Lawyer Monthly Magazine - March 2020 Edition

Is OLAF economically justified? What’s interesting is that there’s not an institution which keeps track of the expenditures that national administrations have incurred when a court has overturned their decisions based on OLAF’s reports or inspections. What I oftentimes wonder is whether the sole existence of this institution is economically justified. In all cases of my practice, the evidence presented by OLAF in support of their allegations of tax fraud has not been suitable or there hasn’t been any evidence to support their allegations at all. This may be connected to OLAF’s employees’ lack of understanding of national laws and the requirements of the procedural laws regarding the validity of evidence, however, considering that there are requirements for national administrative bodies to issue acts for the collection of public debt (customs, tax, etc.), they need to comply with national laws. Otherwise, the work of OLAF’s employees becomes meaningless due to the incompatibility of their presented documents with the procedural rules of a given member state, and sometimes, even with EU laws. The impact of not understanding EU case law In this article I have chosen to refrain from using specific examples from my practice, however, the one thing I’d like to bring to your attention is that OLAF still doesn’t understand the European Court of Justice’s case-law: that export declarations for goods are not documents which can prove a higher customs value. When a certain item is being imported into the EU, there needs to be an export declaration for goods, drawn up and signed by the exporter, whilst the importer needs to submit an import declaration. An export declaration is a private document which has no evidential significance. When conducting their investigations, however, OLAF’s employees continuously ask exporters for this piece of documentation, instead of documents which can prove higher customs value. In their essence, export declarations are not evidence of payments, but OLAF continuously misunderstands their sole purpose. My intention is not to argue that the EU does not need OLAF altogether, however, I believe that it could perhaps revise the institution’s functions and powers. Naturally, it’s the court that carries out the administration of justice in accordance with the rule of law – as mentioned earlier, OLAF is simply an administrative body whose actions need to be kept track of. It’s a common misconception that its reports should be trusted without questioning anything they claim, when in fact they should be subject to judicial review. LM Contat Law Office Varna, Bulgaria 12 Knyaz Alexander Batenberg str., fl. 4, office 10 Tel. +359 52 60 40 28 Mobile: +359888313115 Zhelyazkova_lawyer@abv.bg www.zhelyazkova-bg.com In all cases of my practice, the evidence presented by OLAF in suppor t of their allegations of tax fraud has not been suitable or there hasn’t been any evidence to suppor t their allegations at all. 71 MAR 2020 | WWW.LAWYER-MONTHLY.COM Expert Insight By Svetlomira Zhelyazkova, Attorney at Law