Cooperation of national financial intelligence units from the European Union in the exchange of information on money laundering crimes related to migration crimes
- Krzysztof Mucha
- 5 hours ago
- 8 min read
The crime of money laundering is a problem on an international scale, so efforts to combat it should be global.
Migration crimes, as the so-called basis crimes, are always associated with obtaining financial benefits as a result of committed prohibited acts, which is also subject to mutual analytical and information cooperation of national financial intelligence units from the European Union in the field of information exchange.
On the other hand, accepting financial benefits, such as means of payment, financial instruments, securities, foreign exchange values, property rights or other movable or immovable property derived from the commission of a prohibited act, possessing, using, transferring or exporting them abroad, concealing, transferring or converting them, assisting in the transfer of their ownership or possession, or undertaking other actions that may frustrate or significantly hinder the determination of such assets their criminal origin or place of placement, their detection, seizure or forfeiture is a consequential offence, the so-called money laundering offence.
An important role in activities related to preventing and combating money laundering, which may also originate from migration crimes, is played by the Financial Action Task Force (FATF).
The FATF is an intergovernmental body established in 1989 by the Ministers of FATF member jurisdictions. The FATF's mandate empowers it to set standards and promote the effective implementation of legal, regulatory, and operational measures to address money laundering and other related threats to the integrity of the international financial system.
The FATF recommendations are recognized as a global standard for anti-money laundering (AML) and countering the financing of terrorism (CFT).[1]
In order to ensure effectiveness and avoid any interpretative doubts related to money laundering, in February 2012 the International Standards on Countering Money Laundering and Countering the Financing of Terrorism and Proliferation were adopted during the FATF Plenary Session, which in the version currently in force were updated in February 2023.
In cooperation with other international stakeholders, the FATF also works to identify vulnerabilities at the national level to ensure that the international financial system is protected from fraud.
The FATF recommendations set out a comprehensive and coherent framework of measures that should be implemented by the Member States of the European Union to prevent money laundering. Given the fact that these countries have different legal, administrative and operational frameworks and different financial systems, they cannot take identical measures to counter these threats. Therefore, the FATF Recommendations set an international standard that states should implement using measures tailored to individual conditions and circumstances.
The FATF recommendations also set out key measures that European Union Member States should implement in order to:
1. identifying risks and developing national coordination policies and mechanisms;
2. prosecuting money laundering, terrorist financing and proliferation financing;
3. preventive measures for the financial sector and other identified sectors;
4. defining the powers and responsibilities of competent authorities (e.g. investigation, prosecution and supervision) and other institutional measures;
5. increasing the transparency and availability of information on beneficial ownership of legal persons and entities without legal personality, and
6. facilitate international cooperation.[2]
According to the Interpretative Note to Recommendation 3 of the FATF (crime of money laundering), the Member States of the European Union should criminalise money laundering on the basis of the provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (Vienna Convention) and the United Nations Convention against Transnational Organised Crime, 2000 (Palermo Convention). They should also apply the offence of money laundering to all serious crimes, in a manner that covers the widest range of predicate offences. Predicate crimes can be described by reference to all crimes (e.g. migration crimes) or to a threshold associated with a category of serious crimes; or to the custodial sentence applied to the underlying offence (threshold approach); or to the list of predicate offences; or a combination of these approaches.
On the basis of Recommendation 3 of the FATF, if the Member States of the European Union are obliged to apply a threshold approach, and the underlying offences should, at least, cover all offences included in the category of serious offences in their national law, or cover offences punishable by a maximum penalty of more than one year's imprisonment, or, in the case of countries applying a minimum threshold for offences in their legal system, their predicate offences should cover all offences punishable by more than six months' imprisonment.
Regardless of the approach adopted, each Member State of the European Union should, at least, include in each designated category of crimes a number of economic or criminal crimes, i.e. e.g. migration crimes.[3]
The Member States of the European Union, as indicated by the FATF Methodology, should promptly, constructively and effectively provide the widest possible range of mutual legal assistance in relation to investigations, criminal prosecutions and related proceedings relating to money laundering, related predicate crimes and terrorist financing. They should also have an adequate legal basis for providing assistance and, where appropriate, treaties, agreements or other mechanisms to facilitate cooperation.
The Member States of the European Union should, in particular:
1. prohibit or introduce unreasonable or unfairly restrictive conditions for the provision of mutual legal assistance;
2. ensure that transparent and effective processes are in place for the ongoing prioritisation and implementation of mutual legal assistance requests;
3. use a central authority or other established official mechanism for the effective transmission and implementation of requests by FIUs;
4. to monitor the progress of the requests, operate a case management system and not refuse to comply with a request for mutual legal assistance from a Financial Intelligence Unit solely on the ground that the offence also involves tax matters;
5. not refuse to comply with a request for mutual legal assistance of a financial intelligence unit for reasons such as that the regulations oblige financial institutions or designated entities and professions providing non-financial services to maintain secrecy or confidentiality (except when the relevant requested information is in possession in circumstances to which legal professional secrecy applies);
6. maintain the confidentiality of the mutual legal assistance requests they receive and the information contained therein, subject to the fundamental principles of national law, in order to protect the integrity of the investigation or inquiry. If the requested State cannot comply with the confidentiality requirement, it should inform the requesting State without delay.
The Member States of the European Union and their Financial Intelligence Units should provide mutual legal assistance regardless of the absence of double criminality, if the assistance does not involve coercive action. They should consider adopting measures that may be necessary to enable them to provide a wide range of support in the absence of double criminality.
The Member States of the European Union should also provide each other, from among the investigative powers and techniques and all other investigative powers and techniques available to their competent authorities:
1. all possibilities for generating, searching and seizing information, documents or evidence (including financial records) from financial institutions or other persons, and for receiving witness statements;
2. a wide range of other powers and investigative techniques.
The Member States of the European Union and their Financial Intelligence Units should, when requesting mutual legal assistance, make every effort to provide full factual and legal information that will enable the timely and effective implementation of requests, including the need for urgent action, and should send requests by swift means. Before sending applications, you should therefore make every effort to ensure compliance with the legal and formal requirements in order to receive assistance.[4]
Member States of the European Union should ensure that their Financial Intelligence Units can engage in expeditious, constructive and effective international cooperation to the fullest extent in relation to money laundering, related predicate crimes and terrorist financing. They should cooperate spontaneously and on request, based on a legal basis setting out the framework for cooperation, and empower their FIUs to use the most effective means of cooperation.
Relevant FIUs should use transparent channels or mechanisms to effectively send and execute requests for information or other support, and should have transparent and effective processes in place to prioritise and timely fulfil requests and safeguard the information obtained.[5]
The Member States of the European Union should have a legal basis that allows them to swiftly provide the widest possible range of mutual legal assistance in relation to money laundering, related predicate crimes, and investigations, criminal proceedings and similar proceedings in the field of terrorist financing. Mutual legal assistance should not be prohibited or unjustified or excessive restrictions should be established in this regard.
The Member States of the European Union should keep the requests for mutual legal assistance they receive and the information contained therein secret, subject to the fundamental principles of national law, in order to ensure the proper conduct of the investigation or investigation.[6]
Article 53.1 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC indicates that the Member States of the European Union shall ensure that that FIUs exchange with each other, on their own initiative or upon request, any information that may be relevant to the processing or analysis of information by the FIU and related to the money laundering of the natural or legal person involved in those activities, even if the type of predicate offences that may relate to the information is not specified at the time of the information exchange.
Pursuant to Article 53.2 and 3 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015, the Member States of the European Union are obliged to ensure that – at the time of responding to a request for information submitted by another Financial Intelligence Unit – the Financial Intelligence Unit to which the request was addressed is obliged to use the full scope of powers available to it, would normally be used on a national basis to obtain and analyse the information. The financial intelligence unit to which the request has been addressed is to respond in a timely manner.
If the FIU wishes to obtain additional information from an obliged entity established in another Member State of the European Union that operates in its territory, the request shall be addressed to the FIU of the Member State of the European Union on the territory of which the obliged entity is established. This Financial Intelligence Unit shall promptly forward requests and responses.
A FIU may refuse to exchange information only in exceptional circumstances where such an exchange would be contrary to the fundamental principles of its national law. These exceptions need to be clarified in such a way as to prevent abuse and excessive restrictions on the free exchange of information for analytical purposes.
As indicated in Article 54 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015, the information and documents received are used to perform the tasks of the FIU specified in this Directive. When exchanging information and documents, the transmitting FIU may impose restrictions and conditions on the use of that information.
With regard to the protection of information, it should also be noted that, in accordance with Article 55.1 and (2), Member States of the European Union shall ensure that the information exchanged is used only for the purposes for which it was requested or presented, and that any case where a financial intelligence unit receiving the information transmits that information to any other authority, agency or department, or any use of the information for purposes beyond those originally authorised, was subject to the prior approval of the Financial Intelligence Unit providing the information.[7]
[1] https://www.fatf-gafi.org/ (date of reading: 25.09.2024).
[2] FATF (2012-2023), International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, FATF, Paris, France, www.fatf-gafi.org/recommendations.html, p. 7, (read on 25.09.2024).
[3] FATF (2012-2023), International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, FATF, Paris, France, www.fatf-gafi.org/recommendations.html, pp. 38-39, (read on: 25.09.2024).
[4] FATF (2012-2023), International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, FATF, Paris, France, www.fatf-gafi.org/recommendations.html, pp. 27-28, (read on 25.09.2024).
[5] FATF (2012-2023), International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, FATF, Paris, France, www.fatf-gafi.org/recommendations.html, pp. 29-30, (read on 25.09.2024).
[6] FATF (2013-2023), Methodology for Assessing Compliance with the FATF Recommendations and theEffectiveness of AML/CFT Systems, updated June 2023, FATF, Paris, France, pp. 90, http://www.fatf-gafi.org/publications/mutualevaluations/documents/fatf-methodology.html (read on 20.09.2024).
[7] Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (Official Journal of the European Union, OJ L 2015, p. L 141, 5.6.2015).
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