tion to $ 12 para 1 of the law on the implementation of the common market and directly paid subsi-
dies.®
Finally, $ 261 para 1 sentence 2 number 4 lit. b Criminal Code stipulates that misdemeanours accord-
ing to $ 370 Fiscal Code (Tax evasion, Steuerhinterziehung)? are predicate offences to ML, if commit-
ted on a commercial basis or by a member of a gang whose purpose is the continued commission of
such offences. This is an important qualification. Although there is no definition of the term gang in
the Criminal Code, the meaning of the term is the same as in most countries, i.e. a group of a mini-
mum of 3 persons, based on a decision by the Federal Court of Justice (Bundesgerichtshof).® Point 2
of the interpretive note to FATF recommendation 3 seems to be implemented.
The maximum sentences are 5 years imprisonment according to $ 370 Fiscal Code, and 10 years im-
prisonment according to $$ 373 and 374 para 2 Fiscal Code. The maximum sentences always being of
more than one year, it appears that the definition according to Art. 3 point (4) (f) of the 4" AMLD
seems to be met.
$ 263 para 3 Criminal Code sanctions any attempt.
When looking at the German criminal law, the situation appears to be different from the one in Austria,
since $ 370 para 7 Fiscal Code clearly states that “irrespective of the lex loci delicti, the provisions of
subsections (1) to (6) above shall also apply to acts committed outside the territory of application of
this Code”. This means that any qualified tax evasion committed outside of Germany can be a predi-
cate offence to ML in Germany. When asking whether the proceeds of such a predicate offence can be
the object of ML in Germany, § 261 para 8 Criminal Code gives a clear answer: “Objects which are
proceeds from an offence listed in subsection (1) above committed abroad shall be equivalent to the
objects indicated in subsections (1), (2) and (5) above if the offence is also punishable at the place of
its commission”, hence yes. This applies without regarding whether the foreign predicate offence is
past the statute of limitations, whether the foreign threat of punishment is equivalent to the German
% Gesetz zur Durchführung der gemeinsamen Marktorganisation und der Direktzahlungen
(Marktorganisationsgesetz, MOG, no English translation available).
* To be found in Annex C below, both in German and in English.
© The decision by the Federal Court of Justice (Beschluss des Bundesgerichtshofs, GSSt 1/00, NIW 2001,
2266ff.) is available in German from http://www.hrr-strafrecht.de/hrr/1/00/gst-1-00.php3, accessed on April 3,
2016.
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