9 According to art. 292 of the Penal Code, the false statement consists in the Declaration not corresponding to the truth, made to a state body or institution or to another unit among those referred to in art. 145, in order to produce a legal consequence, for 8Constitutes counterfeit use, according to art. 291 Penal Code, the use of an official document or under a private signature, knowing that it is false, in order to produce a legal consequence. 9 Mihai Adrian Hotca, Criminal Law. The general part . Criminal law and crime, CH Beck Publishing House, 2012, p.135 7 oneself or for another, when, according to the law or the circumstances, the statement made serves to produce that consequence.10 The resources to which this offense refers are considered only the customs duties levied upon the import into the European Union of products originating from third countries and the agricultural levies, levied upon the import of agricultural products originating from third countries 11. The touch brought to the other resources listed above does not fall under the scope of the facts regulated in this article 12. According to Article 1 of the Convention, fraud affecting the financial interests of the European Communities consists, as far as revenues are concerned, in any intentional action or inaction regarding: - Using or presenting false, inaccurate or incomplete documents that have the effect of illegally reducing revenues from the general budget of the European Communities or from the budgets administered by it or on its behalf. - Omission to provide the requested data by violating a specific obligation, with the same effect. - Changing, without complying with the legal provisions, the destination of a legal benefit obtained, with the same effect. In five Member States (Denmark, Greece, Spain, Ireland and Luxembourg), the transposition of these provisions into domestic law took the form of new criminal provisions on revenue fraud. In two Member States (Austria, Finland) the existing fraud offense was amended to cover revenue fraud under the PIF Convention. In Finland, the scope of tax fraud was extended to include Community income, while in Austria an administrative tax provision was transformed into an offense concerning VAT refunds from exports. In eight other Member States (Belgium, Germany, France, Italy, the Netherlands, Portugal, Sweden and Great Britain) no new offenses were introduced and no changes were made to existing offences. 10 Norel Neagu, Maxim Dobrinoiu, Radu Florin Geamanu , Offenses provided for in special laws. Comments and explanations. 1st edition III, CH Beck Publishing House, 2013, p.165 11 Norel Neagu , Crimes and offenses against the financial interests of the European Communities, in Vasile Dobrinoiu and collaborators , Criminal law, special part, vol. II , Lumina Lex Publishing House. Bucharest, 2004, page 653. 12Explanatory report of the Convention regarding the protection of the financial interests of the European Communities, published in JOCE no. 191 of June 23, 1997 10 limited only to the sanctioning of defrauding the income collected by the tax or customs administration of Great Britain, and not the income collected by other tax authorities. In addition, the crimes require additional constitutive elements such as knowingly committing the act in the matter of customs fraud and it is not achieved by simply presenting forged documents to the authorities. , French 20, Italian 21and Portuguese 22criminal systems 23provide for different offenses in special laws depending on the type of income. Normally, a distinction is made at least between the offenses provided for in the Customs Code and those in the Fiscal Code. In Belgium, the VAT Code criminalizes VAT fraud, and customs fraud is criminalized by the General Law on Customs Taxes and Excises, which expressly refers to the violation of Community customs regulations and decisions. As an additional constitutive element, the Belgian criminal law provides for the intention to deceive the customs authorities. The French criminal system criminalizes customs fraud and VAT fraud in two different normative acts, respectively the Customs Code and the General Fiscal Code. Also, a difference is made between criminal and administrative sanctions applied depending on the incriminated conduct. Italy and Portugal provide for several customs offenses in the Customs Code or the Customs Penal Code and criminalize VAT fraud as a common law tax offence. In Italy, revenue fraud can fall under the common law offense of deception, if an attempt is made to mislead the injured party with the intention of the offender to enrich himself or a third person. 1.2.2. Fraud committed by failing to provide the requested data in violation of a specific obligation Since the fiscal or customs provisions provide for the specific obligation to declare any circumstance likely to influence the amount of contributions due, the situation regarding fraudulent behavior affecting the community's financial interests by failing to provide the required data in violation of a specific obligation is similar to that regarding 20Art. 414-417 of the Customs Code provides criminal sanctions, and art. 410-412 of the same code, administrative sanctions for income fraud Also, art. 1741 penalizes income fraud in the General Fiscal Code, and art. 1728 of the same code provides for administrative sanctions. 21Art. 640bis of the Italian Criminal Code, art. 282-292 of the law on smuggling to the customs regime. Art. 2 of the Implementation Decree 2000/74 regarding the new provisions regarding income and value added taxes. 22Art 23 of the Fiscal Offenses Code or art. 23 of the Customs Offenses Code. 23Art. 259 point 2 and art. 261 of the General Law on customs duties or art. 10 - the Law of 11 September 1962 on the import, export or transit of goods or other products with regard to VAT fraud, the provisions can be found in art. 73-art. 73bis of VAT code 11 fraud committed by using or presenting false, inaccurate or incomplete documents or statements. In two of the jurisdictions of Great Britain (England and Wales, Northern Ireland), where special laws specifically regulate fraud in customs documents, this way of committing the crime does not seem to fit into the patterns regulated by these special laws. Instead, it could fall under the common law regulation regarding income fraud. In Scotland, however, there is no such common law offense that could be applied in the alternative. 1.3. Misappropriation of European funds 1.3.1. Misappropriation of funds obtained As regards the community's financial interests in terms of expenses, the change in the destination of the obtained funds consists in the use of these funds, although legally obtained, for purposes other than those for which they were granted. In Greece and Ireland, the fraud committed by changing the destination of funds is codified in the legislation adopted as a result of the ratification of the PIF Convention, faithfully taking over its provisions. In Belgium, Germany, Portugal and Finland, changing the destination of funds is one of the possible forms of fraudulent behavior provided for in special laws or in special provisions of the Criminal Code regarding fraud in relation to aid and subsidies. In all these countries. Changing the destination of funds that cannot be qualified as aid or subsidies does not fall under the criminal law, unless it meets the constitutive elements of the crime of breach of trust, in addition. Art. 37 of the Portuguese Legislative Decree no. 28/84 limits the application of criminal provisions only in the case of aid and subsidies granted for the benefit! To an economic agent carried out for its economic development.24 Also, chapter 29(5) of the Finnish Penal Code leaves out of criminalization fraud regarding financial support granted for personal use. , Danish 25, German 26, Italian 27, Luxembourgish 28, Spanish 463 and Swedish Criminal Codes466, fraudulent behavior regarding the change in the destination of funds is 24 Simone White , Protection of the Financial Interests of the European Communities. The Fight against Fraud and Corruption , Ed. Kluwer Law International, Hague, 1998, p.156 25§ 289a (2) of the Danish Penal Code 12 provided for in special provisions different from those regarding commission fraud by presenting inaccurate or incomplete documents or false statements or by failing to provide 29information. In Italy, the offense provided for in art. 316 bis of the Criminal Code refers only to the change of destination of the funds granted for carrying out activities of public interest. In Luxembourg, the Netherlands, Austria and Sweden, the crime exists only if the funds whose destination is diverted and concern aid and subsidies. In addition, in Luxembourg and Germany, in order to meet the constitutive elements of the crime, the initial existence of the intention to use the funds for purposes other than those for which they were granted is required. French criminal law qualifies changing the destination of funds as a crime of breach of trust. It is required that the change in the destination of the funds be done in a manner that affects the interests of other people, regardless of the purpose for which they were granted. Unlike the other Member States, in none of the jurisdictions of Great Britain is there a specific offense regarding fraud by changing the destination of funds. In some specific cases, changing the destination of funds can be considered, in England and Wales as well as in Northern Ireland, as theft provided for in specific statutory offenses Theft Act 1968 and Theft (Northern Ireland) 1969. 1.3.2. Misappropriation of a legally obtained benefit As far as the Community's financial interests in terms of income are concerned, defrauding them by changing the destination of a legally obtained benefit must result in the unjust obtaining of some funds or their unjust withholding and at the same time the illegal reduction of the resources of the European Communities' budget 30. In Denmark, Greece, Spain, Ireland and Luxembourg, changing the destination of a legally obtained benefit constitutes one of the possible ways of criminalized fraudulent behavior in terms of community income. In Germany, Italy, France, Holland, Austria, Portugal and Finland, tax fraud, regardless of whether it is regulated in a single code or special law or in several regarding 26§ 264 (1) pet. (2) of the German Penal Code 27art.316bis of the Italian Criminal Code. 28art.496-2 of the Luxembourg Penal Code. 29§ 153 b of the Austrian Penal Code. 30The explanatory report of the PIF Convention, JOCE no. C 191 of June 23, 1997. 15 can be responsible for their own actions (as authors, instigators or accomplices), but they can also be responsible for the violation of the duty of care, for the lack of supervision or control of the activity of subordinates (culpa in vigilando ) . The criminal liability of the manager of the economic agent can also be based on his lack of skill or incompetence. Only Greece introduced a specific provision on the occasion of the ratification of the instruments regarding the protection of community financial interests, which regulates the criminal liability of the head of the economic agent or of the persons having decision- making power within the economic agent for the crimes of fraud or corruption committed by persons from their subordination. The other Member States considered that the existing domestic legislation can cover this hypothesis. Spain, the Netherlands, Portugal, Finland and Great Britain seem to recognize in their domestic legislation the criminal liability of the manager of the economic agent as a general form of criminal liability. Art. 51(2) of the Dutch criminal code provides for the sanctioning of natural persons "who ordered the commission of the crime, or who should control the prohibited conduct". In Spanish and Finnish legislation there is the possibility of criminal liability of the head of the economic agent, de jure or de facto Thus, natural persons who act in the name or in the interest of the economic agent will be held responsible for committing the crime, even if they do not meet the general conditions to be considered criminals, as long as the economic agent meets these conditions. These provisions are applicable to the head of the economic agent or the persons with decision-making power over his control and seem to cover the omission to exercise control within the economic agent, due to the specific reference to the fact that this person can be held responsible even if all the general conditions for holding her accountable. The Portuguese criminal system establishes liability for the action performed on behalf of others, which is partially provided for in special legislation (especially in the Penal Fiscal Code), but also in art. 12 of the general part of the Criminal Code, regarding the liability of the person charged with control duties, Portuguese law provides for a form of general liability by omission. 32In all three jurisdictions of Great Britain, the criminal liability of the manager of the economic agent is possible, to the extent that the person who committed the crime is discovered, if. lack of control or supervision can be demonstrated. 32 Mihai Adrian Hotca, Criminal Law. The general part. Criminal law and crime , CH Beck Publishing House, 2012, p.189 16 Belgium, Denmark, Germany, France, Ireland, Italy, Luxembourg, Austria and Sweden consider the responsibility of the manager of the economic agent based on the general rules regarding participation. Based on these general provisions, the French courts recognized the principle of criminal liability of the manager of the economic agent for any action or omission committed in violation of the special provisions, including the crime of tax evasion 33. Austria, at the time of introducing a specific crime regarding fraud by changing the destination of funds, also introduced a special provision regarding the criminal liability of the head of the economic agent for this crime. For all other offences, Austria applies the general rules on participation. Belgian, Danish, German, Austrian, Italian, Luxembourg and Swedish law provides for general criminal liability for acts committed by omission, which covers failure to exercise control by persons who have this obligation. Although Ireland implemented the instruments regarding the protection of community financial interests in a single normative act, it did not take over the criminal liability of the head of the economic agent. He will be liable under Irish law only if he knew about the commission of the crime by a person under his command. 2. Negligence that damages community financial interests in Romania - The Romanian legislator chose to introduce the criminal liability of the head of the economic agent by criminalizing an independent act in Law no. 78/2000, within Chapter 41, Offenses against the financial interests of the European Communities , in art.185. Thus, it is a criminal offense for the director, his administrator, the person who has decision-making or control powers within an economic agent, to violate a service duty, by failing to fulfill it or by performing it defectively, if it resulted in the commission of one of the crimes provided for in art. 18 or the commission of a crime of corruption or money laundering in relation to the funds of the European Communities, by a person under his command and who acted on behalf of the respective economic agent. This offense constitutes a special variant of the offense of negligence in service, differing from it in terms of the result produced.34 33French Court of Cassation, Criminal Division, August 19, 1997, Rev. Shock. 1997, page 863. Through this decision, it was ruled that the presumption of liability of the manager of the economic agent does not contradict the presumption of innocence. 34 Mihai Adrian Hotca, Criminal Law. The general part. Criminal liability and sanctions of Criminal Law , CH Beck Publishing House, 2013, p.178 17 This can be done by an administrator of a commercial company, who, delegating an executive director to obtain subsidies from the European Agricultural Guidance and Guarantee Fund, signs without reading the documentation presented by him, documentation that certifies larger agricultural areas than the ones actually owned by the commercial company. On the basis of the documentation sent, larger funds are received, thus prejudicing the budgets administered on behalf of the European Communities. The object of the crime - The act is directed against the social relations related to ensuring compliance with the obligation to correctly fulfill the duties of the service, duties related to the prevention of acts directed against the financial interests of the European Communities. The analyzed offense has no material object. Subjects of the offense - The active subject. The active subject is qualified, being able to be the administrator, the director, the person with control decision-making powers. It is noted that the active subject of this offense is essentially a person with decision-making or control rights within an economic unit. Right of decision no. 78/2000, within Chapter 41, Offenses against the financial interests of the European Communities, in art. 183. Thus, it is a criminal offense for the director, administrator, the person who has decision-making or control powers within an economic agent, to violate a service duty, through it or through its defective performance, if it resulted in the commission of a among the crimes provided for in art. 18 or a crime of corruption or money laundering in relation to the funds of the European Communities, by a subordinate person who acted on behalf of the respective economic agent 35. This offense constitutes a special variant of the offense of negligence in service, differing from it in terms of the result produced. This can be done by an administrator of a commercial company, who, delegating an executive director to obtain subsidies from the European Agricultural Guidance and Guarantee Fund, signs without reading the documentation presented by him, documentation that certifies larger agricultural areas than the ones actually owned by the 35Negligence that damages community financial interests is also provided for in the current draft of the Criminal Code, constitutes a crime according to art. 307, under the marginal name of "negligence in service to the detriment of the budgets of the European Communities", the non-fulfillment or defective fulfillment, due to fault, of a service duty by the director, administrator or other person with management or control powers within a legal entity for profit, if it resulted in the commission by a person under his command and who acted on behalf of the economic agent of one of the crimes provided for in art. 304 - 306, of a crime of corruption or money laundering in connection with the funds of the European Communities. 20 As a result of the investigations, it turned out that the employees of the EC Delegation acted negligently with regard to the obligation to supervise the contract, in that they did not ask the contractor to fulfill the contractual clauses in accordance with the offer made, despite clear indications that showed this inconsistency. Furthermore. A conflict of interest was detected in the person of an employee of the EC Delegation, who, being assigned to supervise the aspects of the file for the duration of the contract, did not specify the fact that he was in friendly relations with one of the directors of the consultant. Moreover, the said agent provided information and advised the consultant contrary to the policy of the EC Delegation 41. In this situation, we cannot talk about the crime of negligence that harms the community's financial interests, because the active subject, although he has control powers, does not meet the special condition of being part of the management bodies of the economic agent, being an official of the Communities European. According to the Romanian legislation, the employees of the EC Delegation could be liable for the crime of negligence in service, provided by art. 249 Criminal Code. The civil servant in friendly relations with the director of the consultant could be liable for the crime of conflict of interest, provided in art. 2531 Criminal Code. 42However, the commission of the offense provided for by art. 181 From Law no. 78/2000.43 Form of guilt The act is committed through fault, regardless of its modality. The provisions of the PIF Convention do not specify anything regarding the form of guilt in the case of the liability of the manager of the economic agent. Consequently, this can be both the intention and the fault. In our legislation, the deed of the leader of the economic agent will have a different legal classification depending on the form of guilt. Thus, an act committed with intent will attract the criminal liability of the manager of the economic agent for instigation or complicity in the crime committed by the subordinate (fraud affecting the community's financial interests, corruption or money laundering). 41OLAF Report 2004, page 33. 42 Cristina Rotaru, Valerian Cioclei, Criminal Law. The special part. Seminar notebook. Edition 2 , CH Beck Publishing House, 2014, p.145 43 Mihai Adrian Hotca, Maxim Dobrinoiu , Offenses provided for in special laws. Comments and explanations. August 2008 , CH Beck Publishing House, 2008, p.144 21 However, if the deed of the manager of the economic agent is committed through fault, the provisions of art. 181 From Law no. 78/2000.44 The negligence shown by the external control body cannot fall under this crime. In this case, if the constitutive elements of this crime are met, negligence in service provided for by art. 249 Criminal Code. The connection with other crimes - The act criminalized in art. 185 of Law no. 78/2000 constitutes a special variant of the crime of negligence in service provided for in art. 249 Criminal Code. 2.2. Corruption offences Corruption crimes - The fight against corruption at the international level has recently intensified, gaining an even greater scope than the fight against community fraud. In the Communication on a coherent community policy against corruption 45, the European Commission reviewed the achievements at the community level in this field, at the same time indicating the directions to follow in order to achieve a more effective fight against this scourge. Regulations in the field of the fight against corruption can be found both at the community level and at the international level. Among the community instruments to fight corruption, we can mention the First Protocol of the PIF Convention, as well as the Convention on the fight against corruption involving officials of the European Communities or officials of the Member States, which is still in the process of ratification. At the international level, the Convention of the Organization for Economic Cooperation and Development (OECD) on combating corruption of foreign civil servants in international transactions , the Criminal Convention of the Council of Europe on corruption, the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption have been 46adopted 47. 44 Vasile Dobrinoiu, Ilie Pascu, Traian Dima, Mihai Adrian Hotca, Costica Paun, Ioan Chis, Mirela Gorunescu, Maxim Dobrinoiu , New Criminal Code Annotated. Volume 2 - The special part , Universul Juridic Publishing House, 2012, p.121 45COM (2003) 317 final clin 28 May 2003. First Protocol of the Convention on the protection of the financial interests of the European Communities, published in JOCE no. C 313 of October 23, 1996, page 2. 46The convention was signed on January 27, 1997 and entered into force on July 1, 2002. The text of the convention, details regarding its ratification and implementation as well as the evaluation reports can be found at www.greco.coe.int. 47The convention was signed on November 21, 1997 and entered into force on February 15, 1999. The text of the convention, details regarding its ratification and implementation as well as the evaluation reports can be found at www.oecd.org. 22 The main purpose of the criminalization of acts of corruption defined by the First Protocol of the PIF Convention is to ensure the sanctioning of corruption crimes committed in a Member State by community officials or officials of another Member State. For this purpose, art. l of the First Protocol of the PIF Convention contains a definition of a community official and an official of another Member State. The OECD Convention on Combating Corruption of Foreign Public Officials in International Transactions extends the obligation to criminalize acts of corruption also to officials of a third state, and the Criminal Convention of the Council of Europe on Corruption includes in the scope of corruption offenses and officials of international public organizations. Unlike the other community or international instruments that establish the obligation of the signatory states to criminalize acts of corruption, the provisions of the First Protocol of the PIF Convention have a narrower scope of application. Thus, the acts of corruption criminalized in the First Protocol of the PIF Convention refer only to actions or inactions likely to harm the financial interests of the European Communities. What is desired at the community level is the creation of special crimes of corruption to be integrated into the legislation regarding the protection of the financial interests of the European Communities. We will illustrate some examples from judicial practice that highlight this special type of corruption. Favoritism, in November 2002 OLAF received information regarding a possible improper use of community funds in the Representation of the European Commission in a Member State. The accusations mainly concerned the unfair obtaining of benefits by employees of the Representation and the favoring of third parties. Following the investigation, inaccurate statements from a community agent regarding expenses were discovered. Irregularities were also discovered regarding the confidential information of the Representation. In addition, certain community agents were in a conflict of interest in that they were part of the commission for selecting candidates with whom they had special relations" 48. Unjustified allowances. OLAF received information from the Directorate General of the Commission regarding accusations against a Community agent. 48OLAF Report 2004. pp. 33-34. 25 Member States (Belgium, Spain, France, Portugal, Luxembourg, Great Britain) did not take legislative measures to implement the First Protocol upon its ratification, considering that the existing provisions are sufficient to cover the Community provisions. Moreover, most of them (Belgium 52, France 53, Luxembourg 54, Portugal 55) had recently modified their legislation in order to strengthen anti-corruption measures. As I have shown, only Greece and Ireland have introduced new criminalizations regarding acts of corruption likely to harm the financial interests of the European Communities. Denmark and France have amended their legislation to be able to sanction acts committed by community officials or officials of other Member States, in Danish law, the crime of passive corruption does not expressly refer to community officials, but refers to officials or other employees of public international organizations. Belgium, Italy, Luxembourg, the Netherlands, Austria, Portugal and Finland define the crime of passive corruption and extend its scope to community officials or officials of other Member States. The provisions of the Portuguese law refer to officials from the European Union. Belgium, the Netherlands and Finland do not explicitly extend the criminal provisions to Community officials, but refer to officials or other employees of public international bodies in general. Although initially the Finnish criminal law was amended in order to explicitly criminalize acts of corruption committed by community officials, the last amendment of the legislation, after the ratification of the Criminal Convention on Corruption of the Council of Europe, extended the scope of active subjects to officials of international public bodies. In Austria, passive corruption can fall under the provisions of Section 153 of the Penal Code regarding abuse of office, in the event that the official duties of the perpetrator include the administration of other people's funds, including community funds, and the perpetrator knowingly abuses his powers thereby causing financial harm. The German Penal Code penalizes passive corruption by performing an act in breach of official duties, and in a separate provision explicitly penalizes the omission to perform an act in breach of official duties. Also through a separate provision, this time in 52Law of 10 February 1999 on the fight against corruption, in the Belgian Gazette of 23 March 1999. 53Law no. 2000-595 of June 30, 2000 amending the Criminal Code and the Code of Criminal Procedure regarding the fight against corruption, in the Official Journal of the French Republic of July 1, 2000. 54The law of January 15, 2001 on the ratification of the OECD Convention on combating corruption of foreign civil servants in international transactions, Official Journal of the Grand Duchy of Luxembourg no. 17 of February 7, 2001. 55Law no. 108/2001 amending the legal provisions regarding the crimes of influence peddling and corruption, in the Journal of the Republic no. 276 of November 28, 2001. 26 the law implementing community provisions, the sphere of active subjects is extended to community officials or officials of other Member States. In Spain and Sweden, the Penal Code defines passive corruption as a crime, but there is no explicit reference to the possibility that the crime may also apply to community officials or officials of other Member States. In both states, it is argued that the definition given in the respective legislation of the notion of civil servant is comprehensive, including the mentioned hypotheses. In all three UK jurisdictions, passive corruption in public institutions is an offense set out in a special law - the Anti-Terrorism and Security Act 2001. Section 108(3) of the Act states that "public institution" means any institution which exists. In a country or territory outside Great Britain and is equivalent to the notion of "public body" in Great Britain. It is beyond any doubt that the notion of an official of a Member State is covered by these amendments. But it is not. equally clear if the community official can commit an act of passive corruption according to the British law, because the community institutions can hardly be included in the notion of public institutions in the legislation of Great Britain. Passive corruption is also a common law offense in England, Wales and Northern Ireland applicable to any public servant, while in Scotland it only applies to judicial officers. In Belgium, Denmark, Spain, France, Italy, Luxembourg, the Netherlands, Portugal, Finland and, as regards passive corruption as a crime provided for in a special law, in Great Britain both passive corruption through breach of official duties and carried out in their fulfillment. In Belgium, France and Luxembourg there is no difference in treatment between the two ways of committing the crime. In Denmark, Spain, Italy, the Netherlands, Portugal and Finland, on the other hand, passive corruption carried out in the performance of official duties is punished more easily than that carried out by violating them, applying, however, in both ways, both to national officials, as well as community officials or other Member States. In Germany and Austria, however, although corruption committed in the performance of official duties constitutes a crime, this modality applies only to national officials. Greece, Ireland and Sweden do not criminalize passive corruption committed by an official in the proper performance of official duties. 2.2.2. Active corruption 27 Active corruption is provided for in art. 3 of the Protocol and consists in the deliberate action of a person who promises or gives, directly or through an intermediary, an advantage of any kind to an official for himself or for a third person, in order to act or to refrains from acting in accordance with official duties or in the exercise of office by violating official duties, in a manner likely to affect the financial interests of the European Communities. This crime is the corollary of the act provided for in art. 2 of the Protocol, seen from the perspective of the corrupt person 56. Regarding the legislative activity carried out by the Member States for the implementation of community or international instruments, the aspects shown during the analysis of the crime of passive corruption are also valid in the case of the crime of active corruption. Three Member States criminalize active and passive corruption through a single offense (Belgium, Greece and Great Britain). Among those that separate active from passive corruption, nine (Germany, Spain, Ireland, Italy, Luxembourg, Austria, Portugal, Finland, Sweden) use a common definition regarding the notion of official, while three others (Denmark, France and the Netherlands) define the notion of civil servant twice. The offense of abuse of office in Austria applies to active corruption, to the extent that participation in the crime is sanctioned. 2.3. The provisions existing in the Romanian legislation 2.3.1. Corruption offenses themselves Romanian legislation is complex in terms of corruption offences. They are provided both in the criminal code and in special laws. The law distinguishes between three categories of corruption crimes. Thus, we are dealing with crimes Corruption per se, crimes assimilated to corruption crimes and crimes directly related either to corruption crimes or to those assimilated to them. 56The report on the implementation by the Member States of the projection of the financial interests of the European Communities and its Protocols, Brussels, October 25, 2004, COM (2004) final. pp. 36-38. 30 or public institutions 62, in the framework of an action to sell them, carried out by those who have leadership, administration or management duties; - Granting of subsidies in violation of the law, failure to track, according to the law, the destinations of the subsidies; - The use of subsidies for purposes other than those for which they were granted, as well as the use for other purposes of loans guaranteed from public funds or to be repaid from public funds. According to art. 11 paragraph 1, the act of the person who, by virtue of the position, attribution or assignment received, has the task of supervising, controlling or liquidating a private economic agent, of fulfilling any assignment for it, of mediating or facilitate the performance of commercial or financial operations by the private economic agent or to participate with capital in such an economic agent, if the act is of such a nature that it would directly or indirectly bring undue benefits. Art 12 of Law no. 78/2000 establishes that the following acts are punishable by imprisonment from 1 to 5 years, if they are committed for the purpose of obtaining money, goods and other improper benefits for oneself or for another: - Carrying out financial operations, as commercial acts incompatible with the function, attribution or task that a person performs or concluding financial transactions, using the information obtained by virtue of his function, attribution or assignment; - Using in any way, directly or indirectly, information that is not intended for advertising or allowing unauthorized persons access to this information. It constitutes a crime punishable by imprisonment from 1 to 5 years, the act of the person who performs a leadership position in a party, in a trade union or patronage or within a legal person without a patrimonial purpose, who uses his influence or authority for the purpose of obtaining for himself or for another of money, goods or other improper benefits. In the case of crimes assimilated to corruption crimes, as a rule, the attempt is possible and punishable. Given that the offenses provided for in art. 10-13 of Law no. 78/2000 are crimes of danger, the perfect attempt is not possible because in the hypothesis 62 Alexandru Boroi , Norel Neagu , Harmonization of Romanian criminal legislation with European legislation on corruption , Law no. 4, 2003, page 110. 31 in which the incriminated action is carried out entirely automatically, the immediate follow-up is also produced and the deed is consummated.63 The crimes provided for in art. 12 and art. 13 are more serious and the maximum penalties provided by the law are increased by 3 years, if the acts were committed in the interest of an organization, association or criminal group or one of its members or to influence the negotiations of international commercial transactions, exchanges or international investments 64. The offenses provided for in art. 10-13 have a subsidiary character. Art. 16 of the law provides that if the facts provided in these texts constitute, according to the Criminal Code or special laws, more serious crimes, they are punished under the conditions and with the sanctions established in these laws. According to art. 131 of Law no. 78/2000 the crime of blackmail 65, provided for in art. 194 of the Criminal Code, in which a person is involved among those provided for in art. 1, is punishable by imprisonment from 7 to 12 years. According to art. 132 66the crime of abuse of office against public interests, the crime of abuse of office against the interests of individuals and the crime of abuse of office by restricting some rights, if the civil servant obtained for himself or for another a patrimonial or non-patrimonial advantage, is punished with imprisonment of at 3 to 15 years. It is noted that the text of the law conditions the application of the special provisions regarding the sanctioning of the perpetrator of the crime obtaining some advantages. The "advantages" obtained do not constitute the following of the crime and are not part of the content of the crime. We must not confuse the immediate follow-up provided for each individual crime with the concrete advantages obtained. 2.3.3 Crimes directly related to corruption crimes Under this name, in the law for the prevention, detection and sanctioning of acts of corruption, there are several offenses provided either in the Criminal Code or in various special laws with criminal provisions which, by their method of execution, their material 63 Lidia Barac , Criminal Law. The special part University course. According to the new Criminal Code , Universul Juridic Publishing House, 2014, p.156 64LIT b) and c) of art. 10 were amended by Law no. 69/2007 regarding the amendment of letter b) and c) of art. 10 of Law no. 78/2000 for the prevention, discovery and sanctioning of acts of corruption, published in M. Of. no. 215 of March 29, 2007. 65Art. 131 was introduced by Law no. 161 of April 19, 2003, published in M. Of. no. 279 of April 21, 2003. 66304 Art 132 was introduced by pet. 1 of art. unique from Law no. 521 of November 24, 2004 published in M Of no. 1 123 of November 29, 2004 32 object or their intended purpose, have a direct connection with the crimes of corruption or crimes assimilated to them, which we presented in paragraphs 1 and 2. According to art. 17 of Law no. 78/2000, the following crimes are directly related to corruption crimes, to crimes assimilated to them or to crimes against the financial interests of the European Communities:67 A) concealment of assets derived from the commission of a crime Provided in the 2nd and 3rd sections, as well as favoring the persons who have committed such a crime; B) association in order to commit a crime provided for in sections 2 and 3 or letter a) of this article; C) forgery and the use of forgery committed in order to hide the commission of one of the crimes provided for in the 2nd and 3rd sections or committed in achieving the goal pursued by such a crime; D) abuse of office against public interests, abuse of office against the interests of individuals and abuse of office by restricting certain rights, committed in the pursuit of the intended purpose, through a crime provided for in the 2nd and 3rd sections; D1) blackmail, committed in connection with the crimes provided for in the 2nd and 3rd sections; E) money laundering crimes, provided for in Law no. 656/2002 for the prevention and sanctioning of money laundering, when the money, goods or other values come from the commission of a crime provided for in the 2nd and 3rd sections; F) smuggling of goods resulting from the commission of a crime provided for in the 2nd and 3rd sections or committed in the pursuit of the purpose pursued by such a crime; G) the offenses provided for in Law no. 87/1994 68for combating tax evasion, with subsequent amendments, committed in connection with the crimes provided for in the 2nd and 3rd sections; H) the crime of fraudulent bankruptcy and the other crimes provided for in Law no. 31/1990 on commercial companies 69, republished, with subsequent amendments and additions, committed in connection with the offenses provided for in sections 2 and 3; 67 Mihai Adrian Hotca, Maxim Dobrinoiu , Elements of Criminal Business Law , CH Beck Publishing House, 2009, p.154 68Law no. 87/1994 was repealed by the provisions of Law no. 241/2005 regarding the prevention and combating of tax evasion, published in M. Of. No. 672 of July 27, 2005. The provisions of letter g must be referred to this new normative act. 35 number of countries being attracted to the realization of criminal scenarios and particularly harmful to the financial interests of the Union34. It is obvious the insufficiency of reparative sanctions specific to administrative law and the need to impose repressive sanctions specific to criminal law. According to the experts of the European Union 74, the fight against this form of crime is hindered, on the one hand, by the lack of continuity of the repressive action (the competence of the repressive authorities is limited, in essence, to the national borders), and, on the other hand, by the differences that exists between the repressive regulations of different states (regulations related to the definition of the crime, criminal liability, punishments, rules of procedure, probation, etc.) It was also argued that granting some competences to Community law in criminal matters means violating the fundamental Treaties of the European Union, which leave the powers of criminal regulation in the competence of the Member States; that it would lead to the creation of a supranational criminal law that would not be able to guarantee compliance with the fundamental principles of criminal law, because community law would be an emanation of administrative bodies (the Council composed of government representatives and the European Commission) and not of the European Parliament and that the European Union, even if it is subject to financial fraud like any public entity with funds, repressive measures could only be taken in compliance with the fundamental principles of criminal law (such as the principle of the legality of crimes and punishment, the principle of guilt, of the individualization of the sanction and others) 75. In order to overcome these obstacles, efforts have been made so far in three directions, namely: assimilation, that is, the adoption of a criminal treatment of acts that affect the Union budget, similar to the one used in the internal law to sanction acts that affect national financial interests. Another way would be that of intensifying the cooperation of the states in order to carry out effective actions to combat the mentioned phenomenon and, finally, the harmonization of national legislations, i.e. their approximation by removing the most important differences and creating a legal framework, if not identical, at least with smaller differentiations, intended to ensure an appropriate repression of aggressions against the budget of the European Union. 74 Simone White , Protection of the Financial Interests of the European Communities. The Fight against Fraud and Corruption , Ed. Kluwer Law International, Hague, 1998, p.178 75 John AE Vervaele , La fraude communautaire el le droit penal européen des affaires , Paris, Presses Universitaires de France, 1994, p.165 36 The increase in the criminal phenomenon and the extent taken by the frauds to the detriment of the European Union have shown that the methods tried so far have not yielded results. Harmonization and assimilation continued to face the striking differences between the legislative systems of the member countries and the impossibility of their correlation, and cooperation appeared difficult to achieve in criminal matters, evidenced by the multiple draft international conventions in this matter that have not been ratified by the member states, they still remain in the initial stage.76 In these conditions, the issue before the community law is either to resign and wait many years from now for an improvement and a gradual approximation of the national repressive systems, or to orientate towards a new solution that would be the unification of the repressive provisions of the Member States of the European Union, at least in the direction of protecting financial interests, if not in other directions.77 To what extent this latter solution is feasible, we will analyze in the next subsection. 3.2. Protection of community financial interests through legal instruments adopted at the level of the European Union The competence of the European institutions to impose regulations in the field! Criminal law has been a thorny issue throughout time. Starting with the Treaty of Rome and until the beginning of the 70s, the Union had no competence in the field of criminal law. The only exceptions concerned Perjury and protecting nuclear secrecy. The Schengen agreements allowed for the first time to approach this aspect, but only to prohibit the direct intervention of the Communities in this field.78 Criminal law entered the competence of the Union with the appearance of the European Union Treaty, which established "judicial cooperation in criminal matters" 79as a matter of common interest, in the sense of art. Kl (which will become art. 29 by the Treaty of Amsterdam). 76 Costică Voicu - Fraud Investigation - master's course , S1 publishing house TECH, Craiova2009, p.148 77 Costica Voicu , Alexandru Boroi , Criminal law of business, CHBeck Publishing House, Bucharest, 2006, p.157 78 Cristina Rotaru, Valerian Cioclei, Criminal Law. The special part. Seminar notebook. Edition 2 , CH Beck Publishing House, 2014, p.123 79 Nicolae Ghinea - Fraud Investigation - university course , SITECH Publishing House, Craiova2008, p.276 37 However, the criminal sanction appears only in the Treaty of Amsterdam, where, in art. 31 pet. E) it is specified that "joint action in the field of judicial cooperation in criminal matters aims, among other things, at the progressive adoption of measures establishing minimum rules regarding the constitutive elements of crimes and applicable sanctions" in the field of organized crime, terrorism and drug trafficking. This introduction of the criminal sanction in the sphere of competence of the European Communities, however, requires some clarifications. Initially, the Communities could impose on the Member States the obligation to sanction certain acts, but not in the field of criminal law. Thus, the states had the obligation to take the necessary measures to ensure the fulfillment of the obligations arising from the treaty. As time passed, the states' freedom in choosing these measures decreased. Thus, the Court of Justice of the European Communities estimated in a decision that the Member States had to "ensure that infringements of Community law are sanctioned under substantive and procedural conditions similar to those applicable to infringements of national law and that ensure the sanction is effective, proportionate and dissuasive". Furthermore, the choice of means by the Member States began to be limited by the provision of increasingly detailed measures and with an increasingly large scope of coverage on the part of the Communities. The influence of criminal law through community legal instruments began to manifest itself recently, in two ways. A first aspect of the influence of the Communities in the field of criminal law is the neutralizing or negative effect, which manifests itself when the national criminal sanctions are incompatible with the community sanctions. It is about the prohibition of the taking by the Member States of measures that would affect the community provisions, or the abolition of the measures thus taken. Thus, according to the principle of proportionality, the Court of Justice of the European Communities decided that any sanction disproportionate to the nature of the act committed constitutes a measure equivalent to a prohibited restriction. Based on this reasoning, the fact that a national of a Member State did not declare his presence to the police on the territory of another Member State within three days cannot be sanctioned with a custodial sentence, which would be a disproportionate punishment.80 80 loana-Cristina Morar, Mariana Zainea , Judicial cooperation in criminal matters, Collection of judicial practice , Ed. CH Beck, Bucharest, 2008, p.176 40 A recent decision of the Court of Justice of the European Communities clarifies the distribution of competences between the first and third pillars in the field of criminal law. It all started with the request of the European Commission addressed to the Court of Justice of the European Communities to cancel the Framework Decision 2003/80/JAI of January 27, 2003 on the protection of the environment by means of criminal law, which provided for the obligation of the Member States to incriminate and 84punish the facts directed against the environment described in the decision. The reason for this annulment request was the legal basis that served to adopt the respective framework decision, namely the Treaty establishing the European Union (TEU), Title VI (judicial and police cooperation in criminal matters). In this case, the Commission maintains that the adoption of the provisions of criminal law in the Framework Decision should not have been made on the basis of the provisions of the third pillar (Title VI TUE), but on the basis of the provisions of the first pillar, respectively art. 175 of the Treaty establishing the European Communities (TCE), which provides for the adoption of measures at community level to protect the environment. The Court decided to cancel the decision, but not because it included provisions of criminal law, but because the legal basis was established in violation of art. 47 of the Treaty establishing the European Union, wrongly in Title VI of the TEU, instead of art. 175 TCE. The Court established that although, as a general rule, neither criminal law nor criminal procedural law fall within the competence of the Communities, this does not prevent the Community legislature, when the application of effective, proportionate and dissuasive sanctions constitutes an essential measure to combat certain acts serious actions against the environment, to adopt measures in the field of criminal law of the Member States, considering them necessary for the effective application of the community rules established in the field of environmental protection. Although this decision was taken only with regard to a certain normative act and a certain community policy (the environment), it nevertheless establishes general principles that do not apply only to the respective community policy, the same arguments being valid in their entirety and in as regards the other community policies, as well as in the field of the four freedoms (free movement of persons, goods, services and capital). 84Framework decision no. 2003/80/JAI of January 27, 2003 regarding the protection of the environment by means of Criminal Law (OJ L 29/2003) 41 The Court's decision establishes the fact that criminal law does not constitute a community policy, and the action of the Communities in this field is based on implicit competences associated with a specific legal basis. Thus, appropriate measures can be adopted on the basis of community legislation only at the sectoral level and only under the condition of the existence of a clear need to combat some serious facts that impinge on the achievement of the objectives and the implementation of community legislation. Also, the criminal law measures taken must ensure the effective application of community policies or the proper functioning of freedoms. The Court makes no distinction regarding the nature of the criminal law measures adopted. The Court's approach is functional. The foundation that justifies the adoption of criminal law measures through community means is the need to ensure compliance with community rules and regulations. The need to adopt criminal provisions will be established in each individual case. When in a certain sector it is considered that such measures are justified to ensure the effective application of Community legislation, these measures will be able to include the principle of resorting to criminal sanctions, establishing the constitutive elements of crimes, and, where necessary, the nature, scope scope and degree of precision of criminal sanctions, as well as other criminal law institutions. The specific requirements regarding the application of the respective community policy or freedom make the connection with the legal basis of the Treaty establishing the European Communities, thus providing the justification for the adoption of criminal measures. From case to case, depending on the need, the degree of involvement of the Communities in the field of criminal law will be determined, while giving priority to the application in the Member States, as far as possible, of non-criminal horizontal measures. However, where the need to implement Community legislation requires it, the freedom of the Member States to choose the applicable sanctions can be limited, and only criminal sanctions can be applied. Although the community legislation can require the adoption of criminal measures to achieve the proposed goals, this can only be achieved with the fulfillment of two conditions: necessity and consistency. Thus, any use of criminal provisions must be justified by the need to effectively implement a community policy. In principle, the responsibility for the application and implementation of Community legislation belongs to the Member States. 42 In certain cases, however, it is necessary to direct the action of the Member States, clarifying the type of criminalized behavior and/or the type of applicable sanctions or other criminal law measures appropriate to the sector concerned. In any case, these measures must respect the principles of subsidiarity and proportionality at any stage of the procedure. Criminal provisions adopted at sectoral level on the basis of Community legislation must comply with the overall and consistent systematization of criminal law in general and European Union legislation, regardless of whether these provisions are adopted on the basis of the first or third pillar, in order to ensure integration and their assimilation.85 These provisions must not be fragmented or contrary to other previously adopted provisions. If specific provisions are adopted in a certain field for the implementation of the objectives established by the TCE, the relationship between these provisions and those adopted at a horizontal level (at the level of judicial cooperation) must be clarified. Consistency also requires checking if the adopted provisions do not establish contradictory obligations for the persons to whom they are addressed. The interpretation given to the Court's decision by the Commission led to the distribution of competences between the first and third pillars in the field of criminal law as follows:86 - The criminal law provisions necessary for the effective implementation of Community legislation fall within the competence of the Communities on the basis of the Treaty establishing the European Communities. This leads to the cessation of the use of the double mechanism (directive or regulation and framework decision), which was often used before the appearance of the Court's decision. Thus, in this situation, it is necessary to adopt a criminal provision for the effective application of Community legislation, and it will be adopted only on the basis of the first pillar, or there is no need to resort to criminal law at the level of the Union, and in this case specific criminal legislation is not entered. - The horizontal criminal law provisions intended to encourage judicial and police cooperation in a broad sense, including measures regarding the mutual recognition of judicial decisions, measures based on the principle of availability, as well as measures regarding the harmonization of criminal provisions in relation to the creation of the space 85 loana-Cristina Morar, Mariana Zainea , Judicial cooperation in criminal matters, Collection of judicial practice , Ed. CH Beck, Bucharest, 2008, p.175 86 Costica Voicu , Alexandru Boroi , Criminal law of business, CHBeck Publishing House, Bucharest, 2006, p.157 45 adoption by the community legislature of measures of a criminal nature that would be directly applicable in the Member States, there is no competent community body to effectively carry out these measures and apply the sanctions imposed by them. This would mean the existence of a community police with competence throughout the territory of the Member States and the existence of a community court competent to judge criminal acts committed in any of the Member States. Or, until this moment, the only step that has been taken in this direction is the provision in the European Constitution, taken over by the Treaty of Lisbon, of the establishment of a European prosecutor with competence on the entire community territory. However, the criminal acts will be judged by the national courts of the Member States, and the appeal before the Court of Justice of the European Communities could only concern procedural issues, and not substantive issues. 90So the creation of a community criminal law that means the imposition of a community sanction and its application by the community bodies cannot be realized in the near future. The creation of a general set of rules at community level in the field of criminal law, rules applicable by the national courts of the Member States, could be feasible. As far as indirect sanctions are concerned, a distinction can be made between sanctions with direct applicability in domestic law (adopted by a regulation, according to the current community legislation, or by a European law) and those that require a subsequent action by the Member States to implement the provisions of the community act that contains criminal provisions (such as the directive or the framework decision). It is preferable to adopt a normative act with direct applicability, leading to the uniformity of application throughout the community territory. Normative acts that require further intervention by the Member States for their implementation have the disadvantage of leaving it up to them, even to a limited extent, to choose the modality and form of achieving the result. Thus, if this possibility exists, some Member States may choose to apply administrative sanctions instead of criminal sanctions, or the differential establishment of the constitutive elements of the acts characterized as crimes, in relation to the community act. This can lead to the different application of this act on the territory of the Member States, which, from the point of view of crimes of a cross-border nature, can lead to 90 Ion Ristea , Criminal Law. The special part. Vol. I , Universul Juridic Publishing House, 2014, p.231 46 different sanctions for the perpetrators depending on the place where the crime was committed or where the crime was judged.91 In the event of the adoption of some community normative acts, they must have direct applicability in the Member States, especially since the community institutions can intervene in the field of criminal law only if and to the extent that the proposed action cannot be carried out satisfactorily by the Member States and can be more well fulfilled, consequently, in relation to its extent and effects, at the level of the Community. At the moment there is only one decision of the Court of Justice of the European Communities which establishes that normative acts can be adopted by the community institutions in the field of criminal law with the help of the instruments from the first pillar (including here the regulation). The competence of the community bodies regarding the direct applicability of criminal provisions seems to be found in the Treaty of Lisbon. Its provisions come to extend the competence of community bodies, both by widening the scope of crimes for the regulation of which they could intervene, as well as regarding the decision-making and the implementation of its provisions. Thus, the provisions of art. 280 from Chapter 6, Combating fraud, are important, which take over the provisions of art. 280 TCE (which regulates the principle of assimilation of community financial interests with national interests), with two significant differences: there is no longer any reference to the limitation of legislation in the field of the application of national criminal law or the administration of justice, and the legislative instrument provided is the law or the European framework law.92 This means that the Community legislative institutions acquire the competence to legislate in the matter of criminal law, a competence which, a little theoretically, is similar to that belonging to the Member States (but only in a limited field, namely that of the protection of the financial interests of the European Union). Very important, however, is the provision that makes it possible to draft a European law on the matter. This means that the Constitution provided for the possibility of establishing a source with direct applicability in the matter of criminal law, a situation taken over by the Treaty of Lisbon. 91 Florin Răzvan Radu , International and European judicial cooperation in criminal matters , Ed. CH Beck, Bucharest, 2008 92 Albin Eser, Otto Lagodny, Christopher Blakesley , The Individual as Subject of International Cooperation in Criminal Matters , Nomos Verlagsgesellschaft Baden-Baden, 2002, p.172 47 European law is governed by the principles of primacy of Community law over national law and of direct application, resulting in its binding effect on the territory of the Member States. Although a unification of criminal provisions in the European judicial area would be beneficial from the point of view of preventing and punishing crimes of a transnational nature and of equal treatment in terms of criminals and victims of crimes, question marks are raised regarding the legitimacy of the adoption by the community bodies of such provisions. This issue of the legitimacy of the Communities' competence in the field of criminal law was mainly based on two arguments. The first, of a political nature, was based on the idea that criminal law implies the right to punish, which is one of the fundamental attributes of the sovereignty of states. The second results from the functioning of the community structures that could not satisfy the democratic demands in the matter, not possessing the necessary bodies, such as a democratically elected legislative body, a European police, or a competent court in criminal matters 93. The right to punish is a fundamental attribute of states' sovereignty. However, considering the recent crisis of the national criminal systems, many states had to adopt new criminal codes in order to cope with the current needs generated by the ever-increasing orientation towards European integration. Also, in certain areas, the intensification of transnational criminal activity was observed, necessitating the coordination of efforts to identify criminal networks and bring them to justice. It is therefore necessary to solve these issues at the community level, even through criminal law means. Regarding the guarantees offered by the community bodies, the current situation is likely to cause concern. The foundation that legitimizes the adoption of criminal measures at the level of the Member States is the national Constitution, which establishes the fundamental rights and freedoms and the democratic principles for their protection.94 At the level of the Communities, it is difficult to find this foundation. The European Communities (and implicitly the institutions that represent them) are not signatories of the European Convention on Human Rights The lack of a legal basis in which to anchor the fundamental principles that govern criminal law is amplified by the increased possibility of 93 Florin Răzvan Radu , International and European judicial cooperation in criminal matters , Ed. CH Beck, Bucharest, 2008, p.179 94 Eyula Fabian, Community institutional law , Sfera Juridică Publishing House, 2009 50 Established following the entry into force, on October 1, 1998, of the Europol Convention of July 26, 1995, Europol is also mentioned in the Treaty Establishing the European Union, art. 29-30.99 The European Council in Tampere (Finland) in October 1999 provided for the establishment, by the end of 2001, of an institution composed of European magistrates, Eurojust, with legal personality and having powers of investigation in the field of serious crime. The main objective was to simplify the execution of rogatory commissions, which often prevent magistrates from Member States to quickly conduct investigations in other EU Member States. The Nice Treaty of February 2001 decided the creation of the European Judicial Cooperation Unit (Eurojust). Art. 31 TEU was supplemented with a paragraph specifying the encouragement of cooperation through Eurojust in three directions: by Eurojust's contribution to good coordination between the national authorities of the Member States with attributions in the criminal process; by Eurojust's assistance in investigations into serious cross-border crime, especially organized crime, taking into account in particular the analyzes carried out by Europol: 100by facilitating Eurojust's close cooperation with the European Judicial Network in order to facilitate the execution of letters rogatory and the resolution of requests for extradition. Eurojust was created by a Council decision of 28 February 2002. As can be seen, these bodies have either administrative powers (OLAF) or police or judicial cooperation powers (Europol, Eurojust). None of these bodies has powers similar to a judicial body in the criminal process, so the conduct of criminal investigations of a transnational nature is quite difficult, there are impediments regarding the recognition of evidence administered abroad and court decisions issued in another Member State, there is a need for a judicial body with competence in the entire community territory and some provisions regarding the admissibility of the evidence administered in this territory. Therefore, the provisions of the Treaty of Lisbon regarding the establishment of a European Public Prosecutor's Office, as well as the other procedural provisions, can only be welcomed in the fight against fraud affecting the community's financial interests. The 1995 Convention on the Protection of the Financial Interests of the European Community (PIF Convention) considers combating fraud affecting the Community's 99 Costică Voicu - Fraud Investigation - master's course , S1 publishing house TECH, Craiova2009, p.134 100 Florin Răzvan Radu , International and European judicial cooperation in criminal matters , Ed. CH Beck, Bucharest, 2008, p.156 51 financial interests as one of the priority objectives of the European Union and a matter of common interest within the framework of cooperation between member states. In this context, the PIF Convention provides for the need to adopt a common definition of the notion of fraud, as well as its placement in the field of criminal law. The normative framework for the protection of community financial interests against fraud in Romania is based on Law no. 78/2000 for the prevention, discovery and sanctioning of acts of corruption; Government Ordinance no. 79/2003 regarding the control and recovery of community funds, as well as related co-financing funds used improperly; 101Law no. 656/2002 for the prevention and sanctioning of money laundering; Law no. 241/2005 to combat tax evasion; Regulation of the National Bank of Romania no. 8/2002 regarding the procedure in case of detection of fake or counterfeit euro banknotes and coins. The institutional framework involved in combating fraud in Romania includes the judicial bodies with competence in criminal investigation and prosecution and judging cases regarding crimes against the financial interests of the European Communities (National Anti-Corruption Directorate, the Prosecutor's Office attached to the High Court of Cassation and Justice, the ordinary prosecutor's offices attached to competent courts), as well as authorities involved in the anti-fraud fight (Ministry of Administration and Interior, Financial Guard, DLAF, National Office for the Prevention and Combating of Money Laundering, National Bank of Romania). With regard to money laundering, the regulatory framework for the control and fight against money laundering was perfected, ratifying the European Convention on the laundering, discovery, seizure and confiscation of the proceeds of crime, concluded in Strasbourg on November 8, 1990, by Law no. 263/2002 102for the ratification of the European Convention on the laundering, discovery, seizure and confiscation of the proceeds of crime. Also, through the adoption of Law no. 21/1999 for the prevention and sanctioning of money laundering, the National Office for the Prevention and Combating of Money Laundering - ONPCSB, a specialized body subordinated to the Government, was established. According to art. 6 of Law no. 656/2002, ONPCSB will proceed to analyze and process the information, and when it finds the existence of solid indications of money 101 Cristina Rotaru, Valerian Cioclei, Criminal Law. The special part. Seminar notebook. Edition 2 , CH Beck Publishing House, 2014, p.134 102 Gheorghe Ivan , Criminal Law. The special part. With references to the New Penal Code, edition 2 , CH Beck Publishing House, Bucharest, 2010., p.153 52 laundering, it will immediately transmit the information to the general prosecutor of the Public Prosecutor's Office attached to the High Court of Cassation and Justice. According to art. 3, ONPCSB may order the suspension of a financial operation for three working days, if there are suspicions that it is aimed at money laundering. The jurisdiction of criminal prosecution in the case of money laundering offenses belongs to the DIICOT Directorate for Investigating Organized Crime and Terrorism, a structure of the Prosecutor's Office attached to the High Court of Cassation and Justice, within the Public Ministry, specialized in combating organized crime and terrorism . In order to achieve the purpose for which it was created, ONPCSB cooperates with the institutions and persons involved in combating money laundering, provided for in art. 8 of Law no. 656/2002, having concluded 25 protocols with interdepartmental, interministerial and interservice reporting entities, including the intelligence services.103 Permanent updating of the system of cooperation protocols and incident information in law enforcement, as well as the creation of a culture of inter-institutional cooperation at the expense of competition between institutions are prerequisites for an efficient functioning of the system for preventing and combating money laundering. In the case of crimes against the financial interests of the European Union, provided for in Law no. 78/2000, with subsequent amendments and additions, the criminal investigation is mandatorily carried out by the prosecutor. In order to quickly and thoroughly carry out the activities of discovery and prosecution of corruption crimes, DNApolice officers work in the framework, constituting the judicial police of DNA. They carry out their activity only within the DNĂ, under the exclusive authority of the chief prosecutor of DNA. In conclusion, obtaining the appropriate effect in the anti-fraud fight depends on the ability to effectively implement the provisions in the field, if it will be doubled by an inter- institutional cooperation, by the specialization and continuous improvement of the staff involved, the solutions to be taken should have a significant impact both in terms of preventing and removing the consequences of illegal actions. In order to combat fraud and irregularities affecting the financial interests of the Community, at the level of the Government of Romania, the National Anti-Fraud Strategy for the protection of the financial interests of the European Union was adopted.104 103 Ion Ristea , Criminal Law. The special part. Vol. I , Universul Juridic Publishing House, 2014, p.142 104 Florin Răzvan Radu , International and European judicial cooperation in criminal matters , Ed. CH Beck, Bucharest, 2008, p.136 55 provisions of financing memoranda, memoranda of understanding, financing agreements regarding community funds and related co-financing, as well as with the provisions of contracts concluded on the basis of these memoranda/agreements, which through an ineligible expenditure prejudices the general budget of the European Communities or the budgets administered by them or on their behalf and/or the budgets from which the related co-financing comes.107 This definition is consistent with the definition of irregularity, regulated at the level of the European Union by Regulation of the Council of the European Union no. 2988/95 on the protection of the financial interests of the European Community).108 Criminal law provisions being, in the opinion of the community institutions, the object of Title VI of the TEU until the appearance of this decision, the community instrument used for the implementation of such provisions can only be the one provided there, respectively the framework decision. Thus, if the community institutions wanted to regulate a certain field of activity related to a community policy, they had to adopt two legislative instruments. On the one hand, it had to adopt a regulation or a directive based on the first pillar (TCE), which regulates the respective community policy, establishing the general rules and obligations of the parties. On the other hand, it had to adopt a framework decision, based on the third pillar (Title VI TUE), which would establish which milk should be criminalized as crimes and the specific sanctions. As an example, Council Directive no. 91/308/ EECof June 10, 1991 regarding the prevention of the use of the financial system for the purpose of money laundering, JOCE no. L 166 of June 28, 1991, page 77 and Framework Decision no. 2001/500/JAI of June 26, 2001 on money laundering, identification, seizure and confiscation of instruments or proceeds of crime, JOCE no. L 182 of July 5, 2001, page 1; European Parliament and Council Directive no. 2005/35/EC of September 7. 107 Mihai Adrian Hotca, Maxim Dobrinoiu , Offenses provided for in special laws. Comments and explanations. August 2008 , CH Beck Publishing House, 2008, p.132 10820. Monica Vieru, Criminal Law - Special Part, "Andrei Şaguna" University Constanţa, 2010, p.133 56 CHAPTER IV. JURISPRUDENCE 4.1. The use of false documents resulting in unjustly obtaining funds from the general budget of the European Communities. False in documents under private signature Competition Law no. 78/2000, art. 181 para. (1) and (3), art. 182 para. (1) and (2) Penal Code, art. 290, art. 292 The act of presenting and using false documents, resulting in the unjustified obtaining of sums from the general budget of the European Communities, is sanctioned by the provisions of art. 181 of Law no. 78/2000. The fact of falsifying the documentation presented for this purpose constitutes the crime of forgery in documents under private signature, provided by art. 290 Penal Code, an act that is not included in the crime provided by art. 181 of Law no. 78/2000. The existence of the latter crime is not conditioned by the use of the funds obtained in one's own interest, this fact being sanctioned as an independent crime. It is sufficient, thus, to establish the use of false documentation with the consequence of obtaining sums of money from European Union funds, regardless of the fact that the project was completed, and the sums were used according to the declared purpose. Jud. Sect. 2 Bucharest, s. pen., cent. no. 161 of March 7, 2008, definitive by Dec. no. 1673 of October 21, 2010 of CA Bucharest, s. llth pen., unpublished By criminal sentence no. 161/07.03.2008, pronounced by the District Court of Bucharest 2, the following were ordered: 57 Pursuant to art. 181 para. (1) and (3) from Law no. 78/2000, with the application of art. 41 para. (2), art. 64 para. (1) lit. a) thesis II, letter b) and c), art. 65 para. (2), art. 74 para. (1) lit. a) and b) and art. 76 para. (1) lit. a) C. pen., the defendant D.Ï was convicted. to a main penalty of 4 years in prison. Pursuant to art. 181 para. (1) and (2) from Law no. 78/2000, with the application of art. 41 para. (2), art. 64 para. (1) lit. a) thesis II, letter b) and c), external, false accounting balance sheet of the promoter, false individual promoter-trainee internship contracts, false individual records of trainees, false documents regarding the way of organization and selection of project beneficiaries, AGM decisions, final reports, diplomas, certified passports), following the execution of the financing contracts related to the first projects, the defendant improperly obtained the sum of 51,088 euros. From the analysis of the extensive evidentiary material administered in the case during the criminal trial, the trial court held that all documents related to the three phases of the development of projects RO/2003/PL/91152/1 RO/2003/PL/91153/M and RO/ 2003/PL/91154/TD contain untrue statements, the financing obtained under the contracts related to these contracts being based on a false and illegal cause on the part of the promoter and being diverted from the purpose intended by the representatives of the injured party when concluding the contracts. Summarizing the analysis of the evidentiary material administered during the criminal trial, the trial court held that the prosecution fully did, through the evidence presented, under the conditions of art. 66 para. (1) C. proc. Pen., proof of the factual situation presented in the indictment. Although the defendants constantly denied their guilt, both during the criminal investigation and during the judicial investigation, they did not prove, according to art. 66 para. (2) C. proc. Pen., the lack of foundation of the evidence of the accusation, their defenses not being able to be retained because, not being confirmed by other conclusive means of proof, they cannot serve to find out the truth (art. 69 C. proc. Pen.). Thus, as far as the defendant DI is concerned, he, without disputing the obviously false nature of the documentation used in the six projects, tried throughout the criminal process to induce the idea that the full responsibility for the committed acts belonged to the named OI and IS, both die before the start of the investigation. In support of this defense, even before the initiation of the criminal investigation, since ANPCDEFP representatives had found irregularities in the financial documents from 60 20 Penal Code, related to art. 181 para. (1) from Law no. 78/2000, with the application of art. 41 para. (2) Penal Code, of art. 74 para. (1) lit. a) C. pen. [with the removal of the mitigating judicial circumstance provided for by art. 74 para. (1) lit. b) C. pen. in the case of this crime] and art. 76 para. (1) lit. d) C. pen., to 1 (one) year in prison. Pursuant to art. 33 lit. a) and art. 34 lit. b) C. pen., the (main) penalties established previously were merged with the (main) penalty of 2 months imprisonment, applied to the defendant for committing the offense provided for and punished by art. 290 para. (1) Penal Code, with the application of art. 41 para. (2) Penal Code, of art. 74 para. (1) lit. a) and b) C. pen. and of art. 76 para. (1) lit. e) (sentence I) Penal Code, as well as with the (main) penalty of 2 months imprisonment, applied to the defendant for committing the offense provided for and punished by art. 25 Penal Code, related to art. 292 Penal Code, with the application of art. 41 para. (2) Penal Code, of art. 74 para. (1) lit. a) and b) C. pen. and of art. 76 para. (1) lit. e) (thesis I) C. pen., following that the defendant will finally execute the main (resulting) heaviest punishment, that of 6 (six) years in prison. By criminal decision no. 1673 of 21.10.2010 of the Bucharest Court of Appeal, Criminal Section II, the appeals of the defendants were admitted, formulated including under the aspect of judicial individualization of punishments, the decision of the court of appeal was annulled and the sentence of the first instance was upheld. The court of appeal mainly considered within the criteria established by art. 72 C. pen. the fact that the damage caused, in the amount of 51,088 euros (the equivalent of 2,083,675,168 ROLat the rates communicated by the BNR on the days when the sums of money were transferred to the promoters' accounts) from the general budget of the European Community was fully covered, and this circumstance constitutes a particular mitigating circumstance - in the context of relations with the European institutions willing to collaborate with those in Romania for various programs, so that this aspect prevails over all the others retained by the courts. 4.2. The use of false documents resulting in unjustly obtaining funds from the general budget of the European Communities. Dangerous crime Law no. 78/2000, art. 181 para. (1), art. 184 Criminal Code, art. 20, art. 31 para. (2), art. 288 The existence of the offense provided for by art. 181 of Law no. 78/2000 is not conditioned by the change of destination of European funds obtained unjustly. 61 If the funds are obtained illegally, the constituent elements of the crime are met, even if the project is completed. Jud. Sect. 1 Bucharest, s. pen., cent. no. 529 of May 18, 2010, definitive by Dec. no. 623 of March 17, 2011 of the CA Bucharest, s. a ll-a pen., unpublished. By criminal sentence no. 529/18.05.2010 of the 1st District Court of Bucharest decided, based on art. 31 para. (2) Penal Code, related to art. 20 Penal Code, related to art. 181 para. (1), with reference to art. 184 of Law no. 78/2000, amended and supplemented by Law no. 161/2003, sentencing the defendant RCM to 2 years in prison. Based on art. 288 para. (1) C. pen. sentenced the defendant RCM to 3 months in prison. Based on art. 33 lit. a) and art. 34 lit. b) C. pen., the penalties applied were merged, the defendant RCM to serve the heaviest penalty, namely that of 2 years in prison. Based on art. 861 Penal Code, it is ordered to suspend the execution of the sentence under the supervision of the Probation Service attached to the Bucharest Court, for a trial period of 4 years, established under the conditions of art. 862 C. pen. pursuant to art. 14, related to ait. 346 C. proc. Pen., it was noted that the injured party, MFP, the PHARE Payments and Contracting Office, was not a civil party in the case. Pursuant to art. 348 C. proc. Pen., the falsified documents were annulled. In order to pronounce this solution, the trial court actually considered the following: In August 2008, RCM, as a representative of SC MO SRL, by forging documents certifying eligibility, in relation to the content of the bid submitted during the organization of the tender for the award of the project "Increasing Romania's institutional capacity for the protection of intellectual property rights and industrial, sub-component 9 - Increasing public awareness", project financed by the PHARE Program of the European Union, determined and facilitated the winning of the tender on the basis of which, on 27.10.2008, the service contract no. 493828, in the amount of 118,602.79 euros, between the Ministry of Economy and Finance - contracting authority, the Public Ministry - implementing authority/beneficiary and SC MO SRL - service provider. Not knowing the criminal activity of the accused, the administrator of SC MO SRL AMS (who delegated the duties of drawing up the documentation and participating in the auction to other people within the company), as well as BRF (representation of the company at the conclusion of the contract), acted without guilt for the conclusion of the contract mentioned and obtaining the European funds provided for in it. 62 The defendant RCM was an employee of SC MO SRL, through the contract concluded on 07.01.2008, for an indefinite period, just like Ş.MI and BRF, the latter being appointed executive director of the company. As it emerged from the statements of the witnesses heard in the case, corroborated with the defendant's statement, AMS, general manager of SC MO SRL, expressed his intention for the commercial company to participate in the auction to win the PHARE project, which is why he convened at the point office in Bucharest of the company on RCM, BRF and Ş.MI The defendant RCM was mandated to obtain all the necessary documents for participating in the auction. In this sense, in addition to the verbal mandate received in the presence of his aforementioned colleagues, delegation no. 89/14.08.2008 by which the accused was empowered by the general director to carry out all the necessary formalities to obtain the documents. The witness BRF was mandated to participate as a representative of SC MO SRL at the conclusion of the respective contract, the power of attorney dated 20.10.2008 having been issued in this regard. It follows from the documents in the file that in order to be eligible for the award of the contract, any interested commercial company had to fulfill a series of cumulative conditions, imposed by the internal legislation on the subject and by the framework agreement for the implementation of the aforementioned PHARE Program, the fulfillment of these conditions depending on the exclusivity mode of SC MO SRL, was counterfeited by the defendant by entering, with the help of the computer, the data mentioned above, which gave the document validity, on a similar document valid in a previous period of time. Also by updating the issue date, by scanning and modifying a similar document from the company's archive, the accused also forged the ascertaining certificate no. 29585/20.08.2008 issued by the Prahova Trade Registry Office (ORC), proceeding in the same way with the Fiscal Certificate regarding taxes and fees no. 892320/19.08.2008, issued by the local council of Ploiesti municipality. The defendant RCM compiled the tender participation file by inserting the forged documents and presented it to the general manager of SC MO SRL for countersignature, hiding from him both the omission of bank guarantees (falsely attested by forged certificates) and the forgery of the other documents. AS, misled as to the veracity of those documents, signed the mandatory self- responsibility declarations, entitled "form 5" and "form 6", in which he basically affirmed 65 and settlements on the occasion of submitting the final report, it is necessary to remove the accounting expertise from the entire evidentiary material. The conclusion is all the more necessary as it is based on a formal analysis of the accounting documents produced by the defendants and analyzes only the formal conditions of these documents, not their substance or reality. CA Bucharest, s. I. pen., dec. no. 3144/98/2007 of March 9, 2010, unpublished By criminal decision no. 3144/98/2007 of 03/09/2010 of the Bucharest Court of Appeal, Criminal Section I, the following were noted: By criminal sentence no. 140 of 26.01.2007 pronounced by the Slobozia Court, based on art. 3021 para. (1) Penal Code, with the application of art. 41 para. (2) and art. 74 para. (1) lit. a) and c) and art. 76 lit. e), related to art. 80 Criminal Code, the defendant NN was sentenced to 1 year in prison for committing the crime of embezzlement. Based on art. 181 para. (1) from Law no. 78/2000, with the application of art. 74 para. (1) lit. a) and c) and art. 76 lit. b) C. pen., the same defendant was sentenced to a 2-year prison sentence for committing the crime against the financial interests of the European Community. Based on art. 33 lit. a) and art. 34 lit. b) C. pen., the two penalties above were merged into the heaviest penalty of 2 years imprisonment. Based on art. 81 Penal Code, the execution of the sentence was conditionally suspended for a trial period of 4 years, established under the conditions of art. 82 C. pen. Based on art. 11 point 2 letter b) C. pen., related to art. 10 lit. i1) C. pen. and art. 10 of Law no. 241/2005, the criminal trial regarding the defendant GDL for committing the crime of tax evasion provided for by art. 9 para. (1) lit. c) from Law no. 241/2005, with the application of art. 41 para. (2) and art. 13 C. pen. based on art. 10 of Law no. 241/2005, related to art. 91 lit. c) C. pen., an administrative fine of 1,000 RON was applied to the defendant GDL, which is registered in the criminal record. Based on art. 43 of Law no. 82/1991, report In art. 289 Penal Code, with the application of art. 41 para. (2), the defendant GDL was sentenced to 1 year in prison for committing the crime of intellectual forgery through inaccurate accounting records. In art. 81 Penal Code, the execution of the sentence was conditionally suspended pending a 3-year probationary period established under the terms of art. 82 C. pen. based on art. 359 C. proc. Pen., the defendant's attention was drawn to the provision of art. 83 Penal Code, the non- compliance of which results in the revocation being suspended based on art. 445 C. proc. Pen., the annulment of the falsified documents was ordered. 66 The insuring measure of seizure ordered by the Ordinance of 27.06.2006 of the DNA - Territorial Service Bucharest - Territorial Bureau S. was maintained on the movable and immovable assets of the defendant NN The civil action filed by the civil party - the Romanian State through ANAF, through DGFPI, was rejected as left without object. The civil action filed by the civil party, the Ministry of European Integration, was admitted. Based on art. 14 and art. 346 C. proc. Pen. and art. 998 and art. 1003 Civil Code, the defendant NN, jointly with the civilly responsible party SC CID SRL, was ordered to pay to the civil party the Ministry of European Integration the amount of 30,372.6 euros, equivalent in lei, plus BNR interest for the amount of 28,641, 32 euros, equivalent in lei, from 24.02.2003 and for the amount of 1,731.28 euros, equivalent in lei, from 07.05.2004. In order to pronounce like this, the first court considered the following: The defendant NN, based on the same criminal resolution, as the administrator of SC CID SRL S., the beneficiary of a non-refundable loan from PHARE funds within the "Architecture for CI Design" project, during the course of the project, changed the established destination four times through the project budget (the sums of 25,000 euros and 3641.32 euros), without respecting the legal provisions, found in GEO no. 63/14.09.1999, amended and supplemented, regarding the management of the non- reimbursable funds allocated to Romania, as well as the related co-financing funds, OG no. 51/23.08.2001 for the ratification of the Financing Memorandum between the Government of Romania and the European Commission, regarding the PHARE 2000 National Program, approved by Law no. 617/2001, and caused the Ministry of European Integration a loss of 28,641.32 euros. The same defendant, as the administrator of SC CID SRL, by using and presenting unreal documents at the final report (the entries certifying the fulfillment of public procurement procedures, invoices and statements of works issued by SC DD SRL), requested and obtained the sum of 1731.28 euros as final payment from PHARE funds allocated to the project. The defendant GDL, on the basis of the same criminal resolution, as the administrator of SC DD SRL S., recorded in the accounting records of the administrator in question (technical, accounting expertise, corroborated with witness statements), the result was that SC DD SRL has effectively carried out the works undertaken in the contract, which are correctly highlighted in the accounting documents drawn up. It should be mentioned that in a first trial cycle, by criminal decision no. 70/A/of 18 May 2007 pronounced by the Ialomiţa Court, the appeals filed were admitted, the criminal 67 sentence 140 of 12.01.2007 was annulled and the retrial of the case was ordered by the same court, considering the fact that the merits of the case were judged in the absence of a parties that were not legally cited (respectively ANAF Bucharest, through DGFP Ialomiţa). Against this decision, the Prosecutor's Office under the High Court of Cassation and Justice filed an appeal, and the Bucharest Court of Appeal, the II Criminal Section and for cases involving minors and family, by criminal decision 1304 of 14.09.2007, admitted the appeal, quashed the appealed decision and sent the case for retrial to the Ialomiţa Court. At the Ialomiţa Court, the case was registered under no. 3144/98/2007 (old format no. 1620/15.10.2007). By criminal decision no. 162/A/27.11.2009, the Ialomiţa Court admitted the appeals filed by the Prosecutor's Office attached to the High Court of Cassation and Justice - DNA - Bucharest Territorial Service, S. Territorial Bureau, defendants NN and GDL against criminal sentence no. 140/12.01.2007, pronounced by the Slobozia Court, which it abolished in its entirety and, rejudging, based on art. 334 C. proc. Pen. ordered the change in the legal classification of the acts committed by the defendant GDL from the continued crimes of tax evasion, provided for by art. 9 para. (1) lit. c) from Law no. 241/2005, with the application of art. 41 para. (2) C. pen. and art. 13 C. pen. and false intellectual, provided by art. 43 of Law no. 82/1991, republished, related to art. 289 Penal Code, with the application of art. 41 para. (2) Penal Code, in the continued crime of tax evasion, provided for by art. 9 para. (1) lit. c) from Law no. 241/2005, with the application of art. 41 para. (2) C. pen. Based on art. 11 point 2 letter a), referred to art. 10 lit. d) C. proc. Pen., the defendant NN was acquitted for the continued crime of misappropriation of funds, provided for by art. 3021 para. (1) Penal Code, with the application of art. 41 para. (2) C. pen. based on art. 11 point 2 letter a), referred to art. 10 lit. d) C. proc. Pen., the defendant NN was acquitted for committing the crime against the financial interests of the European Community, provided for by art. 181 para. (1) from Law no. 78/2000. Based on art. 11 point 2 letter a), referred to art. 10 lit. d) C. proc. Pen., the defendant GDL was acquitted for the continued crime of tax evasion, provided for by art. 9 para. (1) lit. c) from Law no. 241/2005, with the application of art. 41 para. (2) C. pen. pursuant to art. 14 C. proc. Pen., related to art. 346 C. proc. Pen., the civil action filed by the Romanian State through ANAF was rejected, by 70 technical report, the financial report, the payment request and the purchase file have been approved. It should also be mentioned that through the payment request for the non- reimbursable external assistance contract, registered on 27.02.2003, the defendant requested the final payment in the amount of 4242.66 euros, attaching the final implementation report to this request. Proceeding in this way, the defendants were respected their right to defense and the right to a fair trial by respecting the principle of equality of arms promoted by the European Court of Human Rights. Thus, regarding this principle, the European Court of Human Rights states that "the requirement of equality of arms in the sense of a fair balance between the parties implies the obligation to offer each party a reasonable opportunity to present its case, including the evidence, under the conditions in which not to place it in a net disadvantage compared to its opponent". The obligation to ensure compliance with the conditions of a fair trial in each case rests with the national authorities (ECHR Judgment of 20.02.1996 in the case of Hobo Machad v. Portugal, ECHR Judgment of 16.02.2001 in the case of Rowe and David v. Great Britain, paragraph 60) . Moreover, the same Court ruled that the communication of the parts of the file "to the extent that it presupposes a fair process and in the adversarial lity" is mandatory. Also, respecting the right to a fair trial requires the right to have access to all the evidence collected by the prosecutor (ECDO Decision of 04.10.2007, in the case of Forum Maritim v. Romania). In applying this principle. The court considered that the administration of evidence with accounting and technical real estate expertise is required, given that a technical- scientific report was drawn up during the criminal investigation, and when the case was settled on the merits, the defendants requested in defense the administration of evidence with the two expertises. The objectives of these expertises were discussed by the parties, and the experts were summoned to court according to art. 120 para. (1) and (2) C. proc. Pen. After verifying the evidentiary material administered in the case during the criminal prosecution and judicial investigation, the accounting expert, through the prepared report, concludes that the non-reimbursable funds were used according to the special destination. 71 The expertise also clarifies whether SC DD SRL could subcontract part of the works that were the subject of contract 155/30.09.2002, the answer being affirmative. Also, regarding objective no. 3 - to establish whether the legal operations regarding the purchase by SC D. SRL of the area of 486 square meters of land were properly recorded in the accounting, on 10.12.2002, with the sale-purchase contract authenticated at the IG, the following goods were BNPpurchased : the area of 2,550 square meters, the construction of a car shed, built of reinforced concrete, reinforced concrete frames, reinforced concrete perimeter fences, brickwork, terrace-type roof, having a constructed area of 486 square meters and the building as well as the fact that the construction works assembly whose constructions are reflected in the report submitted to ADR-3 Sud Muntenia actually exists, except for those mentioned in the answer to point la, and respects the technical specifications in the documentation approved for financing. Objections were also made to this report by the Prosecutor's Office, the Ministry of Regional Development and Housing and the Ministry of Public Finances - General Directorate of Public Finances Ialomiţa. The technical expert answered these objections in detail. Taken together, these pieces of evidence led the Tribunal to the conclusion that the constitutive elements of the crimes charged against the two defendants are not met. According to art. 3021 Penal Code, the crime of misappropriation of funds is the change of the destination of funds or material resources, without complying with the legal provisions, if the act caused a disruption of the economic-financial activity or caused damage to a state body or institution or to another institution among those referred to in art. 145 C. pen. The material element of the crime of misappropriation of funds consists in the activity in which the criminal changes the destination of money or material resources, directing them towards other objectives than the one established on the occasion of their allocation from the budget. Moreover, the material element of the crime is only realized if the change in the destination of funds or material resources caused a disruption of the economic-financial activity of any of the institutions or units referred to in art. 145 C. pen. or it resulted in damage to them. In the case brought before the court, as shown in the decision, from the evidence administered in the case, it emerged that the contracting authority verified, censored and approved the documentation submitted by the defendant NN prior to the conclusion of the contract, as well as the technical-economic documentation drawn up during the realization 72 of the investment, fulfilling the conditions of substance and form to be considered valid, and the purpose pursued for granting the non-reimbursable funds was fully achieved, as established by the two expertises carried out in the case. Whenever the documentation was not complete or documents were submitted (invoices as ineligible expenses), they were deducted from the final amount allocated, the defendant NN requesting the amount of 4242.66 euros and approving the final payment within the limit the amount of 1731.28 lei. The South Muntenia ADR-3 expert for County I., in the person of the witness HZ, verified all these documents, as well as the factual situation on the ground, drawing up intermediate reports and the final report, without finding any deviations from the contractual norms. The accounting expertise concluded that the non-reimbursable funds were used according to the special destination. It was shown that none of the copies of the technical report signed on the back according to the MIE and ADR addresses of 06.10.2001 and 08.10.2003. These irregularities were removed by the defendant by submitting the construction authorization, the urban planning certificate, the individual employment contracts, he presenting explanations regarding the entries in the human resources budget chapter and the chenzinal advance list. The fact that all the deficiencies identified by the above-mentioned address were removed by the defendant is proven by the payment notice issued by ADRI Sud Muntenia, according to which the final payment was ordered according to the contract, respectively art. 4.2 of the special conditions, on behalf of the beneficiary, after the on-site visit, the technical report, the financial report, the payment request and the purchase file have been approved. It should also be mentioned that through the payment request for the non- reimbursable external assistance contract registered on 27.02.2003, the defendant requested the final payment in the amount of 4242.66 euros, attaching the final implementation report to this request. From this amount, the final payment was approved only for 1,731.28 euros, according to address no. 1,500 from 27.04.2004, issued by the General Directorate of Regional Development, deducting the invoices no. 5941963 of 27.11.2003 and no. 5232691 of 20.11.2003, as ineligible expenses. The goods purchased with these invoices do not represent raw materials according to the budget line to which they are included. 75 Law no. 78/2000, art. 182 para. (1) Law no. 161/2003 Penal Code, art. 41 para. (2), art. 143 para. (2), art. 144, art. 3021 C. proc. Pen., art. 344 The provisions of art. 182 para. (1) from Law no. 78/2000, introduced by Law no. 161/2003, entered into force on 21.04.2003, represents a special offense compared to the one regulated by the provisions of art. 3021 C. pen., to the extent that the embezzled amounts come from financing obtained from European Union funds. In light of the provisions of art. 143 para. (2) and art. 144 Penal Code, the criminal law applicable in the case of a succession of laws over time will be the one in force at the time of exhaustion of the crime, considering its unity. Under the conditions in which the factual situation, which consists in the embezzlement of two successive installments of a single financing, obtained on the basis of a single contract, justifies the conclusion that both material acts were committed on the basis of the same criminal resolution, it is necessary to change the legal classification of the crimes provided by art. 3021 C. pen. and art. 182 para. (1) from Law no. 78/2000, in real contest, in a single crime, respectively that provided by art. 182 para. (1) from Law no. 78/2000, with the application of art. 41 para. (2) C. pen. It cannot be argued that this procedure would lead to a retroactive application of the criminal law, since even before the amendment, the act was sanctioned by the provisions of art. 3021 Penal Code, and the punishment provided for such an act was the same. Jud. Sect. 4 Bucharest, s. pen., cent. no. 2062 of November 6, 2009, definitive by Dec. no. 390 of February 21, 2011 of the CA Bucharest, s. a ll-a pen., unpublished By criminal decision no. 390/21.02.2011 of the Bucharest Court of Appeal, Criminal Section II, pronounced in the appeal, the following were noted: By criminal sentence no. 2062 pronounced by the 4th District Court of Bucharest, the following were ordered: The requests of the defendant and the representative of the Public Ministry - DNA, to change the legal classification given to the facts in the indictment, were accepted. Based on art. 334 C. proc. Pen., the legal classification given to the facts by the indictment was changed, from the crimes of forgery in documents under private signature in continuous form, provided by art. 290 para. (1) Penal Code, with the application of art. 41 para. (2) Penal Code, misappropriation of funds, provided for by art. 3021 para. (1) C. pen. and the crime against the financial interests of the European Communities, provided by art. 182 76 para. (1) from Law no. 78/2000 for the prevention, discovery and sanctioning of acts of corruption, amended, all with the application of the provisions of art. 33 lit. a) C. pen., in: the crime of forgery in documents under private signature in continuous form, provided by art. 290 para. (1) Penal Code, with the application of art. 41 para. (2) C. pen. and the crime against the financial interests of the European Communities, provided by art. 182 para. (1) from Law no. 78/2000 for the prevention, discovery and sanctioning of acts of corruption, amended, with the application of art. 41 para. (2) C. pen. (changing, without complying with the legal provisions, the destination of the funds obtained from the general budget of the European Communities or from the budgets administered by them or on their behalf, in continuous form), all with the application of the provisions of art. 33 lit. a) C. pen. Based on art. 11 pet. 2 lit. b), related to art. 10 lit. g) C. proc. Pen., in conjunction with art. 122 para. (1) lit. d) and art. 124 Penal Code, the criminal trial started against the defendant PM for the crime of forgery in documents under private signature in continued form, provided by art. 290 para. (1) Penal Code, with the application of art. 41 para. (2) Penal Code, as a result of the intervention of the special prescription of criminal liability. Pursuant to art. 182 para. (1) from Law no. 78/2000 for the prevention, discovery and sanctioning of acts of corruption, amended, with the application of art, 41 par. (2) C. pen., the defendant PM was sentenced to a sentence of 3 (three) years in prison for committing the crime against the financial interests of the European Communities (changing, without complying with the legal provisions, the destination of the funds obtained from the general budget of the European Communities or from the budgets administered by them or on their behalf), in continuous form. Based on art. 81 C. pen. the conditional suspension of the execution of the sentence was ordered for the duration of a trial period of 5 (five) years, established according to the provisions of art. 82 C. pen. Based on art. 14, related to art. 346 para. (1) C. proc. Pen., with reference to art. 998 and art. 1000 para. (3) Civil Code, the civil action filed by the injured party constituted as a civil party ANPCDEFP - MECL, against the defendant and the civilly responsible party SC P&I I. SRL, through judicial liquidator SC GI SRL, was admitted, in the sense that it compels the defendant , jointly with the civilly responsible party SC P&I I. SRL, This solution is confirmed by the systematic interpretation of art. 143 para. (2) and art. 144 C. pen. and it is consistent with the point of view expressed in the doctrine, 77 according to which the criminal law applicable in the case of a succession of laws over time will be the one in force at the time of exhaustion of the crime, considering its unity. The trial court also noted that the criminalization of the special norm is the same as that of the general norm, with the only difference that the one of the special norm refers to a restricted category of funds - those obtained from the general budget of the European Communities. As such, the acts of the defendant who, in the period 11.06.2003 - 11.09.2003, repeatedly changed the legal destination of the sum of 8,040 euros from the general budget of the European Communities meet the constitutive elements of the offense provided for by art. 182 para. (1) from Law no. 78/2000. Since in the case it is a single subsidy, a single financing contract, even if the amounts were granted in successive installments, we cannot talk about two crimes in competition, considering that the texts that regulate them are in force and one of they represent a general norm in relation to the other, which represents a special norm. Therefore, applying the specialia generalibus derogant principle, in the case only the offense provided for by art. 182 para. (1) from Law no. 78/2000 for the prevention, discovery and sanctioning of acts of corruption, amended, with the application of art. 41 para. (2) Penal Code, for the entire criminal activity. Although it would apparently reach a retroactivity of the criminal law, it is also shown in the considerations of the solution adopted by the trial court, as the legal framework would be reported at the time of the execution of the last acts of execution and the exhaustion, but would also include facts prior to the entry into force of the rule, in reality it is not about retroactivity, because even before the amendment of 21.04.2003 to Law no. 78/2000, the law sanctioned such an activity, and the punishment provided for such an act was the same. For these reasons, the court admitted the requests of the defendant and the representative of the Public Ministry - DNA, to change the legal classification given to the facts in the indictment. Based on art. 334 C. proc. Pen., changed the legal classification given to the facts by the indictment, from the crimes of forgery in documents under private signature in continuous form, provided by art. 290 para. (1) Penal Code, with the application of art. 41 para. (2) Penal Code, misappropriation of funds, provided for by art. 3021 para. (1) C. pen. and the crime against interests 80 the town hall, signed by the authorized persons, containing the summary of the lease contracts, the surfaces, the lease period". This centralizing table represents the materialization of the actual situation resulting from the lease contracts that can be found on file at the town hall headquarters and registered in its special register. Conclusion of contracts, land areas and contract number (registration number from SC V. SRL). Thus, the contracts presented by the defendant had in their entirety that the date of conclusion was 01.09.2004, the table drawn up by the defendant recording the date of 01.09.2005 for a number of 10 lessees, the registration number of the contracts in the table was different from the registration number in the contracts presented by the defendant and for a number of six contracts, the leased area in the table was different (insignificantly) from the area in the lease contracts located at the headquarters of SC V. SRL and presented by the defendant (the copy of each contract remaining on the defendant after registration at the town hall) . The two experts were presented with a copy of each contract, with the 10-year lease period written on the first page, respectively 2005-2015, in holographic writing, so that the column in the centralizing table with the lease period proved to be truthful. After the date of 11.07.2006, the defendant IG submitted to APDRP, together with a set of documents that had been requested to complete the documentation attached to the financing application , and a new "Nominal table with tenants from the commune MB, tenant SC V. SRL" , table drawn up on the computer by the defendant IG Unlike the initial table, it had registration number 1180 from 11.07.2006, contained 94 positions (lessees), and the date of conclusion of the contracts was mentioned as 01.09.2004, according to findings made by APDRPG experts during the field visit. The table bears the signatures of the deputy mayor DFG under the heading "mayor" and the agricultural agent PD under the heading "secretary", as well as the stamp of the City Hall of MB, the stamp of SC V. SRL and the signature of the defendant IG Regarding the heading "lease period", like the initial table, the table registered under no. 1180/11.07.2006 mentions the period 2005-2015. On 25.08.2006, between APDRP and SC V. SRL, represented by the defendant IG, the framework contract of 25.08.2006 was concluded, for the granting of non-refundable financial aid under the conditions of the Special Pre-Accession Program for Agriculture and Rural Development SAPARD - Romania . 81 The defendant IG concluded on 01.09.2004 lease contracts with 138 owners of agricultural land within the M B commune. Each contract was drawn up in three copies, using indigo, the original (the first copy) for SC V. SRL, and one copy copied in indigo for the owner and the MB local council before handing a copy of the lease contract to the owners, the defendant he went to the headquarters of the MB Local Council, where he requested the secretary The initial period was holographed with the mention "2005", and as the final period "2015", after which the new draft form of tab no. 1, as it resulted from the changes, then, using indigo, he completed the rubrication on each tab no. 1 of the lease contracts, taking the data from files no. 1 detached (registration numbers at the town hall, contract number, owner-lessee, leased area, location). As a result of these operations and by attaching files no. 1 - modified, on tab no. 2 of each contract, they presented the unrealistic situation according to which the lease period was 10 years, from 2005 to 2015, so that the eligibility criterion was met. Having on him the modified copies (both those belonging to the town hall and those belonging to SC V. SRL), the defendant IG went to the MB Town Hall, told the IMG secretary that he had made a change to the contracts and asked him to sign and re-stamp the lease contracts that already had the old registration numbers at the town hall from 2004 holographed by the defendant. The defendant IG asked the IMG secretary to apply the stamp and sign "quickly" the set of contracts that was to be taken by him, the secretary complied, the other set of contracts, intended for archiving at the town hall, to be stamped and signed later. The new contracts constituted the materialization of the initial centralizing table, in which the contract conclusion date was 01.09.2005, and the lease period was 2005-2015. As a result of the findings of the on-site verification, the defendant drew up a new table with the same lease period, 2005-2015, and at the next on-site verification, the IG presented the two inspectors with the amended contracts under the "lease period" heading, so that the centralizing table, reflecting this situation (the 10-year lease period), created the belief that the eligibility criterion was met. It was also noted that if the contracting authority (APDRP) had known the real situation of the validity period of the lease contracts, i.e. 5 years, it would not have concluded the financing contract, SC V. SRL would have become ineligible and therefore would not to have obtained financing from the European Communities funds. 82 In law, it was assessed that the act of the defendant IG to falsify lease contracts by inserting a lease period other than the real one, to draw up the centralizing table with an unreal lease period, using and presenting these documents to the contracting authority, activity criminal act that resulted in the unjust obtaining of SAPARD funds from the general budget of the European Communities, in the amount of 50,420.08 euros, constitutes the offense provided for by art. 181 para. (1) from Law no. 78/2000. For the financial networks of the European Communities, the damage - the negative result suffered by the civil party as a result of the violation of the patrimonial rights protected by the criminal law, certain and not yet repaired, consisting of the full consideration of the non-refundable financing received unjustly, the direct causal link between the illegal act and the damage product, the guilt existing in the form of direct intention. The first court, based on these legal provisions, admitted the request made by the civil party - the Payments Agency for Rural Development and Fishing within the Ministry of Agriculture, Forestry and Rural Development, for incorporation as a civil party with the amount of 231,671.9 lei, representing the counter value the full amount of the non- refundable financing settled to the beneficiary SC V. SRL, respectively the equivalent of the amount of 50,420.08 euros on the date of establishment of the civil party, to which are added late increases calculated in accordance with the provisions of art. 17 of the framework contract concluded between the civil party and the civilly responsible party. With regard to the claims of the civilly responsible party, as well as of the defendant, through defenders, formulated on the civil side of the case, according to which the financing contract is still in force, not having been denounced by the civil party, and the civilly responsible party - SC V. SRL - has in the course of the credit agreement obtained for 50% of the amount financed as own contribution, the restitution of the allocated financing cannot be ordered under these conditions, the first instance assessed, on the one hand, that in the presence of criminal proceedings there can be no question of the necessity the denunciation of the financing contract by the civil party, to the extent that the criminal court found that the financing was obtained unjustly in consideration of the falsified and inaccurate documents submitted by the defendant as administrator of the civilly responsible party to the Agency in order to obtain the financing, the criminal court , in consideration of the imperative provisions provided in art. 14, art. 348 and art. 455 C. proc. Pen., being obliged to pronounce and to order the restoration of the parties to the situation prior to the commission of the crime, by the partial or total abolition of the 85 ConCluSIonS Frequent cases of fraud were also found regarding access to structural funds, also known as "cohesion funds", which consist of funds paid to pre-accession countries and poorer regions. Approximately 308 billion euros were spent, in the period 2007-2013, to reduce the discrepancy between the poorer and richer regions of the EU. These structural funds are recognized as a target of widespread fraud and corruption, being accessed by groups of entrepreneurs, some of them integrated into mafia- type criminal structures. Significant in this sense is the finding made by the Court of Auditors of the European Union which states that 69% of the payments made for a sample of structural funds projects contained "major errors". The term used is elegant, because, in reality, frauds are hidden behind the "major errors". in the case of the management of these categories of funds, the frauds take on the most ingenious, but also primitive forms (in some projects, the method of overloading the estimates of works, labor costs, etc. is used). The champions of the European Union in the matter of embezzlement of structural funds in recent years are Greece and Italy. According to the Report of the Court of Accounts for the year 2006, nine clothing manufacturers in Greece received the amount of 2.9 million euros to help them create jobs. The method was simple: all existing employees in the respective companies were fired, after which they were rehired in a new company, with a different name. 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