mafianeindanke e.V. welcomes the provisions set out in the draft bill for the Customs and Financial Justice Act. In principle, the draft is well-suited to strengthening the powers of the customs administration in combating money laundering—a key element of international financial crime—and to implementing specific measures to detect and combat organised crime, including transactions of unclear origin. Sections 52a–52n of the draft bill (ZollKrimBG(E)) take particular account of these objectives.
The draft bill now presented addresses the shortcomings present in previous drafts of the FKBG and VVBG. What was originally planned as a central federal authority is now being implemented in a decentralised manner through the restructuring of the customs administration, which is more resource-efficient and thus avoids a lengthy start-up phase for creating an operational structure, given the difficulties in recruiting qualified staff for this new authority. We consider this approach to be the correct one.
Here are our key points in brief, including the full statement.
Administrative asset freezing and confiscation
We support the draft bill in its approach to pursuing all three phases of the procedure (freezing, investigation, confiscation) within a unified administrative framework, as has long been proposed by mafianeindanke.
We agree with the administrative definition of risk set out in the explanatory memorandum to the draft bill.
Risk indicators under money laundering law, which have long been used in risk management, are suitable for defining the concept of ‘suspicious’ assets (Section 52b(4) (Draft)).
With the three-stage administrative procedure set out in Sections 72a–n (Draft), the legislator does not need to break completely new ground. Rather, it can build on existing administrative law provisions on confiscation, which, in terms of the purpose of the provision, bear parallels to the tasks involved in combating money laundering and which, in practice, have opened the procedural path to the administrative courts and the procedural principles applicable in administrative proceedings (Section 51 of the Federal Nature Conservation Act; see in this regard Munich Administrative Court, judgment of 20 March 2014 – M 10 K 12.1546)
Proposed amendments and additions to Sections 52a et seq. (D)
Sections 52a–52n ZollKrimBG-D: The reference to a threshold value in the text of the provision (in the draft: from €100,000) should be deleted and replaced by corresponding implementing provisions setting out additional criteria indicating the significance of an asset. The significance of an asset arises from the context of the individual case and not from the exceeding of abstract threshold values.
The term “beneficial owner”, which is used repeatedly, should be replaced by the term “economic owner within the meaning of Article 2(28) of Regulation (EU) 2024/1624 of 31 May 2024”. This Regulation will enter into force on 10 July 2027, thereby replacing the definition of the already questionable term “beneficial owner” in Section 3 of the Money Laundering Act.
In Section 52h (draft), the word “inclusion” is to be replaced by the word “confiscation” in the heading and in the text of the provision, and the words “assets” are to be replaced by the words “property”.
Social reuse of assets: Confiscated assets (real estate) should also be transferable to local authorities and non-governmental organisations for social purposes (more on social reuse and its benefits here). The following sentence should therefore be inserted after Section 52l(2), first sentence: “Where the confiscated asset is a plot of land, this asset may, by way of derogation from Section 42(3), be put to social reuse in appropriate cases. The realisation for the purposes of social reuse is governed by the Enforcement Regulations for Administrative Confiscation, which are issued by the Federal Ministry of Finance”.
Introduction of documentation requirements in a new Section 52o:
“(1) The customs authorities shall maintain the following data in the form of statistics to document their supervisory activities:
- the number of seizures of suspicious assets and their estimated value (Section 52d (E))
- the number of applications for orders to confiscate suspicious assets and their estimated values (Section 52h)
- the number of confiscations ordered by the court and their values (Section 52j)
The customs authorities shall transmit the data referred to in paragraph 1, as at 31 December of the reporting year, to the Federal Ministry of Finance and the Central Office for Financial Transaction Investigations in electronic form by 31 March of the following year. The Federal Ministry of Finance and the Central Office for Financial Transaction Investigations may provide a joint form for this purpose.”
Clarification of the relationship to attachment of property (Section 324 AO): It is striking that the customs directorates will in future have at their disposal two security instruments that are not systematically linked: the securing of assets under Sections 52a et seq. ZollKrimBG-E on the one hand, and the attachment of property under Section 324 AO on the other. For a future framework law on combating fiscal crime, both instruments must be brought together.
The ZFG (Draft) as the federal framework for financial police law
Taken together, the five core elements of the draft form a coherent system:
Administrative asset freezing (aVES)
Original powers of investigation into money laundering
AI authorisation and automated data analysis
Closed data cycle
Coordinating bodies in the federal states
The planned ZFG is a necessary and long-overdue step. It provides the federal government with the tools it needs to combat organised financial crime effectively. The legal basis in risk prevention is the right approach. Administrative asset freezing closes a loophole that mafianeindanke e.V. has been highlighting for years.
The regulatory framework of the draft and the effectiveness of the approach could be significantly improved if the state finance administrations, and in particular the state tax investigation authorities, were to adopt this framework for their respective areas through a separate legislative process that creates similar powers.
