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Update Sixth anti-money laundering Directive

10 December 2019
Banking & Finance - Notarial practice - Corporate Law

On 12 November 2018, Directive (EU) 2018/1673 on combating money laundering by criminal law, also known as the Sixth anti-money laundering Directive (“AML6”), was published in the Official Journal of the European Union. In this update, we will discuss the background and several important amendments of the AML6.

Background

The current criminal qualifications of money laundering have proven to be insufficient to combat money laundering within the European Union in a uniform and adequate manner. Due to technological developments, authorities are confronted with new challenges whilst combatting money laundering and the use of virtual currencies has also resulted in new risks and challenges. Such challenges will have to be dealt with in a uniform manner. Therefore, the AML6 introduces new minimum rules regarding the criminal qualification of money laundering.

Important amendments

Definitions
The AML6 provides an expansion of the “criminal activities” which should be qualified by EU Member States as standard offences in relation to money laundering. The AML6 introduces 22 new standard offences, including participation in an organised criminal group and racketeering, environmental crime, tax crimes relating to direct and indirect taxes and cybercrime.

In addition, the AML6 provides that not only committing money laundering-offences will qualify as a criminal offense, but also aiding and abetting, inciting and attempting money laundering-offences. EU Member States should ensure that certain types of money laundering activities are also punishable when committed by the perpetrator of the criminal activity that generated the goods (also known as “self-laundering”). In such cases the money laundering activity does not simply amount to the mere possession or use of goods, but also involves the transfer, conversion, concealment or disguise of goods. An example of self-laundering is the transfer of money which was obtained by someone as a result of illegal gun trafficking.

Sanctions
Furthermore, EU Member States should take measures to ensure that money laundering-offences are punished with effective, adequate and discouraging criminal punishments. Based on the AML6, the maximum term of imprisonment in relation to money laundering-offences should be increased to at least four years (this used to be one year). In addition, EU Member States should provide new additional sanctions and measures such as fines, temporary or permanent exclusion from access to public funding or aid, temporary or permanent disqualification from the practice of commercial activities or placing under judicial supervision. Such sanctions not only concern natural persons, but also legal entities to the extent that the criminal acts are committed for its benefit by a person having a leading position within such legal entity.

Cooperation between EU Member States
In order to improve criminal prosecution, the AML6 expands the possibilities of international cooperation. If multiple EU Member States can prosecute a money laundering-offence, such EU Member States must cooperate and appoint one EU Member State where the prosecution will be initiated. Moreover, EU Member States must adopt measures which enable the competent authorities to conduct their investigations and cooperation more effectively and more efficient.

Dutch legislation

By 3 December 2020 the AML6 must be implemented in Dutch legislation. Currently, there is no further information in relation to the implementation of the AML6 available. We expect that a new update will be published in this respect shortly.

Please do not hesitate to contact our Banking & Finance team if you have any further questions regarding the consequences of the AML6 for you.