When customs searches
Customs plays a key role in the prosecution of Administrative offenses in the area of combating undeclared work and illegal employment as well as Criminal offenses under labor law If such offenses are suspected, the customs investigation offices, the main customs offices, and the Customs Criminal Investigation Office are responsible for investigation and prosecution.
Such Administrative offenses For example, violations of the Minimum Wage Act (MiLoG), obligations under the Residence Act (AufenthG), the Posted Workers Act (AEntG), and the Temporary Employment Act (AÜG) are present. Criminal offenses under labor law arise from the Criminal Code and various ancillary laws, such as the Tax Code (AO) and the Undeclared Employment Act (SchwarzArbG).
To combat undeclared work and illegal employment, the Act to Combat Undeclared Employment (SchwarzArbG) was issued. Undeclared work Anyone who fails to comply with the various social security reporting obligations and social security law requirements when providing services or work is liable for this. This is usually the case, for example, when employment relationships are not properly registered. The law regulates the duties and powers of the Financial Control of Undeclared Work (FKS) in the monitoring and prosecution of violations of undeclared work and illegal employment. It also standardizes fines and penal provisions, as well as reporting and information obligations for employers and employees.
Often there is also a suspicion of tax evasion according to §§ 370 ff. AO. The background can be, for example, the creation of so-called Fake invoices These are invoices that only simulate or conceal a business transaction, or at least deceive the buyer about the actual invoice amount.
Also at False self-employment Tax evasion can occur. False self-employment occurs when the client appears to be employing an independent contractor, but the actual nature of the contractual relationship objectively qualifies as employment subject to social security contributions, which in turn requires registration. Characteristics of false self-employment include, among other things, the client having clear authority to issue instructions, a reporting obligation to the client, and no own work equipment or workspace. Customs may initiate investigations even if the legal distinction between whether a contractor is self-employed or employed is problematic in the specific case. Determining false self-employment can result in heavy fines and demands for additional contributions. A professional ban is also possible.
The focus of the criminal investigations also includes the Criminal offense of withholding and embezzling wages pursuant to Section 266a of the German Criminal Code (StGB). This requires the employer to withhold social security contributions from the employee. Paragraph 2 of the provision also includes cases resulting from the provision of incorrect or incomplete information, or the breach of duty to withhold significant facts. This must be committed intentionally and is punishable by a prison sentence of up to five years or a fine. Section 266a, Paragraph 4 of the German Criminal Code (StGB) defines particularly serious cases as those in which the offense is committed on a large scale out of gross self-interest, false documents, possibly from third parties, are used, the offense is committed as a member of a band, or the assistance of a public official is exploited. Under these circumstances, the prison sentence ranges from six months to ten years. In addition, high additional demands for social security contributions, taxes, and interest often follow.
Penalties may be waived if, at the due date of the contribution or immediately thereafter, the amount of the withheld amount is communicated in writing and the reasons for the late payment are explained, stating that serious efforts have been made to ensure payment.
Another crime prosecuted by customs authorities is Social benefit fraud According to Section 263 of the German Criminal Code (StGB), social benefits are received illegally and in violation of the notification requirement. In these cases, a prison sentence of up to five years or a fine is provided for. This provision also stipulates a particularly serious case, including when the person acts commercially or as a member of a gang, when there is a significant loss of assets, or when another person is placed in financial hardship. Furthermore, cases such as abuse of a public official's position or the feigning of an insurance claim resulting from arson fall under the category of particularly serious offenses. These particularly serious cases are punishable by a prison sentence of six months to ten years.
Investigation procedure
In principle, investigations are led by the public prosecutor's office; the customs investigation offices and the main customs offices carry out the investigations. Within the scope of its audit responsibilities, the Financial Control of Undeclared Work (FKS)According to Section 14 of the SchwarzArbG (Black Work Act), customs officers work closely with the public prosecutor's office to specifically combat undeclared work and illegal employment. According to Section 152 of the Courts Constitution Act (GVG), customs officers act as investigators for the public prosecutor's office. They have the same powers as law enforcement agencies under the Code of Criminal Procedure and the Administrative Offenses Act. Specially trained officers from the Customs Criminal Investigation Office or the Mobile Control Units (MKG) are often deployed for this purpose.
The Act to Combat Undeclared Employment standardized in Section 14a SchwarzArbG Investigations to be conducted independently by customs. If the offense constitutes exclusively a crime under Section 266a of the German Criminal Code, the public prosecutor's office can delegate investigative powers to the customs authorities. In this respect, the rights and responsibilities of the public prosecutor's office are assumed.
In addition, the main customs offices act in cases of suspicion of Tax crime as a tax authority within the meaning of Section 386 Paragraph 1 of the German Fiscal Code (AO). In the case of purely tax crimes, they are authorized to conduct the investigation pursuant to Section 386 Paragraph 2 of the AO.
Searches
A relevant topic within the scope of customs responsibilities is Searches (§§ 102 ff. StPO), particularly in the construction industry. These are usually unannounced and require reasonable initial suspicion, as well as reasons why evidence might be found in the premises to be searched. For this purpose, a court order must be obtained pursuant to § 102 StPO, which orders a search by customs. Such a search warrant is only necessary in cases of imminent danger pursuant to § 105 StPO. Imminent danger usually exists when, without immediate action, there is a risk of evidence being lost or damage to a legally protected interest. This is an urgent authority that may only be invoked under strict conditions.
In order to inspect individuals and business documents, customs authorities are authorized, pursuant to Section 3 (1) and Section 4 (1) of the SchwarzArbG, to enter the business premises and properties of employers or self-employed persons during their working or business hours. According to Section 3 (1) of the SchwarzArbG, they may obtain information from individuals working there about their employment relationships or activities, regardless of whether these are real or apparent. They may also inspect documents belonging to these individuals if they are likely to provide information regarding their employment relationships or activities. Section 3 (3) of the SchwarzArbG also permits them to establish the personal details of employees and self-employed persons.
According to Section 4 (1) of the SchwarzArbG, customs authorities are also authorized to inspect payroll and registration records, books, and other business documents from which information about employment relationships or activities can be derived. According to Section 4 (2) of the SchwarzArbG, if there are indications of illegal work, they may also inspect documents relating to the conduct of a business or employment relationships. Any stored data, such as hard drives or data in the cloud, must be made accessible by the employer. Reviewing emails is only permitted in cases involving a particularly serious customs offense.
Such a search can also be carried out at the company's tax advisor's premises if it is suspected that the tax advisor is in possession of the documents specifically named in the search warrant.
Customs has extensive rights to prosecute criminal offenses against employers under labor law, including the right to enter their business premises and inspect relevant documents. With regard to employees, they may verify their identity, ask questions about their employment relationship, and inspect relevant documents.
In serious cases of suspicion, the main customs offices can also carry out house searches and confiscate objects on behalf of the public prosecutor's office.
Behavior during a house search
In the case of such a house search, it is essential Quiet preserve and cooperate, as resistance can be considered an aggravating factor in later court proceedings. In any case, it is advisable to Right to remain silent as an accused and not to provide any information. It may be useful to lawyer and have the officers wait with the search until the lawyer arrives. A lawyer experienced in employment law should be consulted. However, in case of doubt, they should at least Witnesses consult.
Let the search warrant and provide a copy, as this will state which rooms and objects are covered by the search. You can present these objects voluntarily, but you should object to their seizure. If necessary, they will then be confiscated. You should ensure that this is recorded precisely and obtain a copy. Accompany the officers during the search and check whether other objects are being sought than those named in the warrant. Be sure to record in writing any actions that deviate from the warrant and indicate errors or violations of the law. An intentional or grossly negligent violation of the terms of a search will render the obtained evidence unusable.