Activities of Ana GOMES related to 2016/0414(COD)
Plenary speeches (1)
Countering money laundering by criminal law (debate) PT
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on countering money laundering by criminal law PDF (1017 KB) DOC (158 KB)
Amendments (26)
Amendment 44 #
Proposal for a directive
Recital 6
Recital 6
(6) Tax crimes relating to direct and indirect taxes should be included in the definition of criminal activity, in line with the revised FATF Recommendations. Given that different tax offences may in each Member State constitute a criminal activity punishable by means of the sanctions referred to in this Directive, definitions of tax crimes may diverge in national law. However nNo harmonisation of the definitions of tax crimes in Member States’ national law is sought, however, for the purposes of this Directive, any form of tax fraud or evasion shall be covered, regardless of thresholds in national law requiring the existence of a significant amount of undeclared amounts or unpaid taxes or the systematic use of fraudulent manoeuvres.
Amendment 53 #
Proposal for a directive
Recital 9
Recital 9
(9) In order for money laundering to be an effective tool against organised crime, it should not be necessary to identify the specifics of the 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 fa, subject thato the predicate offence would have been a crime in its national law, had it been committed therconditions set out in this Directive.
Amendment 59 #
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 or by negligence or recklessness when 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. Intention, knowledge and negligent behaviour may be inferred from objective, factual circumstances. In this context it does not make a difference whether the property has been derived directly or indirectly from a certain criminal activity, in line with the broad definition of “proceeds”, as laid down in Directive 2014/42/EU. 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, provide that money laundering committed recklessly or by serious negligence constitutes a criminal offence.
Amendment 67 #
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 where the offender is a Politically Exposed Person, in accordance with national law transposing the definition provided in Article 3 (9) of the Directive 2015/489/EU , Member States shouldall 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 92 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point h a (new)
Article 2 – paragraph 1 – point 1 – point h a (new)
(ha) tax fraud and evasion relating to direct taxes and indirect taxes, regardless of thresholds in national law requiring the existence of a significant amount of undeclared amounts or unpaid taxes or the systematic use of fraudulent manoeuvres;
Amendment 99 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point v
Article 2 – paragraph 1 – point 1 – point v
(v) all 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 112 #
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 use, that such property was derived from criminal activity or from an act of participation in such an activity.
Amendment 114 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 a. Each Member State shall ensure that the conduct referred to in paragraph 1 shall be a punishable criminal offence, when: (a) the offender suspected or ought to have known that the property was derived from criminal activity or from an act of participation in such activity; and (b) 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 .
Amendment 115 #
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 and 1a to be punishable, it shall not be necessary to establish:
Amendment 120 #
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 criminal activity;
Amendment 122 #
Proposal for a directive
Article 3 – paragraph 2 – point b a (new)
Article 3 – paragraph 2 – point b a (new)
(ba) all the factual elements or all circumstances relating to the criminal activity, where it is established that property has been derived from such activity;
Amendment 124 #
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 offenceactivity under the national law of the Member State or the third country where the conduct was committed and would beimplementing or applying this Article had it been committed there. Member States may, however, require that the relevant conduct, insofar as it does not fall within the categories of crimes referred to in Article 2 (1) points (a) to (ha), constitutes a criminal offence under the national law of the other Member State implementing or applying this Article had it beenor the third country where the conduct was committed there;.
Amendment 142 #
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 maximum term of imprisonment of at least fourive years, at least in serious cases.
Amendment 145 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Each Member State shall ensure that the offences referred to in Article 3 paragraph 1 are punishable by a minimum term of imprisonment of at least two years where one of the circumstances referred to in Article 6 is applicable.
Amendment 146 #
Proposal for a directive
Article 5 – paragraph 2 b (new)
Article 5 – paragraph 2 b (new)
2b. Each Member State shall ensure that the offences referred to in Articles 3, paragraph 1a and 4 shall be punishable by a maximum term of imprisonment of at least three years.
Amendment 147 #
Proposal for a directive
Article 5 – paragraph 2 c (new)
Article 5 – paragraph 2 c (new)
2c. In complementarity with criminal penalties, and taking into account the specific circumstances of the criminal activity, each Member State shall ensure that the conduct referred to in Articles 3 and 4 shall be punishable by effective, proportionate and dissuasive administrative penalties, such as: a) a temporary or permanent ban from entering into contracts with the public authorities; b) temporary or permanent disqualification from the practice of administrative, commercial and/or other regulated activities or functions; c) a temporary or permanent ban from running for public office.
Amendment 158 #
Proposal for a directive
Article 6 – paragraph 1 – point b a (new)
Article 6 – paragraph 1 – point b a (new)
(ba) the offender is a Politically Exposed Person, in accordance with national law transposing the definition provided in Article 3 (9) of the Directive 2015/489/EU ;
Amendment 164 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Each Member State shall ensure that legal persons can be held liable for any of the offences referred to in Articles 3 and 4 committed for their benefit of thoser for the benefit of other natural or 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 165 #
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 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 their benefit of thatr for the benefit of other natural or legal persons by a person under its authority.
Amendment 179 #
Proposal for a directive
Article 9 – paragraph 1 – point b a (new)
Article 9 – paragraph 1 – point b a (new)
(ba) the offender is a habitual resident in its territory.
Amendment 180 #
Proposal for a directive
Article 9 – paragraph 1 – point b b (new)
Article 9 – paragraph 1 – point b b (new)
(bb) the offence is committed for the benefit of a natural or legal person resident or established in its territory.
Amendment 181 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 186 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2a. When an offence 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, Member States shall take into account the following factors, listed in order of priority, to decide which of them will prosecute the offenders: (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 of the Member State where the offender was found.
Amendment 188 #
Proposal for a directive
Article 10 – title
Article 10 – title
Investigative tools and freezing or confiscation measures
Amendment 195 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Each Member State shall ensure that effective investigative tools, sufficient personnel, adequate training and technological capacity, 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.
Amendment 198 #
Proposal for a directive
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
1a. Each Member State shall ensure that freezing and confiscation measures deemed appropriate are applied to the property derived from and the instrumentalities used in committing or attempting to commit offences referred to in Articles 3 and 4 of this Directive, in accordance with Directive 2014/42/EU.