Proposal for a Directive of the European Parliament and of the Council on countering money laundering by criminal law [First reading] - Follow-up to the third political trilogue - Main contents

Document date	20-04-2018
Publication date	21-04-2018
Reference	7938/18
From	Presidency
External link	original article
Original document in PDF

Council of the European Union Brussels, 20 April 2018

PUBLIC

(OR. en)

7938/18 Interinstitutional File:

2016/0414 (COD) i LIMITE

JAI 312 DROIPEN 51 COPEN 101 CT 50 CODEC 587

NOTE

From: Presidency

To: Delegations

No. prev. doc.: 7471/18

No. Cion doc.: 15782/16

Subject: Proposal for a Directive of the European Parliament and of the Council on countering money laundering by criminal law [First reading]

• - 

  Follow-up to the third political trilogue

The third political trilogue with the European Parliament (EP) on 12 April 2018 was also held in a constructive spirit, with the representatives of both legislators striving to find solutions that were acceptable to all. The EP noted that it was ready to agree to most of the compromise proposals presented by the Council, with a view to striking a balanced compromise agreement on the whole text within the next month(s).

The discussions therefore focused on the few outstanding issues, which can be outlined as follows (the text in Annex to this note highlights all the amendments proposed in relation to the general approach in bold underlined or bold strikethrough):

• 1. 

  Article 3

  Following the concerns expressed by some Member States concerning the insertion of the words 'or use of the property' in paragraph 1(c), the Presidency proposes to again consider the Council's position to the EP proposal (in brackets in the text in Annex).

  The EP agrees to drop its request that the provision on negligence should be made compulsory and accepts the compromise proposal of the Council under paragraph 1a, but has instead asked for a stronger wording of recital 9 in line with the wishes expressed in its report. Member States are invited to agree to the new text of recital 9 as set out in the text below.

• 2. 

  Article 5(3)

  The exact wording of the recital previously set out in a footnote to Article 5(3) remains under discussion. The Presidency invites Member States to agree on the new text of the latter part of recital 11 (see also point 5 in this note, where a partially identical wording is discussed).

• 3. 

  Article 6

  The EP strongly insists on the inclusion of additional points in the binding paragraph 1, and the assessment of the Presidency is that it would be advantageous for the Council to meet this request to some extent. In view of the fact that a suggested wording of Article 6(1)(b) was discussed and rejected by delegations at the last meeting of the Friends of Presidency, the Presidency would now propose that delegations consider a modified new wording of that provision. Member States are invited to consider if the reformulated version of Article 6(1)(b), as set out in Annex, could be accepted.

  Furthermore, the EP has again insisted on the inclusion of politically exposed persons and virtual currencies as factors that could be considered as aggravating in relation to money laundering offences. The Presidency invites Member States to agree on the new paragraph on virtual currencies included in recital 5a, which does not deal with aggravating circumstances as such but allows for the matter to be mentioned in the text. The Presidency does not propose to referring to politically exposed persons in any way.

• 4. 

  Article 8(1a)

  The EP continues to insist that the notion of "public tender procedures" in recital 11 and in Article 8(1a) is too narrow, and that it should be widened to include other contracts with public authorities (see also point 2 in this note). The text proposed by the EP was rejected by delegations in the last meeting of the Friends of Presidency; the Presidency therefore invites Member States to agree to the new compromise wording, which includes grant and concession agreements (see the text in Annex).

• 5. 

  Article 8a

  A stronger provision on confiscation was originally one of the main requests by the EP, but in the light of the explanations provided by the Presidency, EP has recently stated that it could in fact accept the wording of Article 8a as part of a global compromise on the text. However, it has at the same time insisted that the wording of recital 11b should be strengthened with a view to reflect its main wishes regarding confiscation. Member States are invited to consider the revised text of recital 11b, drafted by the Commission and reflecting the joint statement of the EP and the Council (Council document 16861/13), which aims at reaching a compromise with the EP.

• 6. 

  Article 9

  The EP has reiterated its request that the issue of possible negative conflicts of jurisdiction should be addressed in Article 9, but has expressed flexibility as regards how this could be done. The Presidency invites delegations to agree to the addition of the words 'in particular to ensure that all offences covered by this Directive are prosecuted' at the end of the new recital proposed in footnote 23 in the text attached.

• 7. 

  Article 10

  The EP accepts that the issues of its requests in relation to Article 10 are addressed in the new recital 6a, but has requested that the first sentence be reformulated in line with the text used in the Terrorism Directive. The Presidency invites delegations to agree on the new text of recital 6a.

  ANNEX

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on countering money laundering by criminal law

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure,

Whereas:

• (1) 

  Money laundering and the related 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 problems and also to complement and reinforce the application of Directive 2015/849 i/EU 1 , this Directive aims to tackle money laundering by means of criminal law, allowing for more efficient and swifterbetter cross-border cooperation between competent authorities.

1 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 i of the European Parliament and the Council, and repealing Directive 2005/60/EC i of the European Parliament and of the Council and Commission Directive 2006/70/EC i (OJ L 141, 5.6.2015, p.73).

• (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.

• (3) 

  Union action should continue to take particular account of the Financial Action Task Force (FATF) Recommendations and instruments of other international organisations and 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 the requirements of that Convention into its legal order.

• (4) 

  Council Framework Decision 2001/500/JHA 2 lays down requirements on the criminalisation of money laundering. That Framework Decision is not comprehensive enough, however, and the current incrimination of money laundering is not sufficiently coherent to effectively

  combat money laundering across the Union, thus leading to enforcement gaps and obstacles in the cooperation between the competent authorities in different Member States.

2 Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182, 5.7.2001).

• (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. Moreover, to the extent that the application of these penalty thresholds does not already do so, Member States should include a range of offences within each of the categories designated by this Directive. In this case, Member States may decide how to delimit the range of offences within the respective categories. Where categories of offences, such as terrorism or environmental crimes, include offences set out in Union law, this Directive refers to such legislation. Member States should however , consistent with the delimitation mentioned above, consider any offence set out in this EU legislation as predicate offence. The expression “any offence” does not necessarily require that all offences defined in the existing EU instruments should be considered predicate offences. (…). Any kind of punishable involvement in the commission of a predicate offence, as criminalised in accordance with national law is also to 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.

(5a) Modern means of payment and payment services, such as virtual currencies, imply new risks and challenges from the perspective of fighting money laundering. Member States should ensure that these risks are addressed appropriately.

• (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 no harmonisation of the definitions of tax crimes in Member States' national law is sought.

(6a) Member States should, in criminal proceedings regarding money laundering, provide each other with the widest possible support, and ensure the information is exchanged in an effective and timely manner in accordance with national law and the existing

Union legal framework. Differences between national law definitions of predicate offences should not inhibit international cooperation in criminal proceedings regarding money laundering. Cooperation with third countries should be intensified, in particular by encouraging and supporting the establishment of effective measures and mechanisms to counter money laundering and the ensuring better international cooperation in this field.

• (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 2017/1371/EU 3 . This is without prejudice to the possibility for Member States to transpose the two directives through a single comprehensive framework at national level. In accordance with Article 325(2)TFEU, the Member States are toshall 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.

• (8) 

  Member States should ensure that certain types of money laundering activities are also punishable when committed by the perpetrator of the criminal activity that generated that property (self-laundering). Where, in such cases, the money laundering activity does not simply amount to the mere possession or use, but also involves the transfer, conversion, concealing or disguise of property and results in further damage than that already caused by the predicate offence, for instance by bringing the property derived from criminal activity into circulation and, by doing so, concealing its unlawful origin, that activity should be punishable.

3 Directive 2017/1371/EU of the European Parliament and of the Council of 5 July 2017 on the protection of the Union's financial interests by means of criminal law (OJ L 198, 28.07.2017, p. 29).

• (9) 

  In order for the countering of money laundering by criminal law measures to be effective, a conviction should be possible without it being necessary to establish precisely which

  predicate offence generated the property, let alone require a prior or simultaneous conviction

  for that crime, while taking into account all relevant circumstances and evidence that

  the property derives from activities of a criminal nature. Member States may, in line

  with their national legal system ensure this through other means than legislation.

  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, subject to the

  conditions set out in this Directive.

• (10) 

  This Directive aims to criminalise money laundering when committed intentionally and with the knowledge that the property has been derived from criminal activity. In this context it

  does not make a difference whether the property has been derived directly or indirectly from such activity, in line with the broad definition of "proceeds", as laid down in Directive 2014/42 i/EU. In each case, when considering whether the property is derived from criminal activity and whether the person knew this, the specific circumstance of the case should be taken into account, such as that the value of the property is disproportionate to the lawful income of the accused person and that criminal activities and acquisition of property occurred within the same time frame. 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, provide that money laundering committed recklessly or by serious negligence constitutes a criminal offence.

• (11) 

  In order to deter money laundering throughout the Union, Member States should ensure that this conduct is punishable by a maximum term of imprisonment of at least four years. This

  obligation is without prejudice to the individualisation and application of penalties and execution of sentences in accordance with the concrete circumstances in each individual case. Member States should also provide for additional sanctions or measures, such as fines, temporary or permanent exclusion from public tender procedures, grants and concessions, temporary disqualifications from the practice of commercial activities or subject to the basic concepts of the legal systems of Member States, a ban on running for elected or public office.

(11a) Member States should ensure that the judge or the court can take the aggravating circumstances as defined in this Directive into account when sentencing offenders, although there is no obligation to increase the sentence. It remains within the discretion of the judge or the court to determine whether to apply the specific aggravating circumstance, taking into account all the facts of the particular case. Member States are not obliged to provide for an aggravating circumstance, where national law provides for the criminal offences as defined in Framework Decision 2008/841/JHA to be punishable as a separate criminal offence and this may lead to more severe sanctions.

(11b) The freezing and confiscation of the instrumentalities and proceeds of crime counter the financial incentives which drive crime. Directive 2014/42 i/EU provides minimum rules on the freezing and confiscation of the instrumentalities and proceeds of crime in criminal matters. Pursuant to Article 13 of Directive 2014/42 i/EU, the Commission will submit by 4 October 2019 a report to the European Parliament and to the Council on the implementation of this Directive, accompanied if necessary by adequate proposals. Member States should, as a minimum, ensure the freezing and confiscation of the instrumentalities and proceeds of crime in all cases foreseen in Directive 2014/42 i/EU. Member States should also strongly consider enabling confiscation at least in all cases where criminal proceedings cannot be initiated or concluded, in particular in cases where the offender has died. As requested by the European Parliament and the Council, the Commission will submit a report analysing the feasibility and possible benefits of introducing further common rules on the confiscation of property deriving from activities of a criminal nature, also in the absence of a conviction of a specific person or persons for these activities. Such analysis will take into account the differences between the legal traditions and the systems of the Member States.

• (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.

(12a) To ensure the success of investigations and the prosecution of money laundering offences, those responsible for investigating or prosecuting such offences should have the possibility to make use of effective investigative tools such as those which are used in combating

organised crime or other serious crimes. It should thereby be ensured that sufficient personnel and targeted training, resources and up-to-date technological capacity is at hand. The use of such tools, in accordance with national law, should be targeted and take into account the principle of proportionality and the nature and seriousness of the offences under investigation and should respect the right to the protection of personal data.

• (13) 

  This Directive should replace certain provisions of Framework Decision 2001/500/JHA 4 for the Member States bound by this Directive.

(13a) This Directive respects the principles recognised by Article 2 TEU, respects fundamental rights and freedoms and observes the principles recognised, in particular, by the Charter, including those set out in Titles II, III, V and VI thereof which encompass, inter alia, the right to respect for private and family life and the right to protection of personal data, the principles of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence, as well as the rights of suspects and accused persons to have access to a lawyer, the right not to incriminate oneself and the right to a free trial. This Directive has to be implemented in accordance with those rights and principles taking also into account the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other human rights obligations under international law.

4 Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182, 5.7.2001).

• (14) 

  Since the objective of this Directive cannot be sufficiently achieved by Member States but can rather, by reason of the scale and effects of this Directive, 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.

• (15) 

  In accordance with Articles 1 and 2 of Protocol (No 21) on the position of the United

  Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom and Ireland are not taking part in the adoption and application of this Directive and are not bound by it or subject to its application 5 .

• (16) 

  In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark annexed to the Treaty on the European Union and to the Treaty on the Functioning of the European

  Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. Framework Decision 2001/500/JHA 6 shall continue to be binding upon and applicable to Denmark,

5 Recital 15 reflects the position of UK and IE on this Directive after the expiry of the notification period under Protocol (No21).

6 Idem.

HAVE ADOPTED THIS DIRECTIVE:

Article 1 Subject matter and scope

• 1. 

  This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of money laundering.

• 2. 

  This Directive shall 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 2017/1371/EU 7 .

  Article 2 Definitions

For the purposes of this Directive, the following definitions apply:

• (1) 

  "criminal activity" means any kind of criminal involvement in the commission of all offences, (…), which in accordance with national legislation 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. In any case, [a range of] Member States shall take the necessary measures to ensure that a range of offences within the categories listed hereunder are shall be considered a criminal activity for the purposes of this Directive:

  (a) participation in an organised criminal group and racketeering, including any offence set out in Council Framework Decision 2008/841/JHA;

  (b) terrorism, including any offence set out in Directive 2017/XX/EU 8 ;

7 DE has a reservation on this provision.

8 Directive 2017/541/EU of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA on

combating terrorism (OJ L 88, 31.03.2017, p. 6).

(c) trafficking in human beings and migrant smuggling, including any offence set out in Directive 2011/36 i/EU 9 and Council Framework Decision 2002/946/JHA 10 ;

(d) sexual exploitation, including any offence set out in Directive 2011/93 i/EU 11 ;

(e) illicit trafficking in narcotic drugs and psychotropic substances, including any

offence set out in Council Framework Decision 2004/757/JHA 12 ;

(f) illicit arms trafficking;

(g) illicit trafficking in stolen goods and other goods;

(h) corruption, including any offence set out in the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union 13 and in Council Framework

Decision 2003/568/JHA 14 ;

9 Directive 2011/36 i/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and

replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.04.2011, p. 1). 10 Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of

the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, p. 1).

11 Directive 2011/93 i/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 335 L, 17.12.2011, p. 1).

12 Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ L 335 11.11.2004, p. 8).

13 Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union.

14 Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector (OJ L 192, 31.7.20004, p. 54).

(i) fraud, including any offence set out in Council Framework Decision 2001/413/JHA 15 ;

(j) counterfeiting of currency, including any offence set out in Directive 2014/62 i/EU 16 ;

(k) counterfeiting and piracy of products;

(l) environmental crime, including any offence set out of Directive 2008/99/EC i 17 or in Directive 2009/123/EC i 18 ;

(m) murder, grievous bodily injury;

(n) kidnapping, illegal restraint and hostage-taking;

(o) robbery or theft;

(p) smuggling (…);

(pa) tax crimes relating to direct taxes and indirect taxes, as defined in the national law of the Member States;

15 Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of noncash means of payment (OJ 149 L 2.6.2001, p. 1).

16 Directive 2014/62 i/EU of the European Parliament and of the Council of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law, and

replacing Council Framework Decision 2000/383/JHA (OJ L 151, 21.5.2014, p. 1). 17 Directive 2008/99/EC i of the European Parliament and of the Council of 19 November 2008

on the protection of the environment through criminal law (OJ L 328 6.12.2008, p. 28). 18 Directive 2009/123/EC i of the European Parliament and of the Council of 21 October 2009

amending Directive 2005/35/EC i on ship-source pollution and on the introduction of penalties for infringements (OJ 280 L 27.10.2009, p. 52).

(q) extortion;

(r) forgery;

(s) piracy;

(t) insider trading and market manipulation, including any offence set out in Directive 2014/57 i/EU 19 ;

(u) cybercrime, including any offence set out in Directive 2013/40 i/EU 20 ;

(v) (…)

• (2) 

  "property" means assets of any kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments in any form including electronic or digital, evidencing title to or an interest in such assets;

• (3) 

  "legal person" means any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international

  organisations.

  Article 3 Money laundering offences

• 1. 

  Member States shall take the necessary measures to ensure that the following conduct shall be a punishable criminal offence, when committed intentionally:

  • a) 

    the conversion or transfer of property, knowing that such property is derived from criminal 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;

19 Directive 2014/57 i/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (OJ L 173, 12.6.2014, p. 179).

20 Directive 2013/40 i/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework

Decision 2005/222/JHA (OJ L 218, 14.8.2013, p. 8).

• 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 (…);

• c) 

  the acquisition, possession or use of property, knowing at the time of receipt [or use of the property], that such property was derived from criminal activity,

1a. Member States may take the necessary measures to ensure that the conduct referred to in paragraph 1 shall be punishable as a criminal offence, when the offender suspected or ought to have known that the property was derived from criminal activity.

• 2. 

  Member States shall take the necessary measures to ensure that:

  (a) a prior or simultaneous conviction for the criminal activity from which the property was derived, is not a prerequisite for a conviction for the offences, referred to in paragraph 1 or 1a;

  (b) a conviction for the offences, referred to in paragraph 1 or 1a is possible where it is established that the property has been derived from a criminal activity, referred to in Article 2 (1), without it being necessary to establish all the factual elements or all

  circumstances relating to such activity, including the identity of the perpetrator;

  (c) the offences referred to in paragraph 1 or 1a extend to property derived from conduct that occurred in the territory of another Member State or in that of a third country, when the relevant conduct would constitute a criminal activity had it occurred domestically. Member States may further require that the relevant conduct constitutes a criminal

  offence under the national law of the other Member State or that of the third country where the offences was committed, except where the relevant conduct constitutes one of the offences referred to in points (a) to (f) and (h) of Article 2(1).

• 3. 

  Member States shall take the necessary measures to ensure that the conduct, referred to in points (a) and (b) of paragraph 1 shall be a punishable criminal offence when committed by persons who committed or were involved in the criminal activity from which the property was derived.

  Article 4 Incitement, aiding and abetting, and attempt

Member States shall take the necessary measures to ensure that inciting, aiding and abetting and attempting an offence referred to in Article 3(1) shall be punishable.

Article 5 Penalties for natural persons

• 1. 

  Member States shall take the necessary measures to ensure that the conduct referred to in

  Article 3 and 4 shall be punishable by effective, proportionate and dissuasive criminal penalties.

• 2. 

  Member States shall take the necessary measures to ensure that the conduct referred to in

Article 3(1) shall be punishable by a maximum term of imprisonment of at least four years.

• 3. 

  Member States shall also take the necessary measures to ensure that natural persons who are responsible for the offences referred to in Articles 3(1) and 4 are subject to additional sanctions or measures.

  Article 6 Aggravating circumstances

• 1. 

  Member States shall take the necessary measures to ensure that it shall be regarded as an aggravating circumstance, in relation to the conduct referred to in Articles 3 and 4, when:

  • a) 

    the offence was committed within the framework of a criminal organisation within the meaning of Framework Decision 2008/841 21 , or

  • b) 

    the offenderhas 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 i/EU and has committed the offence in the exercise of their professional activities.

• 2. 

  Member States may provide that the following circumstances shall be regarded as aggravating circumstances, in relation to the conduct referred to in Articles 3 and 4:

  • a) 

    when the property or money being laundered is of considerable value, or b) when the property laundered derives from one of the crimes referred to in points (a) to (f) and (h) of point 1 of Article 2.

this may be regarded as an aggravating circumstance, as referred to in paragraph 1.

21 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, (OJ L 300, 11.11.2008, p. 42).

Article 7 Liability of legal persons

• 1. 

  Member States shall take the necessary measures to ensure that legal persons can be held liable for any of the conduct referred to in Articles 3 and 4 committed for their benefit 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 one of the following:

  (a) a power of representation of the legal person;

  (b) an authority to take decisions on behalf of the legal person; or

  (c) an authority to exercise control within the legal person.

• 2. 

  Member States shall also take the necessary measures to ensure that legal persons can 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 conduct referred to in

Articles 3 and 4 for the benefit of that legal person by a person under its authority.

• 3. 

  Liability of legal persons under paragraphs 1 and 2 of this Article shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in, any of the conduct referred to in Articles 3 and 4.

  Article 8 Sanctions for legal persons

Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 7 is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions, such as:

• (2) 

  exclusion (…) from entitlement to public benefits or aid

(1a) temporary or permanent exclusion from public tender procedures, grants and concessions;

• (3) 

  temporary or permanent disqualification (…) from the practice of commercial

activities;

• (4) 

  placing (…) under judicial supervision;

• (5) 

  a judicial winding-up order; (6) temporary or permanent closure of establishments which have been used for committing the offence

  Article 8a Confiscation

Member States shall take the necessary measures to ensure, as appropriate, that their competent authorities freeze or confiscate in accordance with Directive 2014/42 i/EU 22 , the proceeds derived from and instrumentalities used or intended to be used in the commission or contribution to the commission of the offences referred to in Articles 3 and 4 in this Directive.

22 Directive 2014/42 i/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127, 29.4.2014, p. 39–50)

Article 9 Jurisdiction

• 1. 

  Each Member State shall take the necessary measures to establish its jurisdiction over the conduct referred to in Articles 3 and 4 where:

  (a) the offence is committed in whole or in part in its territory;

  (b) the offender is one of its nationals.

• 2. 

  A Member State shall inform the Commission where it decides to establish further jurisdiction over the conduct referred to in Articles 3 and 4 committed outside its territory where:

  (a) the offender is a habitual resident in its territory;

(b) the offence is committed for the benefit of a legal person established in its territory.

2a. Where an offence referred to in Articles 3 and 4 falls within the jurisdiction of more than one Member State and where 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.

Account shall be taken of the following factors:

(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.

The matter shall, where appropriate and in line with Article 12 of Framework Decision

2009/984, be referred to Eurojust. 23

Article 10 Investigative tools

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 conduct referred to in Articles 3 and 4.

Article 11 Replacement of certain provisions of Framework Decision 2001/500/JHA

• 1. 

  This Directive replaces point (b) of Article 1 and Article 2 of Framework Decision

  2001/500/JHA in respect of the Member States bound by this Directive, without prejudice to the obligations of those Member States relating to the date for transposition of that Framework Decision into national law.

• 2. 

  For the Member States bound by this Directive, references to Framework

  Decision 2001/500/JHA shall be construed as references to this Directive.

23 The text in the last paragraph of the Article remains to be agreed by the Council

Working Party. The following text, inspired by recital 12a in the general approach on the non-cash fraud Directive of March 2018, could be added to the recitals: 'Recalling the obligations under Framework Decision 2009/948 and Decision 2002/187 i, competent authorities should use in cases of conflicts of jurisdiction the possibility to conduct direct consultations with the assistance of Eurojust, in particular to ensure that all offences covered by this Directive are prosecuted.' Article 12 Transposition

• 1. 

  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [24 months after adoption] at the latest. They shall immediately communicate the text of those provisions to the Commission.

  When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

• 2. 

  Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 13

Reporting

The Commission shall, by [24 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.

The Commission shall also , by [36 months after the deadline for implementation of this

Directive], submit a report to the European Parliament and to the Council assessing the added value of this Directive in countering money laundering as well as its impact on fundamental rights and freedoms. On the basis of that report, the Commission shall, if necessary, present a legislative proposal to amend this Directive. The Commission shall take into account the information provided by Member States.

Article 14 Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 15 Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Brussels,

For the European Parliament For the Council

The President The President