32 Amendments of Eva JOLY related to 2016/0413(COD)
Amendment 84 #
Proposal for a regulation
Recital 2 a (new)
Recital 2 a (new)
(2a) Criminals smuggle cash in the Union but there are no clear estimates on the scale and value of sums smuggled across borders. Responsibility for detecting, recording and investigating cash movements is fragmented among Member States and national authorities may face legal barriers preventing customs from controlling or reporting on cash movements leaving or entering the EU. Some high value bearer instruments other than cash, such as gold, diamonds, pre-paid cards, digital wallets, bearer shares etc. are rarely reported on, due to the difficulty of detecting them or because they currently fall outside of the scope of cash regulations for most member states.
Amendment 87 #
Proposal for a regulation
Recital 6
Recital 6
(6) Directive (EU) 2015/849 identifies and describes a number of criminal activities the proceeds of which may be subject to money laundering or used for the financing of terrorism. Often, the proceeds of those criminal activities are, for the purpose of their being laundered or used for terrorism financing, transported across the external border of the Union. This Regulation should take this into account and lay down a system of rules that, apart from contributing to the prevention of money laundering including predicate offences such as tax crimes, and terrorism financing as such, facilitate the detection and investigation of the criminal activities identified in Directive (EU) 2015/849.
Amendment 91 #
Proposal for a regulation
Recital 11
Recital 11
(11) Considering their presence at the external borders of the Union, their expertise in carrying out controls on passengers and freight crossing the external border and experience gained in the application of Regulation (EC) No 1889/2005, customs authorities should continue to act as the competent authorities for the purposes of this Regulation. At the same time, the Member States should continue to be able also to designate other national authorities present at the external border to act as competent authorities. Resources from custom authorities and other national authorities should receive specific training on how to identify cash- based money laundering and Member States should allocate resources according to a risk analysis, and not disregard necessary controls of private aircrafts and yachts entering and leaving their territories.
Amendment 120 #
Proposal for a regulation
Recital 23
Recital 23
(23) Considering that the movements of cash that are subject to controls under this Regulation take place across the external border, and given the difficulty of acting once the cash has left the point of entry or exit and the associated risk if even small amounts are used illicitly, the competent authorities should be able to seize and retain cash temporarily in certain circumstances, subject to checks and balances: first, where the obligation to declare or to disclose has not been met and, secondly, where there are indications of criminal activity, irrespective of the amount or whether the cash is carried by a natural person or is unaccompanied. In view of the nature of such temporary seizure and retention and the impact that it may have on the freedom of movement and the right to property, the period of retention should be limited to the absolute minimum time that other competent authorities require to determine whether there are grounds for further intervention, such as investigations or seizure of the cash based on other legal instruments. Also, natural persons impacted by the temporary seizure and retention of their cash should be offered the possibility to keep a minimum amount of cash, where possible given the type of cash seized and retained, in order to be able to afford food, water and shelter. A decision to retain cash temporarily under this Regulation should be accompanied by a statement of reasons and adequately describe the specific factors that have given rise to the action. If at the end of the time limit no decision concerning the further intervention is taken or if the competent authority decides that there are no grounds to further retain the cash, it should immediately be made available to the declarant.
Amendment 121 #
Proposal for a regulation
Recital 24
Recital 24
(24) It is essential that competent authorities that collect information pursuant to this Regulation transmit it in a timely manner to the national Financial Intelligence Unit, in order to enable it to further analyse and compare them with other data as foreseen in Directive 2015/849 [. In addition, the creation of a European Financial Intelligence Unit would help to ensure efficient exchange of information and to improve coordination and cooperation between competent authorities across the Union.
Amendment 125 #
Proposal for a regulation
Recital 28
Recital 28
(28) For the purposes of the analysis carried out by the Financial Intelligence Units and in order to enable authorities in other Member States to control and enforce the obligation to declare, particularly with respect to declarants who have previously committed infractions against that obligation it is necessary that the declaration data is stored for a sufficiently long period so as to enable the competent authorities to effectively conduct investigations. Processing of personal data under this Regulation serves the same purposes as that under Directive (EU) 2015/849. Under this Directive, the Financial Intelligence Units retain data provided to them by "obliged entities" for five years. In order to control and enforce the obligation to declare effectively, the period of retention of declaration data should be aligned with that provided for under Directive (EU) 2015/849In line with the case-law of the Court of Justice of the European Union, such as Opinion 1/15 of 26 July 2017 on the EU-Canada PNR, a distinction should be made between personal data of suspicious persons and personal data of non-suspicious persons. When there is no suspicion that the cash may be linked to criminal activity after a risk analysis, personal data should not be kept for more than one year. When there is such a suspicion, personal data should be retained for up to three years to allow proper criminal investigations.
Amendment 132 #
Proposal for a regulation
Recital 30 a (new)
Recital 30 a (new)
(30a) In order to ensure their uniform application by competent authorities, controls should be based primarily on a risk analysis, with the purpose of identifying and evaluating the risks and developing the necessary countermeasures, and should be performed within a common risk management framework, as defined in Regulation (EU) No952/2013 of the European Parliament and of the Council, which should take into account the risk assessment analysis carried out under Directive (EU) 2015/849. The Commission should be empowered to adopt, by means of delegated acts, the definition of the criteria of this common risk management framework.
Amendment 135 #
Proposal for a regulation
Recital 31 a (new)
Recital 31 a (new)
(31a) In order to remedy the current situation whereby many travellers are not aware of their obligation to declare cash, the Commission, in cooperation with Member States, should launch regular information campaigns directed towards EU citizens and third country nationals as well as legal persons. The Commission should also make available information related to competent authorities and penalties in place at the level of Member States on its website.
Amendment 149 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) 'bearer-negotiable instrument' means an instrument other than currency which entitles its holder to claim a financial amount upon presentation of the instrument without having to prove his/her identity or entitlement to that amount;
Amendment 165 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The information shall be provided in writing or electronically using the form laid down pursuant to Article 15(a). An endorsed copy shall be delivered to the declarant upon request.
Amendment 176 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The information shall be provided in writing or electronically using the form laid down pursuant to Article 15(a). An endorsed copy shall be delivered to the declarant upon request.
Amendment 183 #
Proposal for a regulation
Article 5 – paragraph 4
Article 5 – paragraph 4
4. The controls shall be based primarily on risk analysis, with the purpose of identifying and evaluating the risks and developing the necessary counter- measures, and shall be performed within a common risk management framework in accordance with the criteria laid down in a delegated act pursuant to Article 15(b). 4. This shall not prevent competent authorities to proceed with spontaneous controls or controls based on specific information obtained by another authority. Competent authorities shall be equipped with adequate control tools, such as possible card readers in the case of pre-paid cards to ascertain the sums being effectively carried.
Amendment 185 #
Proposal for a regulation
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. The powers conferred on the competent authorities by this Article shall also extend to Article 6.
Amendment 192 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. When implementing paragraph 1, the competent authorities shall, where possible, allow natural persons to keep a minimum amount of cash with them for purposes such as covering subsistence expenses. Such minimum amount of cash shall be defined according to national law, taking into account the minimum income in the Member State where the cash is retained.
Amendment 195 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
3. The period of temporary retention shall be strictly limited to the time required for competent authorities to determine whether the circumstances of the case warrant further retention. The maximum period of temporary retention shall be laid down by national law; it mayshall not be longer than 30 days. If no determination is made regarding further retention of the cash within that period or if a determination is made that the circumstances of the case do not warrant further retention, the cash shall immediately be made available to the declarant or the person affected.
Amendment 200 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The information referred to in paragraph 1 shall be communicated as soon as possible, and no later than one monthby electronic means and no later than three working days after the date on which it was collected.
Amendment 205 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Where there are indications that the cash is related to criminal activity which could adversely affect the financial interests of the Union, the information referred to in paragraph 1 shall also be transmitted to the Commission, OLAF, Eurojust, Europol and the European Public Prosecutor’s Office.
Amendment 211 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The information referred to in paragraphs 1 and 2 shall be communicated as soon as possible, and no later than one monththree working days after the date on which it was collected.
Amendment 215 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
1. The competent authorities shall act as controllers of the personal data they obtained in accordance with Articles 3, 4, 5(3) and 6.
Amendment 216 #
Proposal for a regulation
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The processing of personal data on the basis of this Regulation shall take place only for the purposes of the prevention and fight against criminal activities. , investigation, detection or prosecution of criminal offences or the execution of criminal penalties. This processing falls under the scope of Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.
Amendment 217 #
Proposal for a regulation
Article 12 – paragraph 3
Article 12 – paragraph 3
3. The personal data obtained in accordance with Articles 3, 4, 5(3) and 6 shall be accessed only by duly authorised staff of the competent authorities and be adequately protected against unauthorized access or communication. Unless otherwise provided for in Articles 8, 9 and 10, it may not be disclosed or communicated without the express authorisation of the competent authority which originally obtained the information. However, that authorisation shall not be necessary where the competent authorities are required to disclose or communicate that information pursuant to legal provisions in force in the Member State in question, particularly in connection with legal proceedings.
Amendment 218 #
Proposal for a regulation
Article 12 – paragraph 4
Article 12 – paragraph 4
4. Personal data obtained in accordance with Articles 3, 4 and 6 shall be stored by the competent authorities and the Financial Intelligence Unit for a period of fivup to one years after the date on which it was collected. At the expiry of this period it shall be, the personal data obtained shall be automatically deleted, or rendered anonymous only for the purpose of providing anonymised statistical information pursuant to Article 15(e).
Amendment 221 #
Proposal for a regulation
Article 12 – paragraph 4 a (new)
Article 12 – paragraph 4 a (new)
4a. If there are indications that the cash is related to a criminal activity, personal data obtained in accordance with Articles 3, 4, 5(3) and 6 shall be stored by the competent authorities and the Financial Intelligence Unit for a period of up to three years after the date on which it was collected. At the expiry of this period, the personal data obtained shall be automatically deleted, or rendered anonymous only for the purpose of providing anonymised statistical information pursuant to Article 15(e).
Amendment 222 #
Proposal for a regulation
Article 12 – paragraph 4 b (new)
Article 12 – paragraph 4 b (new)
4b. Member States may allow further retention that shall not exceed three additional years, after having carried out a thorough assessment of the necessity and proportionality of such further retention and consider it to be justified and necessary for the fulfilment of their tasks and investigations with respect to the fight against money laundering or terrorist financing and the Financial Intelligence Unit determines that further retention is required.
Amendment 237 #
Proposal for a regulation
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
Amendment 244 #
Proposal for a regulation
Article 17 – paragraph 2 – subparagraph 2
Article 17 – paragraph 2 – subparagraph 2
The information referred to in point (c) of paragraph 1 shall be provided to the Commission at least every six months. The Commission shall publish an annual report on the statistical information to estimate the scale and sums of smuggled cash.
Amendment 245 #
Proposal for a regulation
Article 17 – paragraph 3 a (new)
Article 17 – paragraph 3 a (new)
3a. The Commission shall publish the information referred to in paragraph 1a and 1b on its website and inform readers, in a clear way, about the controls with respect to cash entering or leaving the Union.
Amendment 246 #
Proposal for a regulation
Article 17 a (new)
Article 17 a (new)
Article 17a Information campaigns At the start of application of this Regulation, the Commission, in cooperation with the Member States and the European Data Protection Supervisor, shall carry out a campaign informing EU citizens and third-country nationals, as well as legal persons, about the objectives of this Regulation, the obligations under Articles 3 and 4, the data stored, the list of competent authorities, the possibility for temporary retention under Article 7, the penalties introduced pursuant to Article 13 and the rights to an effective remedy. The Commission and Member States shall repeat such campaigns regularly. Member States shall devise and implement the necessary policies to inform their citizens and residents about this Regulation. Member States shall ensure that sufficient funding is made available for such information policies.
Amendment 248 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
The Commission shall submit to the European Parliament and to the Council a report on the application of this Regulation fivthree years after its entry into force and every five years thereafterthree years thereafter. That report shall evaluate whether the disclosure procedure for unaccompanied cash fits the purpose or whether the introduction of a mandatory declaration would be a more viable option and shall present, if appropriate, a legislative proposal. It shall also evaluate whether other assets should be included within the scope of this Regulation.
Amendment 250 #
Proposal for a regulation
Article 18 a (new)
Article 18 a (new)
Article 18a European Financial Intelligence Unit (FIU) By end of 2019, the Commission shall present a legislative proposal to create a European Financial Intelligence Unit that will facilitate coordination, including the exchange of information between FIUs within the Union, and generally assist and support Member Sates’ FIUs. This European Unit shall be empowered to assist national FIUs in joint analysis of cross border cases and produce its own case analysis and coordinate the work of Member States FIUs for cross border cases.
Amendment 259 #
Proposal for a regulation
Annex I – point 2 – point b a (new)
Annex I – point 2 – point b a (new)
(ba) other precious metals, including iridium, osmium, palladium, platinum, rhodium, ruthenium, or silver, having a level of purity of 500 or more parts per thousand; and an alloy containing 500 or more parts per thousand, in the aggregate, of two or more of the metals listed above;
Amendment 260 #
Proposal for a regulation
Annex I – point 2 – point b b (new)
Annex I – point 2 – point b b (new)
(bb) precious stones, including substances with gem quality market- recognised beauty, rarity, and value, and including diamond, corundum(including rubies and sapphires), beryl (including emeralds and aquamarines), chrysoberyl, spinel, topaz, zircon, tourmaline, garnet, crystalline and cryptocrystalline quartz, olivine peridot, tanzanite, jadeite jade, nephritejade, spodumene, feldspar, turquoise, lapis lazuli, opal or natural pearls.