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THE EU 6TH AML DIRECTIVE – AWAITING IMPLEMENTATION

In the previous article we wrote about EU 5th AML Directive (2018/843). [1] Currently, after 6 months of passing the 5th AML Directive, the new 6th AML Directive was prepared and passed by the European Parliament and European Council. The new directive (EU 2018/1673) was passed on 23 October 2018 and came into legal effect on the twentieth day following that of its publication in the official journal of the European Union. In respect of the Directive provisions the Member States shall implement the 6AMLD by 3 December 2020 and immediately inform the Commission thereof.

Article 13

Transposition

  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 3 December 2020. They shall immediately inform the Commission thereof.[2]

Polish legislator has not yet implemented the 6th Directive despite the fact that the deadline for doing so passed on 3 December 2020.

THE 6TH AMLD’S PROVISIONS

  • Subject matter and scope

In Article 1 of AMLD there is a generally speaking a designation of this Act. Thus, the Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of money laundering. [3] Additionally, in article 1 there is an exclusion from the scope of the directive covering money laundering as regards property derived from criminal offences affecting the Union’s financial interests, which is subject to specific rules laid down in Directive (EU) 2017/1371. [4]

  • Legal definition

Crucial part of the Directive is article 2 including the legal definitions of:

  1. Criminal activity with detailed list of 22 predicate offences such as: terrorism, sexual exploitation, corruption, piracy, cybercrime, etc.;
  2. Property;
  3. Legal person;
  4. Money laundering offences (in article 3).

These legal definitions are intended to harmonize money laundering definition across the EU (in order to remove loopholes in the national legislations of the member states). The inclusion of cyber-crime to the predicate offences catalogue is something entirely new. After its implementation, in every member state there will be one, unified and synchronized list of predicate offences involving money laundering danger.

  • Expanded penalization scope

In article 4 of AMLD there is an extended money laundering penalization scope. This article expands punishability of

  1. aiding;
  2. abetting;
  3. inciting;
  4. attempting

an offence (referred to article 3 section 1 and 5).

Prior to 6AMLD, EU money laundering regulations sought only to punish those who profited directly from the act of money laundering, but under the new rules, so-called “enablers” will also be legally culpable. 

  • Not only the liability of natural persons

Under current rules only natural persons are liable for money laundering crime. But under the laws of the 6th AMLD there is a criminal liability extension. In accordance to article 7 and 8 of the Directive, the legal persons can be held liable for any of the offences referred to in article 3 section 1 and 5 and article 4. Moreover, article 8 introduces a catalogue of criminal fines for legal persons such as:

  1. Exclusion from entitlement to public benefits or aid;
  2. Temporary or permanent disqualification from the practice of commercial activities;
  3. A judicial winding-up order.[5]
  • Cooperation in case of dual criminality

In the globalized times, especially under the economic, social and institutional circumstances of the European Union functioning there is a reasonably large and likely risk of international crime between two or multiple jurisdictions. If there were not synchronized rules, it would be a transnational and transboundary problematic issue of prosecuting someone who is suspected of committing money laundering crime. But article 10 introduces that:

1. Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 3 and 4 where:

(a) the offence is committed in whole or in part on its territory;

(b) the offender is one of its nationals.[6]

and

3. Where an offence referred to in Articles 3 and 4 falls within the jurisdiction of more than one Member State and where any of the Member States concerned can validly 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. [7]

Thus, there is law harmonizing and adjusting national legislatives to dual criminality problem.

NO TIME TO WASTE – A NECCESITY OF 6TH AMLD IMPLEMENTATION

In order to protect from and prepare European Union’s and Member States’ legislation on money laundering crimes, the 6th AML Directive should be implemented as fast as possible. Not only because the ultimate date of national legal system adjustment has long passed but particularly because the efficiency and effectiveness of this regulation depend on their comprehensive implementation in every member state. Only then there will be an effective European criminal justice system that combats money laundering crimes and complies with the previous EU AML directives, especially with the 5th one.

Sources:

  1. https://complyadvantage.com/knowledgebase/6th-money-laundering-directive-6amld/
  2. https://www.refinitiv.com/perspectives/regulation-risk-compliance/what-the-eu-6amld-means-for-your-compliance-programme/
  3. https://www.electronicid.eu/en/blog/post/aml6-sixth-anti-money-laundering-directive/en
  4. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018L1673&from=EN
  5. https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN

[1] To see the previous article: odesłanie do artykułu o 5AML i nowelizacji polskiej ustawy: link, (access date: 10th August, 2021).

[2] https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN, (access date: 10th August, 2021).

[3] Article 1 section 1 of the Directive (EU) 2018/1673, https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN, (access date: 10th August, 2021).

[4] Article 1 section 2 of the Directive (EU) 2018/1673, https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN, (access date: 10th August, 2021).

[5] https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN, (access date: 10th August, 2021).

[6] https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN, (access date: 10th August, 2021).

[7] https://eur-lex.europa.eu/legal-content/PL/TXT/PDF/?uri=CELEX:32018L1673&from=EN, (access date: 10th August, 2021).

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