46 Amendments of Daniel BUDA related to 2016/0414(COD)
Amendment 13 #
Proposal for a directive
Recital 1
Recital 1
Amendment 15 #
Proposal for a directive
Recital 2
Recital 2
Amendment 16 #
Proposal for a directive
Recital 3
Recital 3
Amendment 17 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) According to available evidence, criminal proceeds of around EUR 110 billion 1a have been injected into the main illicit markets of the European Union, while only a small fraction thereof has been recovered 2a. A stronger EU legal framework would therefore help to tackle terrorist funding more effectively and reduce the threat from terrorist organisations by making it harder for them to to finance their activities.
Amendment 18 #
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 include a range of offences within each of the categories designated by the FATFpenalise money laundering offences arising in connection with any offences punishable by deprivation of liberty to the degree stipulated in this Directive. Furthermore, where this is not already being done through the application of these penalty thresholds, Member States should include a range of offences within each of the categories designated on the basis of this Directive. In that case, Member States may decide on how to classify the range of offences in the relevant categories. Where categories of offences, such as terrorism or environmental crimes, areinclude offences 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 StatesMember States should, in line with the above definition, treat any offence provided for in this EU legislation as a predicate offence. The expression 'any offence' does not necessarily imply that all offences defined in existing EU instruments should be considered predicate offences. (...). Any involvement in the commission of a predicate offence punishable under national law as a criminal offence is also regarded 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 establishclassify those cases as predicate offences for the purposes of this Directive.
Amendment 20 #
Proposal for a directive
Recital 7
Recital 7
(7) This Directive should not apply to money laundering as regards property derived from offences affecting the Union's financial interests, which is subject to specific rules as laid down in Directive 2017/XX/EU36.Nevertheless, Member States may still transpose these two Directives through a single comprehensive framework at national level. In accordance with Article 325(2) TFEU, the Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests. _________________ 36Directive 2017/XX/EU of the European Parliament and of the Council of x x 2017 on the protection of the Union's financial interests by means of criminal law (OJ x L, xx.xx.2017, p.x).
Amendment 21 #
Proposal for a directive
Recital 8
Recital 8
(8) WhereMember States should thus ensure that certain types of money laundering activity are also punishable when committed by the perpetrator of the criminal activity through which the property was obtained (self-laundering). Where, in such cases, money laundering activity does not simply amount to the mere possession or use, but also involves the transfer or the, conversion, concealing andor 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 is also punishable when committed by the perpetrator of thefor example by putting into circulation the proceeds of criminal activity, that generated that property (so-called self- laundering)ereby concealing the illegal provenance thereof, such activities should also be punishable.
Amendment 23 #
Proposal for a directive
Recital 9
Recital 9
(9) In order for criminal proceedings against money laundering to be an effective tool against organised crime, it should not be necessary, sentencing should be possible without the need to identify the specifics of the crimepredicate offence that that generated the property, let alone requireand still less point to a prior or simultaneous conviction for that crime. In line with their internal legal requirements, Member States may provide the necessary guarantees through non- legislative means. 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 thersubject to the conditions set out in this Directive.
Amendment 25 #
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. and in the knowledge that the property was obtained through illegal acts. In this context it is irrelevant whether the property was obtained directly or indirectly from such activities, in accordance with the broad definition of 'proceeds of criminal acts', as laid down in Directive 2014/42/EU. Intention and awareness of the facts 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. Where there are divergences between Member States between legal definitions regarding the subjective element required for the offence, but these divergences have not been identified as a substantial problem for cross-border cooperation., the Member States may, for example, provide that money laundering committed recklessly or by serious negligence constitutes a criminal offence.
Amendment 26 #
Proposal for a directive
Recital 11
Recital 11
Amendment 28 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) Member States should ensure that judges or courts may take into account aggravating circumstances as defined in this Directive when determining sentences for offenders, although there is no obligation to increase the penalty.It is up to the judges or courts to decide, in view of all the facts of the case, whether to take into account the aggravating circumstance.Member States are not required to adduce aggravating circumstances in cases where sentences for the offences defined in Framework Decision 2008/841/JHA are determined separately under national law and may result in severer penalties.
Amendment 30 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) To ensure the success of investigations and prosecution of money laundering offences, those responsible for investigating or prosecuting such offences should be given access to effective investigative tools such as those used to combat organised crime or other serious crimes.The use of such tools should, in accordance with national law, take into account the principle of proportionality and the nature and seriousness of the offences under investigation and respect the right to personal data protection.
Amendment 32 #
Proposal for a directive
Recital 14
Recital 14
(14) Since the objective of this Directive, namely to subject money laundering in all Member States to effective, proportionnate and dissuasive criminal penalties, cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale and effects of this Directivethereof, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.
Amendment 33 #
Proposal for a directive
Recital 14
Recital 14
Amendment 34 #
Proposal for a directive
Recital 15
Recital 15
Amendment 35 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of money laundering, helping to update existing legislation and remedy any shortcomings identified.This would create a strengthened EU legal framework making it possible to deal with terrorist funding more effectively and reduce the threat from terrorist organisations by making it harder for them to finance their activities.
Amendment 36 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. The establishment, implementation and enforcement of the provisions of this Directive should be carried out in full compliance with the obligations set out in the Charter of Fundamental Rights of the European Union.All measures adopted by the Union and its Member States in relation to the criminalisation of money laundering as provided for in this Directive, and the determination of criminal and non-criminal sanctions thereof, must be subject to the principle of legality and proportionality of criminal offences and penalties, to the presumption of innocence and to the rights of defence, and should exclude any forms or arbitrariness.
Amendment 39 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part
Article 2 – paragraph 1 – point 1 – introductory part
(1). "criminal activity" means any kind of criminal involvement in the commission of the following crimesall offences under national law that are punishable by deprivation of liberty or a detention order for a maximum of at least 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 at least six months; Member States shall take the measures necessary to ensure that a range of offences falling within the categories listed below are regarded as criminal activity for the purposes of this Directive:
Amendment 41 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point p
Article 2 – paragraph 1 – point 1 – point p
(p) smuggling (including in relation to customs and excise duties and taxes);
Amendment 42 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point p a (new)
Article 2 – paragraph 1 – point 1 – point p a (new)
(pa) tax crimes linked to direct and indirect taxation as defined under national law in the Member State;
Amendment 43 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point v
Article 2 – paragraph 1 – point 1 – point v
Amendment 44 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Each Member States shall take the necessary measures to ensure that the following conduct shall be a punishable criminal offence, when committed intentionally:
Amendment 45 #
Proposal for a directive
Article 3 – paragraph 1 – point a
Article 3 – paragraph 1 – point a
(a) the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such 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;
Amendment 46 #
Proposal for a directive
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) the concealment or 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 or from an act of participation in such an activity;
Amendment 47 #
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, that such property was derived from criminal activity or from an act of participation in such an activity.;
Amendment 49 #
Proposal for a directive
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
2. In order for an offence referred to in paragraph 1 to be punishable, it shall not be necessary to establishMember States shall take the necessary measures to ensure that:
Amendment 51 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) a prior or simultaneous conviction for the criminal activity that generated the propertyshall not be a precondition for sentencing perpetrators of the offences referred to in paragraph (1);
Amendment 53 #
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 that generated the property or other circumstances relating to that criminala conviction for the offences referred to in paragraph (1) shall be possible where it is established that the property has been obtained through the criminal activities referred to in Article 2(1), without it being necessary to establish all the facts or circumstances surrounding such activity;.
Amendment 56 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) whether the criminal activity that generaoffences referred to in paragraph (1) shall extend theo property was carried outobtained through the acts committed in the territory of another Member State or in that of a third country, when the relevant conduct iswould be a criminal offence under the national law of the Member State or the third country wactivity if committed in the territory of the Member State concerned. Member States may also call for the re thelevant conduct was committed and would be a criminal offencto be treated as an offence punishable under the national law of the other Member State implementing or applying this Article had it been committed thereor third country in question;
Amendment 57 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The offences referred to in points (a) and (b) of paragraph 1 shall also apply toMember States shall take the measures necessary to ensure that the conduct referred to in points (a) and (b) of paragraph 1 is considered as a punishable criminal offence when perpetrated by persons who committed or participatwere involved in the criminal activity from which the property was derived.
Amendment 60 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Amendment 61 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Each Member States shall take the measures necessary to ensure that the conduct referred to in Articles 3 and 4 shall be punishable by effective, proportionate and dissuasive criminal penalties with full respect for fundamental rights.
Amendment 62 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Each Member States shall take the measures necessary to ensure that the offencesconduct referred to in Article 3 shall be punishable by a maximum term of imprisonment of at least four years, at least in serious cases.;
Amendment 64 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
Member States shall ensure that the following circumstances shall be regardtake the measures necessary to ensure that, where offences have been committed within a criminal organisation as defined under Framework Decision 2008/841/JHA, this may, in line with domestic legislation, be considered asn aggravating circumstances, in relation to the offencesconduct referred to in Articles 3 and 4 when:.
Amendment 65 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) Member States may rule that, where the offender has a contractual relationship and a responsibility towards an obliged entity or is an obliged entity within the meaning of Article 2 of Directive 2015/849/EU and has committed the offence in the exercise of their professional activities, this may be considered an aggravating circumstance as referred to in Articles 3 and 4.
Amendment 68 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Each Member States shall take the necessary measures to ensure that legal persons can be held liable for any of the offencesconduct referred to in Articles 3 and 4 committed for their own benefit of those legal persons 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:
Amendment 69 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall also take the necessary measures to ensure that legal persons canmay be held liable where the lack of supervision or control by a person referred to in paragraph 1 of this article has made possible the commission of any of the offenceacts referred to in Articles 3 and 4 for the benefit of that legal person by a person under its authority.
Amendment 70 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Liability of legal persons under paragraphs 1 and 2 of this article shall not exclude criminal proceedings against natural persons who incite the commission of or are perpetrators of , or are accessories to any of the offencesare perpetrators, instigators or accessories to the conduct referred to in Articles 3 and 4.
Amendment 71 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
Amendment 73 #
Proposal for a directive
Article 8 – paragraph 1 – point 1
Article 8 – paragraph 1 – point 1
(1) the exclusion of that legal person from entitlement to public benefits or aid;
Amendment 74 #
Proposal for a directive
Article 8 – paragraph 1 – point 2
Article 8 – paragraph 1 – point 2
(2) the temporary or permanent disqualification of that legal person from the practice of commercial activities;
Amendment 76 #
Proposal for a directive
Article 8 – paragraph 1 – point 3
Article 8 – paragraph 1 – point 3
Amendment 77 #
Proposal for a directive
Article 8 – paragraph 1 – point 4
Article 8 – paragraph 1 – point 4
Amendment 79 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Each Member State shall take the necessary measures to establish its jurisdiction over the offencesconduct referred to in Articles 3 and 4 where:
Amendment 80 #
Proposal for a directive
Article 9 – paragraph 2 – introductory part
Article 9 – paragraph 2 – introductory part
2. A Member State shall inform the Commission where it decides to establish further jurisdiction over the offencesconduct referred to in Articles 3 and 4 committed outside its territory where:
Amendment 83 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
Each Member State shall ensure that 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 offencesconduct referred to in Articles 3 and 4.