36 Amendments of Tomáš ZDECHOVSKÝ related to 2016/0414(COD)
Amendment 33 #
Proposal for a directive
Recital 1
Recital 1
(1) Money laundering and the associated financing of terrorism and organised crime remain significant problems at the Union level, thus damaging the integrity, stability and reputation of the financial sector and threatening the internal security and the internal market of the Union. In order to tackle those growing problems and also reinforce the application of Directive 2015/849/EU34 , this Directive aims to tackle money laundering by means of criminal law, allowing for better cross- border cooperation between competent authorities. _________________ 34 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 the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p.73).
Amendment 34 #
Proposal for a directive
Recital 2
Recital 2
(2) Measures adopted solely at national or even at Union level, without taking into account international coordination and cooperation, would have very limited effect. The measures adopted by the Union in countering money laundering should therefore be compatible with, and at least as stringent as, other actions undertaken in international fora. Moreover, many international and European jurisdictions still allow the use of bearer shares, which are instrumental for receiving, owing and transferring illicit money anonymously and became a very useful tool for creating international schemes with a purpose to launder money. They allow a system which is more opaque than those in notorious tax havens such as, inter alia, Panama, Cayman Islands, Dominican Republic or Lichtenstein; therefore, the EU anti-money laundering legal framework should fully ban the use of bearer shares.
Amendment 40 #
Proposal for a directive
Recital 3
Recital 3
(3) Union action should continue to take particular account of the Financial Action Task Force (FATF) Recommendations and instruments of other international bodies active in the fight against money laundering and terrorist financing. The relevant Union legal acts should, where appropriate, be further aligned with the International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation adopted by the FATF in February 2012 (the ‘revised FATF Recommendations’). As a signatory to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198), the Union should transpose without delay the requirements of that Convention into its legal order.
Amendment 42 #
Proposal for a directive
Recital 5
Recital 5
(5) The definition of criminal activities which constitute predicate offences for money laundering should be sufficiently uniform in all the Member States. Member States should apply the crime of money laundering to all offences that are punishable with imprisonment of a level defined in this Directive. To the extent that the application of these penalties thresholds does not already do so, Member States should include a range of offences within each of the categories designated by the FATF. Where categories of offences, such as terrorism or environmental crimes, are set out in Union law, this Directive refers to such legislation. This ensures that the laundering of the proceeds of the financing of terrorism and wildlife trafficking are punishable in the Member States. Any kind of punishable involvement in the commission of a predicate offence or money laundering activity, such as participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling, should be considered as a criminal activity for the purposes of this Directive. In cases where Union law allows Member States to provide for other sanctions than criminal sanctions, this Directive should not require Member States to establish those cases as predicate offences for the purposes of this Directive.
Amendment 50 #
Proposal for a directive
Recital 8
Recital 8
(8) Where money laundering activity does not simply amount to the mere possession or use, but also involves the transfer or the concealing and disguise of property through the financial system and results in further damage than that already caused by the predicate offence, such as damaging the integrity of the financial system, that activity should be punished separately. Member States should thus ensure that such conduct, including cases of acquisition, mere possession and use, is also punishable when committed by the perpetrator of the criminal activity that generated that property (so-called self- laundering).
Amendment 51 #
Proposal for a directive
Recital 9
Recital 9
(9) In order for money laundering to be an effective tool against organised crime, it should noFor the effective countering of money laundering by criminal law measures, a conviction should be possible without being necessary to identify the specifics of the crime that generated the property, the type of crime that generated the property, let alone require a prior or simultaneous conviction for that crime. Prosecutions for money laundering should also not be impeded by the mere fact that the predicate offence was committed in another Member State or third country, provided it is a criminal offence in that Member State or third country. Member States may establish as a prerequisite the fact that the predicate offence would have been a crime in its national law, had it been committed therecrime. Moreover, Member States should take the necessary measures to ensure that the lawful origin of property, wealth and assets is demonstrated by the investigated person in every case involving large amounts of money of unclear origin, suspicious acquisitions or bank transactions, money transfer schemes such as hawala or any other potential proceeds of crime. Prosecutions for money laundering should also not be impeded by the mere fact that the predicate offence was committed in another Member State or third country, or that the person being investigated comes from a Member State where she/he is protected by immunity from prosecution, arrest and detention (such as politically exposed persons and magistrates, inter alia).
Amendment 61 #
Proposal for a directive
Recital 10
Recital 10
(10) This Directive aims to criminalise money laundering when committed intentionally. Intention and knowledge may be inferred from objective, factual circumstances. As this Directive provides for minimum rules, Member States are free to adopt or maintain more stringent criminal law rules for money laundering. Member States may, for example,should also provide that money laundering committed recklessly or by serious negligence constitutes a criminal offence.
Amendment 68 #
Proposal for a directive
Recital 11
Recital 11
(11) In order to deter money laundering throughout the Union, Member States should lay down minimum types and levels of penalties when the criminal offences defined in this Directive are committed. Where the offence is committed within a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA37 8 or where the perpetrator abused their professional position to enable money laundering or when the perpetrator is a politically exposed person, Member States should provide for aggravating circumstances in accordance with the applicable rules established by their legal systems. _________________ 37 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, (OJ L 300, 11.11.2008, p. 42)
Amendment 70 #
Proposal for a directive
Recital 12
Recital 12
(12) Given the mobility of perpetrators and proceeds stemming from criminal activities, as well as the complex cross- border investigations required to combat money laundering, all Member States should establish their jurisdiction in order to enable the competent authorities to investigate and prosecute such activities. Member States should thereby ensure that their jurisdiction includes situations where an offence is committed by means of information and communication technology from their territory, whether or not based in their territory. To ensure the success of investigations and the prosecution of money laundering offences, those responsible for investigating or prosecuting such offences should make use of effective and improved investigative tools, such as those used in combating organized crime or other serious crimes. These tools should be adapted to the latest evolutions in the field of cybercrime and money laundering, including by using bitcoins, cryptocurrencies and ransomeware attacks.
Amendment 98 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point u a (new)
Article 2 – paragraph 1 – point 1 – point u a (new)
(ua) tax crimes relating to direct taxes and indirect taxes;
Amendment 103 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point v
Article 2 – paragraph 1 – point 1 – point v
(v) all other offences, including tax crimes relating to direct taxes and indirect taxes as defined in the national law of the Member States, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards Member States that have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months;
Amendment 106 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Each Member State shall ensure that the following conduct shall be a punishable criminal offence, when committed intentionally:
Amendment 108 #
Proposal for a directive
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) the acquisition, possession or use of property, knowing at the time of receipt or at the time of use in economic and financial activities, that such property was derived from criminal activity or from an act of participation in such an activity.
Amendment 121 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) the identity of the perpetrator of the criminal activity, the type of crime that generated the property or other circumstances relating to that criminal activity;
Amendment 126 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) whether the criminal activity that generated the property was carried out in the territory of another Member State or in that of a third country, when the relevant conduct is a criminal offence under the national law of the Member State or the third country where the conduct was committed and would be a criminal offencewould have been a criminal activity in the sense of Article 2, paragraph 1 of this Directive, under the national law of the Member State implementing or applying this Articleese provisions, had it been committed there;.
Amendment 129 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The offences referred to in points (a) and (b) and (c) of paragraph 1 shall also apply to persons who committed or participated in the criminal activity from which the property was derived.
Amendment 130 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3 a. Each Member State shall ensure that the conduct referred to in paragraph 1 shall be a punishable laundering offence in cases where the offender: a) suspected that the property was proceeds; b) ought to have assumed that the property was proceeds.
Amendment 131 #
Proposal for a directive
Article 3 – paragraph 3 b (new)
Article 3 – paragraph 3 b (new)
3b. Each Member State shall ensure that the conduct referred to in paragraph 1 shall be subject to prosecution and conviction even if the suspected person has been granted immunity from prosecution, arrest and detention in her/his country of origin or within the European institutions.
Amendment 132 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Each Member State shall ensure that inciting, aiding and abetting and attemptingparticipation in, inciting, association with or conspiracy to commit, attempts to commit and aiding, abetting, counselling and facilitating in any way an offence referred to in Article 3 shall be punishable.
Amendment 136 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Each Member State shall ensure that the conduct referred to in Articles 3 and 4 shall be punishable by autonomous, effective, proportionate and dissuasive criminal penalties.
Amendment 138 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Each Member State shall ensure that the offences referred to in Article 3 shall be punishable by a maxinimum term of imprisonment of at least four years, at least in serious casesthree years, particularly where aggravating circumstances described in Article 6 are applicable.
Amendment 144 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
Amendment 148 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5 a Burden of proof Each Member State shall ensure that the burden of proof demonstrating the lawful origin of disproportionate income or property, as defined in this Directive, found by investigators or signalled by suspicious activity reports (SARs) is incumbent to the owner of such proceeds.
Amendment 153 #
Proposal for a directive
Article 6 – paragraph 1 – point a a (new)
Article 6 – paragraph 1 – point a a (new)
(aa) the offender is a politically exposed person in the sense of Directive 2015/849 or the case involves corruption of elected officials; or
Amendment 154 #
Proposal for a directive
Article 6 – paragraph 1 – point a b (new)
Article 6 – paragraph 1 – point a b (new)
(ab) the criminal modus operandi involves the use of bearer shares, offshore jurisdictions, shell companies, illegal transfers of funds through systems such as Hawala, cash couriers, smurfing activities or non-governmental organisations; or
Amendment 155 #
Proposal for a directive
Article 6 – paragraph 1 – point a c (new)
Article 6 – paragraph 1 – point a c (new)
(ac) the suspect operates as a professional money launderer for two or more different criminal groups; or
Amendment 156 #
Proposal for a directive
Article 6 – paragraph 1 – point a d (new)
Article 6 – paragraph 1 – point a d (new)
(ad) the property or money being laundered are a result of the offences defined by Directive 2017/541 or of illicit arms trafficking; or
Amendment 166 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall ensure that legal persons can be held liable where the serious negligence, lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any of the offences referred to in Articles 3 and 4 for the benefit of that legal person by a person under its authority.
Amendment 167 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are incite the commission of or arers, conspirators, perpetrators of , or are accessories (including facilitators or counsellors) to any of the offences referred to in Articles 3 and 4.
Amendment 171 #
Proposal for a directive
Article 8 – paragraph 1 – point 1 a (new)
Article 8 – paragraph 1 – point 1 a (new)
(1a) the exclusion of that legal person from entitlement to European Union funds and the permanent prohibition for that legal person to enter into contracts with public authorities;
Amendment 183 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2a. When an offence referred to in Articles 3 and 4 falls within the jurisdiction of more than one Member State and when 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. The following factors shall be taken into account, by order of priority: a) the territory of the Member State where the offence was committed; b) the nationality or residency of the offender; c) the country of origin of the victims; d) the territory where the offender was found. Member States may have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their actions.
Amendment 190 #
Proposal for a directive
Article 10 – title
Article 10 – title
Investigative tools and confiscation measures
Amendment 193 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1a. Each Member State shall ensure that specific training and effective investigative tools, such as those used in countering organised crime or other serious crimes are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 3 and 4. Such tools and training need to be adapted to the latest evolutions in the field of cybercrime and money laundering, including by using bitcoins, cryptocurrencies and ransomeware attacks. 1b. Each Member State shall ensure that their competent authorities freeze or confiscate, as appropriate, in accordance with Directive 2014/42/EU of the European Parliament and of the Council, the property derived from and the instrumentalities used in committing or attempting to commit any of the offences referred to in this Directive. The provisions of Paragraph 2 apply irrespective of the fact that a natural or a legal person has committed the laundering of proceeds or the predicate offence.
Amendment 201 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Amendment 203 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [124 months after adoption] at the latest. They shall immediately communicate the text of those provisions to the Commission.
Amendment 208 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
The Commission shall, by [124 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.