If the Ministry of Finance lost its monopoly in terms of prosecuting tax evaders and fraudsters, the justice does not have the free hand to handle all cases.
Chance of the calendar: the trial for fraud against the Swiss bank UBS opened in Paris this week, when the bill against tax fraud was finally adopted Wednesday, October 10 by the Parliament. It includes a development of the "Bercy lock", the privilege of the Ministry of Finance, which may choose whether or not to pursue a taxpayer fraud. The government was quick to publicize this "historic" event:
For years, successive governments have been talking about putting an end to Bercy's lock. No one has ever done it, … https://t.co/kQf6T6sCLO- CCastaner (@Christophe Castaner)
🔓History: the lock of Bercy, it's finished! The Assembly unanimously adopts art. which puts an end to this old system … https://t.co/1EnZYtK6wY- GDarmanin (@ Gerald DARMANIN)
However, at the same time, some observers, such as the Judicial Union (left-wing), claimed that they were not, and that the "Bercy lock" was not removed:
The lock of Bercy is not removed, it is just arranged.
The arbitrariness is framed by criteria, it is always … https://t.co/iUpnfOxJgk- SMagistrature (@SMagistrature)
What is it? Who is right about the government or the union magistrates? The answer in three points.
Why the "lock Bercy" has not really disappeared
1. No transmission below 100,000 euros
The text puts an end to the monopoly prosecutions held by the tax authorities for the biggest fraud. An automatic transmission mechanism at the business floor replaces it, with significant administrative penalties. The amount of fraud triggering this transmission is fixed at 100,000 euros. For the transmission of cases concerning persons subject to a declaration to the High Authority for the Transparency of Public Life (HATVP), such as ministers for example, the threshold is less than half, or 50,000 euros.
This distinction between big and small fraud was one of the arguments of the Minister of Public Accounts, Gérald Darmanin, to defend his vision of the "lock Bercy". According to him, "the biggest complaints, the most media, are transmitted to justice", while the tax authorities retain the monopoly on the "least important cases, generally less than 100,000 euros", in which the fraudsters must repay the escaped sums and pay a fine, but avoid the trial.
A biased defense insofar as only 20% of fraud cases involving amounts higher than 100,000 euros (874 out of 4,423) had been proposed by the tax authorities to the Commission des Offenses Fiscales (CIF) in 2017, in charge of accept or refuse the transmission of cases to justice. Admittedly, the transmission will now be automatic but it is still necessary that the justice recruits specialists … which was enjoyed by some players in the sector.
End of #VerrouDeBercy #pjlfraude
➡️ Necessary hiring of ex tax advisers and ex-tax lawyers at #PNF via the … https://t.co/K7DtmMQ5ap- boyardc (@Boyard)
2. No joint review of files
"It's a real step forward, but not quite a complete lifting of the lock," laments Manon Aubry, the association Oxfam France, regretting the possibility of self-referral of the prosecutor's office (which was part of the recommendations the fact-finding mission of MP Emilie Cariou), as well as the absence of a real joint examination of the files by the tax authorities and the public prosecutor's office.
In practice, even with the lifting of tax secrecy, the courts will have to send a request to the administration of Bercy if it wishes to open a prosecution on a crime of fraud correlative to another offense.
What, like Oxfam, criticizes also the Union of the Judiciary: "The principle of the lock remains: the justice will remain blocked for the frauds which it discovers itself. "A problem of vassalization somehow judges to tax inspectors … but also to other influences, such as law firms and consulting companies that accompany possible negotiations with the tax on behalf of their clients.
During the hearings of the fact-finding mission in February, the Institute of Tax Consultants had expressed its clear opposition to the removal of the lock Bercy, arguing the incompetence of judges in tax matters, but had wanted to sit lawyers tax specialists on the Commission des infractions fiscal.
3. Possible arrangements for businesses
Another novelty of this law: the extension to tax evasion of the public interest court agreement (CJIP), a measure allowing a company to pay a fine to avoid prosecution, without acknowledgment of guilt. CJIP was introduced in the 2016 Sapin 2 law, but for corruption.
This provision, believes the Judicial Union, allows fraudulent companies to "buy their innocence" and reintroduced at the judicial stage a logic of "arrangements". A paradox at the time when the loosening of the lock of Bercy was to bring a signal of transparency: "On the one hand, they want to return the tax fraud in common law by relaxing the lock and, on the other, they set up a a new form of derogatory justice without acknowledgment of guilt for tax evaders, "said Manon Aubry.
There remains the issue of efficiency: in November 2017, HSBC, indicted for money laundering aggravated for tax evasion, had avoided referral by signing a CJIP. At the time, the prosecutor at the head of the National Financial Office, Eliane Houlette, welcomed: "This procedure allows us to quickly obtain what I would never get at the hearing of a criminal court. "
To avoid a lawsuit, HSBC pays 300 million euros
A point of view that does not share all his colleagues: "Besides the penalty is unrelated to the seriousness of the facts, the lack of transparency of its terms does not guarantee a non-recidivism," deplore Eric Alt and William Bourdon, Sherpa Association, which protects and defends the victims of economic crimes.
HSBC case: "The transaction between the bank and the courts is neither effective nor dissuasive"