How are OLAF reports implemented in the Member States and what is their impact on the customs decisions of Member States? The following briefing shows that despite the lack of binding effect, OLAF reports often have a significant impact on subsequent measures at a national level. In particular, these reports have a considerable influence over the protection of confidentiality under customs law.

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Germany has been tightening its foreign investment control rules significantly in the past. This stricter view was confirmed yesterday: According to reports in the German press the Federal Cabinet prohibited a transaction by a Chinese state-owned enterprise (SOE) because the acquisition would pose a threat to Germany’s public order and security.

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Where OLAF investigations, and in particular OLAF reports, violate the rights of natural and legal persons, such as data protection rights or procedural guarantees, it is possible to submit complaints and take legal action against OLAF. Various possibilities exist at both European and national level:

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In the course of external investigations, OLAF has the power to conduct on-site controls and inspections in accordance with Article 3 (2) of Regulation (EU, EURATOM) No. 883/2013. As a preliminary remark, it is important that the management appears to remain calm, because an on-site OLAF search places immense stress on staff. In particular, the management should observe the following rules of conduct:

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OLAF operates in cases of fraud, corruption and offences affecting the financial interests of the EU. OLAF’s power to investigate is not limited to investigation internal to the EU institutions and bodies, but it can also conduct external investigations. Such external investigations are administrative in nature and serve to detect fraud or other offences committed by natural or legal persons.

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The European Anti-Fraud Office (OLAF, abbreviation for Office Européen de Lutte Anti-Fraude) is an office established by the European Commission. It is currently attached to the Commissioner for Taxation and Customs Union. However, OLAF is completely independent in the way it exercises its investigative mandate. The current head of OLAF is Director General Ville Itälä. The organisation is divided into four directorates.

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Misuse of the EU budget and evasion of taxes, duties and levies has increased significantly in recent years. This should be prevented to protect the EU-taxpayer. The European Anti-Fraud Office (OLAF) was established to investigate fraud, corruption and other criminal acts affecting the EU’s financial interests. For this purpose, it can conduct investigations both inside and outside the EU institutions and bodies. In its final investigation report, OLAF makes recommendations to the European institutions or to the competent national authorities of the EU Member States as to whether legal, financial, disciplinary or administrative measures should be taken.

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Digital information and online communication are becoming more and more important. As a result, people are increasingly aiming to protect their IT systems against attacks. Cybersecurity considerations play a special role in governmental restrictions on foreign direct investments (FDI) to protect against foreign interference in key infrastructure or security-related sectors. In Germany, this has led to increased scrutiny of M&A transactions by the German Federal Ministry for Economic Affairs and Energy (FMEA) – not limited to companies active in key areas of software development or IT security.

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Following the successful acquisition by FSN Capital V in the MHP Solution Group and its German subsidiaries, BLOMSTEIN has taken over the Foreign Direct Investment application for the indirect acquisition.

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The digitalisation of global trade is constantly expanding. In the 21st century data will become the most important commodity, according to a report in the German newspaper “Handelsblatt”. The continuing development of 3D printing technology makes it possible to send, instead of the actual goods, data that can then be used to print the goods directly at the receiving end. The more the digitisation of trade develops, the more important cybersecurity products are becoming.

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