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LE DÉTOURNEMENT DE FONDS OU DE BIENS DES BUDGETS DE L’UNION EUROPÉENNE

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Author(s): Alexandru BOROI

Journal: Acta Universitatis Danubius : Juridica
ISSN 1844-8062

Volume: 3;
Issue: 1;
Start page: 105;
Date: 2007;
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Keywords: infringement of the law | the misappropriation of funds | fraud | incrimination

ABSTRACT
The embezzling of European communities funds is an important problem included in all criminal legislations from the European countries. This approach has been developed both trough the embezzling of the obtained funds, and also through the embezzling of a specific legal interest. As to the financial communitarian interests in the expenses domain changing the destination of the obtained funds means to use these previously legally obtained funds for other purposes than those originally meant. In Greece and Ireland this fraud of illegal redirection of funds is one of the potential expressions of fraudulent behavior that is provided in specific laws or specific provisions in the criminal code through frauds related to aids and incentives. In these countries changing the destination for funds that cannot be regarded as aids or incentives is not subjected to the provisions of the criminal law unless it has the elements of the breach of trust. In criminal codes from Austria, Denmark, Germany, Italy, Luxembourg, Spain and Sweden this fraudulent behavior related to the change of destination for funds is provided in specific stipulations different from those related to the fraud committed either by presenting false, inaccurate or incomplete documents or statements, or by avoiding to present information. The French criminal law stipulates this change of destination for funds as a crime related to the breach of trust. Unlike the other member states, none of the Great Britain jurisdictions stipulates a specific crime related to this fraud of changing the destination for funds. As for the communitarian financial interests related to incomes, frauds in the field of changing the destination for a legally obtained interest has to be followed by the unlawful assignment of some funds or the unlawful retaining of these funds. At the same time the resources of the European communities budgets are diminished. In Denmark, Greece, Spain, Ireland and Luxembourg changing the destination for a legally obtained interest is one of the potential types of fraudulent behavior provided in the criminal law in respect of the communitarian incomes.In Germany, Italy, France, Netherlands, Austria, Portugal and Finland tax fraud, regardless of the unique regulation in one or more specific laws, related to the customs regulations and the VAT, is defined in such a way as the fraudulent behavior is defined by any avoidance to indicate any change in the circumstances that can lead either to the illegally obtained funds, or to the unlawful retaining of these funds. This will result in the illegal decrease of the communitarian resources. In Romania the criminal provisions related to the embezzling of funds or interests are included in the art.18, par. 1,2, 3, Law no.78/2000. This fraud is directed at the social relations correlated with the financial discipline within the EU. Compliance with this discipline means to use the funds and the legally obtained interests in compliance with the legal provisions in force. This crime consists of affecting the money or the legally obtained interests by changing the destination for these funds. The crime of embezzling funds consists of changing the destination of the money, hence using it for other purposes than intended. Unlike the embezzlement of legally obtained interests, the crime of embezzling funds does not necessarily imply that the money is legally obtained.

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