AML 6 Directive

On 23 of October 2018 the European Parliament and the Council have issued the Directive (EU) 2018/1673 on combating money laundering by criminal law, so-called AML 6 Directive. The Directive aims to combat money laundering by means of criminal law, enabling more efficient and swifter cross-border cooperation between competent authorities.

The Directive implements 22 predicate offences for money laundering which must be uniform in all Member States:

  • participation in an organised criminal group and racketeering;
  • terrorism;
  • trafficking in human beings and migrant smuggling;
  • sexual exploitation;
  • illicit trafficking in narcotic drugs and psychotropic substances;
  • illicit arms trafficking;
  • illicit trafficking in stolen goods and other goods;
  • corruption;
  • fraud;
  • counterfeiting of currency;
  • counterfeiting and piracy of products;
  • environmental crime;
  • murder, grievous bodily injury;
  • kidnapping, illegal restraint and hostage-taking;
  • robbery or theft;
  • smuggling;
  • tax crimes relating to direct and indirect taxes, as laid down in national law;
  • extortion;
  • forgery;
  • piracy;
  • insider trading and market manipulation;
  • cybercrime.

The Directive states the definition of money laundering offences which are punishable by criminal law. In accordance with the Directive the following conduct, when committed internationally, is punishable as a criminal offence:

  • the conversion or transfer of property, knowing that such property is derived from criminal activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an activity to evade the legal consequences of that person’s action;
  • the concealment of disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is derived from criminal activity;
  • the acquisition, possession or use of property, knowing at the time of receipt, that such property was derived from criminal activity.

Aiding an abetting, inciting and attempting an offences mentioned above is also punishable as a criminal offence. Offences mentioned above are punishable by a maximum term of imprisonment of at least 4 years. The Directive also states aggravating circumstances:

  • the offence was committed within the framework of a criminal organisation;
  • the offender is an obliged entity and has committed the offence in the exercise of their professional activities;
  • the laundered property is of considerable value;
  • the laundered property derives from one of the offences mentioned above.

The directive introduces criminal liability for legal entities. Legal persons can be held liable for any of the offences mentioned above committed for their benefit by any person, acting either individually or as part of an organ of the legal person and having a leading position within the legal person, based on any of the following:

  • a power of representation of the legal person;
  • an authority to take decisions on behalf of the legal person; or
  • an authority to exercise control within the legal person.

The sanctions for legal persons shall include criminal or non-criminal fines and may include other sanctions, such as:

  • exclusion from entitlement to public benefits or aid;
  • temporary or permanent exclusion from access to public funding, including tender procedures, grants and concessions;
  • temporary or permanent disqualification from the practice of commercial activities;
  • placing under judicial supervision;
  • a judicial winding up order;
  • temporary or permanent closure of establishments which have been used for committing the offence.

The competent authorities shall freeze or confiscate the proceeds derived from and instrumentalities to be used in the commission or contribution to the commission of the offences stated by the Directive.

Where the offices mentioned in the Directive falls within the jurisdiction of more that one Member State and where any of the Member States concerned can validity prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offender, with the aim of centralising proceedings in a single Member State.

Member states had to bring into the force the laws, regulations and administrative provisions necessary to comply with the Directive by 3 December 2020.

As we can see AML 6 is addition step against money laundering and a very serious step. Of course, the offences shown in the Directive are already criminal offences in the most of countries, however for the first time the Directive unified all offences regarding money laundering together, introduced liability for legal persons and made Member State countries to cooperate and share information between each other not only in accordance with the rules of local criminal legislation. Money laundering seems to be not an easy business in Europe nowadays. Let’s see what will be the next step.

Irina Otrokhova

Chief Compliance Officer

Corporate Services

Korpus Prava (Cyprus)

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