25 April 2022
Latest editorials All articles
This article describes the role and activities of the Italian notary in the fight against money laundering. The Italian notaryship has always been committed to this fight: compared to other professional groups obliged by the relevant anti-money laundering legislation, notaries submit 91% of the reports on suspicious transactions; it recently also proposed the creation of an anti-money laundering data warehouse based on the Spanish model and considered to be an excellent tool by the Financial Action Task Force (FATF). In addition, the Italian notary will closely follow the process of new EU regulations on anti-money laundering during its presidency of the Council of the Notariats of the European Union (CNUE) in 2022. It will work to ensure that the new legislation takes into account the specificities of the notarial profession with its public function.Read more
The Role of Local Authorities in the Prevention of and Fight against Money Laundering
The Need for More Possibilities for International Information Exchange in the Administrative AML Approach
Criminal organisations use and misuse legal structures in order to launder the money they earn through crimes. Local authorities can unwittingly and unwillingly facilitate crime and money laundering. After all, criminals or people who can be linked to crime and money laundering have to make use of certain legal structures in order to launder their money. They have to apply for permits, they need housing, etc. In order to prevent this misuse of legal structures, the information exchange between law enforcement authorities is necessary, and an administrative, integrated approach to preventing and fighting organised crime is needed.
Such information exchange often poses problems in border regions, however, as most of the laws with regard to information exchange between different authorities are written with purely national situations in mind. In border regions, citizens from neighbouring countries often also apply for certain permits if they wish to do business in a … Read more
The Anti-Money-Laundering Directive and the ECJ’s Jurisdiction on Data Retention
A Flawed Comparison?
Early in its development, the EU’s anti-money laundering (AML) scheme was already criticized for its interference with the fundamental rights to privacy. Quite recently, some scholars have highlighted that customer due diligence obligations constitute a massive retention of financial data. Consequently, they have tried to apply the ECJ’s findings on data retention of telecommunication traffic data to the AML framework. Financial data is quite legitimately seen as a honeypot for law enforcement authorities, which makes a comparison between retention of financial data and retention of telecommunication traffic data readily apparent. Surprisingly, not much attention is paid to the AML framework in this context, compared to the pile of comments telecommunication data. Not even the EDPS mentioned data retention as a problem in his opinion of the EU’s action plan on money laundering in 2020. It is thus also not surprising that no alterations to the retention obligations can be found … Read more
Potentials and Limits of Public-Private Partnerships against Money Laundering and Terrorism Financing
In its 2020 Action Plan to comprehensively reform the EU’s Anti-Money Laundering and Terrorism Financing (AML/CFT) framework, the European Commission announced, inter alia, that it would issue guidance for Public-Private Partnerships (PPPs). Furthermore, in respect of the envisaged new EU-level Anti-Money Laundering Authority (AMLA), the legislative package published in July 2021 entails a draft provision to allow the AMLA to participate in national or supranational PPPs. If adopted, AML/CFT PPPs will have a legislative foundation in EU law. Though details would still be left to Member States, it is high time to assess the policy ideas behind PPPs as well as their legal ramifications.Read more
A Reasoned Approach to Prohibiting the Bis in Idem
Between the Double and the Triple Identities
The ne bis in idem protection in Art. 50 CFR restricts the ability of EU and national enforcement authorities to prosecute or punish the same defendant for the same criminal offence more than once. Under the Member States’ legal traditions, the notion of “same offence“ or idem requires a triple identity: of the offenders, the material facts, and the protected legal interests. A broader notion of idem that only requires a double identity is laid down in Art. 54 CISA, which entails the prohibition of double prosecution of the same offender for the same “material acts”. The CJEU’s case law is inconsistent: sometimes the Court requires double identity, thus giving effect to Art 54 CISA (as far as intra-state judicial cooperation is concerned), while requiring triple identity in other cases, in particular in the area of competition law. With the Menci judgment the CJEU aligned the interpretation of the notion … Read more
This article sheds light on the compensation for unjustified detention that occurred while carrying out the European Arrest Warrant. First, the article exposes the reality of the lack of regulation of this matter and the necessity of having a normative reference at the level of the European Union. Second, it highlights the relationship between compensation and the fundamental rights of the detained person and therefore with the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Third, it also outlines the frequently occurring difficulty of establishing the unjust or arbitrary nature of detention, especially when it comes to the enforcement of an extradition request. Fourth, the article describes some of the problems related to determining the Member State that should assume the compensation and reflects on the appropriate compensation procedure.Read more