Abstract
This part describes the genesis of the money-laundering offence and the subsequent developments. An historical look at how the legislative process has developed from the beginning to the present day is taken. The aim is not only to describe events anecdotally, but to comment on the developments as well. Given that the offence was introduced in the German Penal Code in fulfilment of international duties, the book traces firstly the international law-making process. The chapter specifically sheds light on which motives triggered the introduction of the offence as a transnational crime. Among European Member States, it has been mostly the European Directives that have further triggered the development of anti-money-laundering laws. Therefore, the book focuses on the European legal framework, and on the motives that drove European policymakers to adopt the current laws. The emphasis will be on the ever-new functions that lawmakers, at both the international and national level, have ascribed to the anti-money laundering regime, in order to reveal its ultimate latent or symbolic functions. In fact, the aim of this study is to investigate whether intents, other than those expressed officially, have driven the creation and the consequent development of the money-laundering offence.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
The offence is not considered as one of the core crimes under international criminal law that are listed in the enabling statute of international criminal courts. Yet, it is regarded as a serious crime by the African Union for the jurisdiction of the African Court of Justice and Human and People’s Rights. See African Union 2014, Article 28 A(1) 9 (International jurisdiction of the court).
- 2.
The money laundering offence, in the threefold definition that has remained in force so far, was conceived in the Vienna Convention of 1988 under Article 3(1) b i and ii and c. Although this instrument does not use the term ‘money laundering’, the conducts described have been defined as money laundering in the following UNCAC of 2000 and in the Palermo Convention of 2003. See United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature on 20 December 1988, 1582 UNTS 95 (entered into force 11 November 1990) [hereinafter Vienna Convention]; United Nations Convention Against Transnational Organized Crime, opened for signature on 15 November 2000, 2225 UNTS 209 (entered into force 19 September 2003) [hereinafter Palermo Convention], and United Nations Convention against Corruption, opened for signature on 9 December 2003, 2349 UNTS 41 (entered into force 14 December 2005) [hereinafter UNCAC].
- 3.
See FATF 1990.
- 4.
Italian law decreto legge 591/1978, which, under Article 3, introduced Article 648 bis of the Italian criminal code; despite the conduct not being labelled money laundering, the law criminalised acts of laundering proceeds of crime.
- 5.
Levi and Reuter 2006, p. 305.
- 6.
FATF 2005, p. 27.
- 7.
The law ‘Financial Record-keeping and Reporting of Currency and Foreign Transactions Act’—known as Bank Secrecy Act—sets regulations requiring various reports and record-keeping of financial institutions and individuals United States Code, Title 31, Subtitle IV, Chapter 53, Subchapter II (alias 31 U.S.C. 5311 et seq.).
- 8.
Arzt 1997, p. 37.
- 9.
US Public Law, an act to strengthen Federal efforts to encourage foreign cooperation in eradicating illicit drug crops and in halting international drug traffic, to improve enforcement of Federal drug laws and enhance interdiction of illicit drug shipments, to provide strong Federal leadership in establishing effective drug abuse prevention and education programs, to expand Federal support for drug abuse treatment and rehabilitation efforts, and for other purposes; pp. 99–570.
- 10.
Pieth 2004, p. 8.
- 11.
Ibid.
- 12.
Pieth 1993, p. 101.
- 13.
- 14.
Pieth 2004, p. 7.
- 15.
BCBS 1988, para I.
- 16.
Ibid.
- 17.
Ibid. para 6.
- 18.
In fact, only western countries were represented in this preliminary phase of the anti-money laundering policy-making process. But the expansion of the anti-money laundering system would be justified afterwards in view of the harm money laundering caused to developing economies. See Alldridge 2008, pp. 446 ss.
- 19.
For a complete overview on the war on drugs, see Duke and Gross 1993.
- 20.
Commentary on the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1998 [hereinafter Commentary on the Vienna Convention].
- 21.
The main purpose of the first two treaties was to codify internationally applicable control measures in order to ensure the availability of narcotic drugs and psychotropic substances for medical and scientific purposes, and to prevent their diversion into illicit channels. The Convention on Psychotropic Substances of 1971 established an international control system for psychotropic substances. See http://ec.europa.eu/world/agreements/prepareCraeteTreatiesWorkspace/treatiesGeneralData.do?redirect=true&treatyld=526 Last accessed on 16 October 2012.
- 22.
See UN Resolution A/RES/40/121 that recalled the Quito Declaration against Traffic in Narcotic Drugs of 11 August 1984, and the New York Declaration against Drug Trafficking and the Illicit Use of Drugs of l October 1984 in which drug trafficking was considered a crime against humanity.
- 23.
Council of Europe 1990b, p. 1.
- 24.
Levi and Reuter 2006, p. 296.
- 25.
This issue will represent an important point of criticism in the opinion of some interviewees. See Chap. 7.
- 26.
Commentary on the Vienna Convention, above n. 20, p. 10.
- 27.
Article 3(1) b of the Vienna Convention, above n. 2.
- 28.
Article 3(1) c of the Vienna Convention, above n. 2.
- 29.
Palermo Convention, above n. 2, para iii.
- 30.
Commentary on the Vienna Convention, p. 48, above n. 20.
- 31.
Stessens 2000, p. 86. The ‘follow the money’ strategy and the rationale linked to the confiscation of criminal assets that justified anti-money laundering law as a tool to fight organised crime have been criticised. First, following the money might not always bring investigators to the criminals, since cash that is further invested in criminal markets is not subject to anti-money laundering checks, because it remains out of the reach of anti-money laundering control. In addition, the confiscation of assets, due to its strong potential, should not only be attached to money laundering cases. In fact, Alldridge argues that once there is enough evidence to prove the serious predicate offence, states could impose a duty to proceed with assets forfeiture to the main offence, without needing the money laundering conviction. Alldridge 2008, p. 450. Yet, confiscation of assets is, according to Italian scholars and practitioners, together with the subsequent assignment of such assets to the State which then devotes them to social purposes, has a particularly symbolic effect in territories where organised criminal groups exercise territorial control. Such a system gives credibility to the state that can re-establish public power over private illegal control. A good-practice example is the work of the Italian association, Libera Terra, which manage several confiscated properties and farms and produce organic products in a sustainable and socially responsible way. Yet such a system is not perfect: issues rise, especially with regard to confiscated firms, which, after being seized, run a high risk of going bankrupt and thus cause unemployment. Such firms, indeed, could compete on the market, thanks to the illicit managing and the illicit funding. Furthermore, financial institutions, customers and commissioners may not want to prolong their relations with the new managed company, which, therefore, is economically isolated in an often already socially adverse context. Solutions are being currently discussed in relation to the possibility of placing side by side the judicial administrator to the entrepreneur already during the seizure phase; allocating part of the confiscated sums to the reintegration in the market of such firms; training judicial administrators with entrepreneurship skills. The European Economic and Social Committee awarded the association with a prize for civil society in 2009. The EU Directive 2014/42/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 introduced the social reuse of confiscated property under Article 10. OJ, L 127, 29/04/2014.
- 32.
In the Preamble the drafters expressed their concern with the ‘magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society’. See Preamble of the Vienna Convention, above n. 2. According to the Commentary on the Vienna Convention, many threats were recognised as being linked to illegal drug traffic besides the health and well-being of individuals, such as the spreading of corruption, criminal conspiracy and the subversion of public order, threats for sovereignty and security, disruption of the economy and the society. See Commentary on the Vienna Convention above n. 20. In addition to social and health concerns, the Preamble highlighted the ‘links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States’. See the Preamble of the Vienna Convention, above n. 2.
- 33.
Commentary on the Vienna Convention, p. 18, above n. 20.
- 34.
IMF 2001.
- 35.
Commentary on the Vienna Convention, p. 65, above n. 20.
- 36.
Stessens 2000, pp. 4, 85.
- 37.
In support of this philosophy, a study conducted between 2000 and 2007 on 107 countries about the most effective policies to counteract organised crime, showed that criminal groups react to higher expected punishments by re-assigning resources to expanding the scope and scale of violence and of corruption to higher levels of the public sectors in order to protect themselves from prosecution. As a result, when the expected punishment increases, but financial assets remain relatively untouched, there is a parallel paradoxical growth of organised crime, too. ‘This constitutes the paradox of criminal sanctions where more frequent and stiffer punishments applied to physical persons lead to higher levels of organized crime and to higher levels of corruption’. See Buscaglia 2008, pp. 2, 11.
- 38.
Nadelmann 1986, pp. 33–34.
- 39.
The FATF is an ‘inter-governmental body that develops and promotes policies to protect the global financial system against money laundering […]’. Currently the FATF consists of 36 member countries, eight associate members, the so-called FATF-Styled Regional Bodies, and 26 observers. The FATF is housed within the Organisation for Economic Cooperation and Development (OECD), in Paris. The group had in the beginning an ‘ad hoc’ mandate that has been extended to the point that the FATF is currently a permanent body with a much broader competence.
- 40.
FATF 1990. The FATF standards are a broad framework for preventing and combating money laundering. These standards lay down the criteria for criminalising particular types of conduct as conduct falling within the meaning of money laundering. In addition, they provide a framework that governments can implement to recover the proceeds of money laundering offences (assets recovery), and they set out how countries can go about preventing the misuse of financial institutions and non-financial designated businesses and professions (e.g. law firms) for money laundering purposes. The standards are made up of the Recommendations themselves as well as the Interpretive Notes to each Recommendation and the applicable definitions in the Glossary.
- 41.
Pieth 2004, p. 9.
- 42.
Pieth 2004, p. 8.
- 43.
The Recommendations are a source of soft law, which means that governments are not legally bound to implement these measures. Yet, given the fact that soft law can be very influential, to the point that it can be very forceful, just like hard law, the FATF wields tremendous political binding power. In fact, the implementation of the Recommendations is rigorously assessed through Mutual Evaluation processes, and through the assessments conducted by the International Monetary Fund (IMF) and the World Bank (WB). In this regard, it is important to bear in mind that, when assessing compliance with FATF standards, ‘the word should has the same meaning as must’. The FATF’s persuasiveness stems from the fact that it has the enormous ability to influence whether or not a country can be seen as a viable business partner or an investment destination. The FATF, thanks to its informal structure and procedures and to its flexible mandate, manages to impose compliance with the ever-updated standards in an easier way that a UN treaty-based organisation, bound to formal decision-making procedures and to a legal mandate, could do.
- 44.
FATF 1990.
- 45.
The expression is used by Pieth. See Pieth 2004, p. 12.
- 46.
The idea of expanding the definition of money laundering beyond its traditional link with proceeds of drug-related criminality was not a complete novelty. In fact, some national laws did not link the offence of money laundering to drug-trafficking, as the case Article 305 of the Swiss penal code enacted in 1990, which considers any crime as a possible predicate crime for money laundering. Gilmore 1992, p. XV.
- 47.
Commentary on the Vienna Convention, above n. 20.
- 48.
- 49.
Pieth 2004, p. 4.
- 50.
Committee of Ministers of the European Community 1980.
- 51.
Nilsson 1991, p. 423.
- 52.
See the Preamble of the Council of Europe ‘Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime’, CETS 141, (1990a) [hereinafter Strasbourg Convention].
- 53.
- 54.
Council of the European Communities (1990) Decision of 22 October 1990 concerning the conclusion, on behalf of the EEC, of the UN Vienna Convention. OJ L 326, 24.11.1990, pp. 56–57.
- 55.
In particular the first three Directives (91/308/EEC; 2001/97/EC; 2005/60/EC) are categorised under the following subjects: Internal Market; free movement of capital and approximation of laws and are put under the Directories Taxation and Prevention of Tax Avoidance and Tax Evasion (09.50.00.00), and the Directory Economic and monetary policy and free movement of capital (10.40.00.00).
- 56.
Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ L 166, 28/06/1991, pp. 0077–0083.
- 57.
BR-Drucks 288/1/90, p. 2.
- 58.
Mitsilegas 2014, p. 155.
- 59.
Preamble, Directive 91/308/EEC, above n. 56.
- 60.
Ibid.
- 61.
Mitsilegas 2003, p. 63.
- 62.
Preamble, Directive 91/308/EEC, above n. 56.
- 63.
Ibid.
- 64.
Directive 91/308/EEC, above 56. In addition, the wording of the title stressed the need to protect the integrity of the financial system: ‘Council Directive on prevention of the use of the financial system for the purpose of money laundering’.
- 65.
Debate of the European Parliament, 3/7/2000 and 4/4/2001.
- 66.
Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, OJ L 344, 28.12.2001, pp. 76–82.
- 67.
See the Preface of Directive 2001/97/EC (7) above n. 67.
- 68.
Mitsilegas 2003, p. 96.
- 69.
Article 6(3) of the Directive 2001/97/EC, above n. 67.
- 70.
Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, OJ L 309, 25.11.2005, pp. 15–36.
- 71.
OJ L 141, 5.6.2015, pp. 73–117.
- 72.
Proposal for a Directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (2013/0025/COD).
- 73.
A critical overview on the novelties introduced by the Commission Proposal can be found in Unger et al. 2014, pp. 43–44.
- 74.
Opinion of the European Central Bank of 17 May 2013 on a proposal for a directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and on a proposal for a regulation on information accompanying transfers of funds. OJ C 166, 12.6.2013, pp. 2–5.
- 75.
Consolidated version of the Treaty on the Functioning of the European Union [hereinafter TFEU], OJ C 326, 26.10.2012, pp. 47–390.
- 76.
OJ C 166, 12.6.2013, p. 4.
- 77.
OJ C 166, 12.6.2013, p. 5.
- 78.
Executive summary of the Opinion of the European Data Protection Supervisor on a proposal for a Directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, and a proposal for a Regulation of the European Parliament and of the Council on information on the payer accompanying transfers of funds, OJ C 32, 4.2.2014, pp. 9–12.
- 79.
Opinion of the European Data Protection Supervisor, 2013, p. 23.
- 80.
Opinion of the European Economic and Social Committee on the ‘Proposal for a regulation of the European Parliament and of the Council on information accompanying transfers of funds’ COM (2013) 44 final—2013/0024 (COD) and on the ‘Proposal for a directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing’, OJ C 271, 19.9.2013, pp. 31–35.
- 81.
OJ C 271, 19.9.2013, p. 34.
- 82.
The legislative resolution on the amended text was passed by 643 votes to 30 with 12 abstentions; see European Parliament 2014a.
- 83.
European Parliament 2014b.
- 84.
Ward 2014, p. 3.
- 85.
European Parliament legislative resolution of 11 March 2014 on the proposal for a directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (COM (2013) 0045).
- 86.
Ibid. Recital 1.
- 87.
Ibid. Recital 2.
- 88.
Directive EU/2015/849 above n. 71.
- 89.
Council 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, OJ L 141, 5.6.2015, pp. 73–117.
- 90.
Directive EU/2015/849 above n. 71.
- 91.
Article 5 of the TFEU, above n. 75, states: ‘1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies. Specific provisions shall apply to those Member States whose currency is the euro. 2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies. 3. The Union may take initiatives to ensure coordination of Member States’ social policies’. OJ C 326, 26.10.2012, pp. 47–390.
- 92.
Directive EU/2015/849 above n. 71.
- 93.
European Commission (2016b) Communication from the Commission to the European Parliament and the council on an Action Plan for strengthening the fight against terrorist financing. COM (2016) 50/2.
- 94.
European Commission (2016c) Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC. 2016/0208 (COD).
- 95.
European Commission (2016d) Working Document Impact Assessment accompanying the document Proposal for a Directive of the European Parliament and the Council. http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016SC0223&from=EN. Last accessed on 22 December 2016.
- 96.
The EU list of high-risk countries, complementing the Fourth Anti-Money Laundering Directive, was adopted on 14 July 2016. See European Commission (2016a).
- 97.
European Commission (2016c), above n. 95.
- 98.
Council of the European Union (2016) Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC. COM (2016) 450 final.
- 99.
Ibid.
- 100.
Ibid.
- 101.
Committee on Development for the Committee on Economic and Monetary Affairs and the Committee on Civil Liberties, Justice and Home Affairs (2016) Opinion on the proposal for a directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC (COM (2016)0450—C8-0265/2016—2016/0208(COD)).
- 102.
See for instance Ibid.
- 103.
Mitsilegas 2003, p. 87.
- 104.
Paragraph 26(e) of the European Council Action Plan on Organised Crime, OJ C 251, 15/08/1997, pp. 0001–0016.
- 105.
Paragraph 6(g) OJ C 251, 15/08/1997, pp. 1–18.
- 106.
Paragraph 26 OJ C 251, 15/08/199, pp. 1–18.
- 107.
Foreword, iii of the Palermo Convention, above n. 2.
- 108.
Mitsilegas 2014, p. 157.
- 109.
UN General Assembly 2001.
- 110.
Article 2(e) of the Palermo Convention, above n. 2; and Article 2(e) UNCAC, above n. 2.
- 111.
Article 2 of the Palermo Convention, above n. 2.
- 112.
Council of the European Union (2004) Decision of 29 April 2004 on the conclusion, on the behalf of the European Community, of the United Nations Convention against Transnational Organised Crime (2004), Annex II Declaration of competence in accordance to Article 36(3) of the Convention. 2004/579/EC. OJ L 261, 6.8.2004, pp. 69–115.
- 113.
See FATF 2001.
- 114.
Directive 2005/60/EC above n. 71, Foreword (3).
- 115.
European Parliament 2001, p. 7.
- 116.
Council of Europe ‘Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime and on the Financing of Terrorism’ CETS 198 (2005) [hereinafter Warsaw Convention].
- 117.
Article 23 of UNCAC, above n. 2.
- 118.
- 119.
Article 51 of UNCAC, above n. 2.
- 120.
Council of Europe (1999) Criminal law Convention on Corruption (ETS No. 173).
- 121.
See FATF 2013.
- 122.
FATF 2011, p. 9.
- 123.
There are some practical hindrances that need to be highlighted with regard to making tax evasion a predicate offence to money laundering: If the suspected offence is committed abroad, it must be a criminal offence in that country too, and this imposes on domestic prosecution services the burden of collecting information on foreign laws regulating tax matters. In addition, tax authorities might discover the tax evasion only after some years, and this might undermine the system of reporting of suspicious transactions by financial institutions, if they cannot access information about the lawfulness of the transaction under tax law. Compelling disclosure on fiscal management, on the face of it, may seem a breach of the individual’s right to privacy and of the confidentiality principle. In addition, if even the proceeds of crime are considered subject to taxation, there is the danger that law enforcement will treat proceeds of drug trafficking, for example, as tax evasion, and choose to charge drug dealers with money laundering, just by proving the undeclared income. See Alldridge 2001, p. 35. The underlying claim seems to be that tax evasion liability can serve as a useful fall back for authorities who are unable to acquire sufficient evidence to secure a conviction for the main crime, as in the famous case of Al Capone, who was finally convicted for tax evasion by American authorities, because of their incapability of bringing charges of organised criminal activities against him.
- 124.
Council of Europe 2005, p. 9.
- 125.
Alldridge 2001, p. 350. For the analogies between tax evaders and money launderers, See Christensen 2013, p. 35 ss. See Sharman 2011, p. 99 regards critically the FATF’s approach to regulating offshore centres; also Alldridge disapproves of the approach of classifying both money laundering and tax evasion as offshore. See Alldridge 2008, p. 447.
- 126.
Blum et al. 1988, p. 51.
- 127.
The link with tax matters was often used as a ground to refuse co-operation and information disclosure for purposes of anti-money laundering.
- 128.
OECD 2012.
- 129.
Ibid.
- 130.
G7 1999, p. 6.
- 131.
See IMF 2016.
- 132.
Alldridge 2001, p. 350.
- 133.
See the Preface of Directive 2005/60/EC above n. 70.
- 134.
European Commission, Proposal for a Directive of the European Parliament and of the Council Amending Directive (EU) 2015/849 above n. 89, and amending Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent, 2016/0208 (COD).
- 135.
- 136.
IMF 2016.
- 137.
Ibid.
- 138.
Aas 2013, p. 131. This mechanism, which has been defined as the doctrine of ‘manifest destiny’ is used by the US to protect its own interests, while using the rhetoric of a common war against an enemy threatening the whole world. Without using physical influence, as in the case of military invasion, the US has exercised its imperialistic strategy by taking advantage of its economic supremacy and by using the weapon of financial coercion. See also Andreas 2015, p. 49; and Bosworth-Davies 2006, p. 347.
- 139.
Nadelmann 1993, p. 469.
- 140.
Bosworth-Davies 2006, p. 349; and Naylor 2002. ‘Drugs, like terrorism today, obtained the position of a suitable enemy. By stressing the necessity of a global effort to prevent the danger of the drug issue, the US has imposed ‘global governance’ built around the framework established by the UN and other international initiatives. See also Aas 2013, pp. 130–131. On an even more critical note, the crime-control policy model of the ‘war on drugs’ has been interpreted as an example of the ‘blurred line between crime control and warfare, both in discursive and practical terms’. Aas 2013, p. 130. A known example is the American ‘Plan Colombia’, a US military intervention launched in the 90s of the last century in South-American, with the official goal of contrasting drug cartels, which was actually directed at controlling economically, politically and military an area rich of natural resources. Becucci and Massari 2003, p. 63.
- 141.
See Mitsilegas 2014, p. 174.
- 142.
Alldridge 2008, p. 443; Bosworth-Davies 2006, p. 358; Levi and Reuter 2006, p. 304; and Pieth 2004, pp. 8, 9. More specifically, from the definition of the social problem to the shaping of the policies and of the methods of monitoring compliance and punishing non-compliance the FATF owes a lot to the US. See Machado 2012, p. 361.
- 143.
- 144.
- 145.
Mitsilegas 2014, p. 198.
- 146.
- 147.
Williams and Savona 1996, p. 129.
- 148.
The quote is taken from Bosworth-Davies. See Bosworth-Davies 2006, p. 349.
- 149.
- 150.
Alldridge 2008, p. 438.
- 151.
Alldridge 2008, p. 437.
- 152.
At a European level, for example, the First Directive requiring a certain level of harmonisation in the context of confiscation of criminal assets was adopted only in 2014. Directive 2014/42/UE above n. 31.
- 153.
Pieth 2004, p. 34.
- 154.
Ibid.
- 155.
Pieth 2004, p. 35.
- 156.
Transparency International 2015.
- 157.
Christensen 2011, p. 186.
- 158.
Global Financial Integrity 2008, p. 12.
- 159.
Eva Joly, French magistrate famous for her crusade against corruption, advocated for a shift of the corruption discourse to phase two, in which the role of bankers, lawyers and offshore financial centres in enabling corrupt practices comes under far sharper scrutiny. See Christensen 2011, p. 193.
- 160.
Levi and Reuter, for example, consider the regulatory provisions, which impose public control over the financial sector, as exceptional within the context of de-regulation. See Levi and Reuter 2006, p. 309.
- 161.
Gilmore 1992, p. xvi.
- 162.
Directive EU/2015/849, above n. 71.
References
Aas K F (2013) Globalization and Crime. Sage Publications, London.
African Union (2014) Protocol on amendments to the Protocol on the Statute of the African Court of Justice and Human Rights of June 2014. http://www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf. Last accessed on 11 September 2016.
Alldridge P (2001) Are Tax Offences Predicate Offences for Money-Laundering Offences? Journal of Money Laundering Control 4 (4): 350–359.
Alldridge P (2008) Money Laundering and Globalization. Journal of Law and Society 35 (4): 437–463.
Andreas P (2015) Illicit Globalisation Myths and Misconceptions. In: Mitsilegas V et al. (eds) Globalisation, Criminal Law and Criminal Justice: Theoretical, Comparative and Transnational Perspectives. Hart, Oxford.
Arzt G (1997) Das mißglückte Strafgesetz. Am Beispiel der Geldwäschegesetzgebung. In: Diedrichsen U, Dreier R (eds) Das missglückte Gesetz, 8. Symposium der Kommission “Die Funktion des Gesetzes in Geschichte und Gegenwart”. Wandenhoeck & Ruprecht, Göttingen, pp. 17–38.
Arzt G et al. (eds) (2015) Strafrecht Besonderer Teil 3. Gieseking Verlag, Bielefeld.
BCBS (1988) Prevention of criminal use of the banking system for the purpose of money-laundering. http://www.bis.org/publ/bcbsc137.pdf. Last accessed on 11 September 2016.
Becucci S, Massari M (2003) Globalizzazione e criminalità. Laterza, Bari.
Blum J A et al. (1988) Financial Havens, Banking Secrecy and Money-laundering. UNODC Global Programme against Money Laundering. http://amnet.org.il/joomla/attachments/UN-FINANCIAL20HAVENS64%20laundering.pdf. Last accessed on 16 September 2016.
Bosworth-Davies R (2006) Money laundering: towards an alternative interpretation. Journal of Money Laundering Control 9 (4): 346–364.
Buscaglia E (2008) The Paradox of Expected Punishment: Legal and Economic Factors Determining Success and Failure in the Fight against Organized Crime. Review of Law & Economics 3: 1–25.
Calvanese E, Bianchetti R (2003) Messaggi mediatici, funzioni della pena e senso di sicurezza dei cittadini. Sociologia del diritto 3: 99–138.
Chene M (2011) The potential of UNCAC to combat illicit financial flows. U4 Expert Answers 17. http://www.u4.no/publications/the-potential-ofuncac-to-combat-illicit-financial-flows-2/. Last accessed on 16 September 2016.
Christensen J (2007) The long and winding road: tackling capital flight and tax evasion. http://www.tni.org/sites/www.tni.org/archives/crimedocs/christensen.pdf. Last accessed on 16 September 2016.
Christensen J (2011) The looting continues: tax evasion and corruption. Critical Perspectives on International Business 7 (2): 177–196.
Christensen J (2013) ‘What Do a Tax Evader and a Money Launderer have in Common? The Role of Secrecy in the Financial Sector’. In: Heinrich-Böll-Stiftung, Schönenberg R (eds) Transnational Organized Crime. Analyses of a Global Challenge to Democracy Transcript Verlag, Berlin, pp. 35–39.
Committee of Ministers of the European Community (1980) Recommendation No. R (80) 10 of the Committee of Ministers to Member States on measures against the transfer and the safekeeping of funds of criminal origin. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804f6231. Last accessed on 16 September 2016.
Committee on Development for the Committee on Economic and Monetary Affairs and the Committee on Civil Liberties, Justice and Home Affairs (2016) Opinion on the proposal for a directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC (COM(2016)0450 – C8-0265/2016 – 2016/0208(COD)). http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-594.116%2b02%2bDOC%2bPDF%2bV0%2f%2fEN. Last accessed on 22 December 2016.
Council of Europe (1990b) Explanatory Report to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016800cb5de. Last accessed on 16 September 2016.
Council of Europe (2005) Organised Crime Situation Report. http://www.coe.int/t/dghl/cooperation/economiccrime/organisedcrime/Report2005E.pdf. Council of the European Union. Last accessed on 16 September 2016.
Council of the European Union (2016) Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC. COM(2016) 450 final. http://data.consilium.europa.eu/doc/document/ST-15605-2016-INIT/en/pdf. Last accessed on 22 December 2016.
Duke S B, Gross A C (1993) America’s longest war: Rethinking our tragic crusade against drugs. Tarcher, Putnam, New York.
Dionyssopoulou A (1999) Der Tatbestand der Geldwäsche: eine Analyse der dogmatischen Grundlagen des § 261 StGB. Frankfurter kriminalwissenschaftliche Studien 66. Lang, Frankfurt am Main.
European Commission (2016a) Annex to the Commission delegated regulation supplementing Directive (EU) 2015/849 by identifying high-risk third countries with strategic deficiencies. Brussels. C(2016) 4180 final. https://ec.europa.eu/transparency/regdoc/rep/3/2016/EN/3-2016-4180-EN-F1-1-ANNEX-1.PDF. Last accessed on 16 September 2016.
European Commission (2016b) Communication from the Commission to the European Parliament and the council on an Action Plan for strengthening the fight against terrorist financing. COM(2016) 50/2. http://ec.europa.eu/justice/criminal/files/com_2016_50_en.pdf. Last accessed on 22 December 2016.
European Commission (2016c) Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending Directive 2009/101/EC. 2016/0208 (COD).
European Commission (2016d) Working Document Impact Assessment accompanying the document Proposal for a Directive of the European Parliament and the Council. http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016SC0223&from=EN. Last accessed on 22 December 2016.
European Parliament (2001) Report on the Joint Text approved by the Conciliation Committee for a European Parliament and Council Directive amending Council Directive 91/308/EEC of 10 June 1991 in prevention of the use of the financial system for the purpose of money laundering A5 0380/2001. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A5-2001-0380+0+DOC+PDF+V0//EN. Last accessed on 13 September 2015.
European Parliament (2014a) Parliament toughens up anti-money laundering rules, Press release - Justice and home affairs/ Economic and monetary affairs. http://www.europarl.europa.eu/news/en/news-room/content/20140307ipr38110/html/Parliament-toughens-up-anti-money-laundering-rules. Last accessed on 13 September 2015.
European Parliament (2014b) Money laundering: MEPs vote to end anonymity of owners of companies and trusts. Press release - Economic and monetary affairs. http://www.europarl.europa.eu/news/en/news-room/content/20140210IPR35562/html/Money-laundering-MEPs-vote-to-end-anonymity-of-owners-of-companies-and-trusts. Last accessed on 13 September 2015.
FATF (1990) The Forty Recommendations of the Financial Action Task Force on Money Laundering. http://www.fatf-gafi.org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%201990.pdf. Last accessed on 16 September 2016.
FATF (1991) Report 1990–1991. http://www.fatf-gafi.org/media/fatf/documents/reports/1990%201991%20ENG.pdf. Last accessed on 27 September 2015.
FATF (2001) IX Special Recommendations on terrorist financing, 2001. http://www.fatf-gafi.org/media/fatf/documents/reports/FATF%20Standards%20-%20IX%20Special%20Recommendations%20and%20IN%20rc.pdf. Last accessed on 27 September 2015.
FATF (2005) Mutual Evaluation Report of Australia. http://www.fatfgafi.org/media/fatf/documents/reports/mer/MER%20Australia%20full.pdf. Last accessed on 16 September 2016.
FATF (2011) Laundering the proceeds of corruption. http://www.fatf-gafi.org/media/fatf/documents/reports/Laundering%20the%20Proceeds%20of%20Corruption.pdf. Last accessed on 27 September 2015.
FATF (2013) The use of the FATF Recommendations to combat corruption. http://www.fatf-gafi.org/media/fatf/documents/recommendations/BPP-Use-of-FATF-Recs-Corruption.pdf. Last accessed on 16 September 2016.
Gilmore W C (1992) International efforts to combat money laundering. Grotius Publications, Cambridge.
Global Financial Integrity (2008) Illicit financial flows from developing countries: 2002–2006. www.gfintegrity.org/storage/gfip/executive%20-%20final%20version%201-5-09.pdf. Last accessed on 16 September 2016.
G7 (1999) Statement of G7 Finance Ministers and Central Bank Governors. http://www.g8.utoronto.ca/finance/fm992509state.htm. Last accessed on 16 September 2016.
IMF (2001) Financial System Abuse, Financial Crime and Money Laundering-Background Paper. https://www.imf.org/external/np/ml/2001/eng/021201.htm. Last accessed on 16 September 2016.
IMF (2016) Factsheet The IMF and the Fight against Money Laundering and the Financing of Terrorism. http://www.imf.org/external/np/exr/facts/aml.htm. Last accessed on 16 September 2016.
Levi M and Reuter P (2006) Money Laundering. Crime and Justice 34 (1): 289–375.
Machado M (2012) Similar in their differences: Transnational legal process addressing money laundering in Brazil and Argentina. Law & Social Inquiry 37 (2): 330–366.
Mitsilegas V (2003) Money Laundering Counter-measures in the European Union: A new paradigm of security governance versus fundamental legal principles. Kluwer Law International, The Hague.
Mitsilegas V (2014) The European Union and the Global Governance of Crime. In: Mitsilegas V et al. (eds) Globalisation, Criminal Law and Criminal Justice: Theoretical, Comparative and Transnational Perspectives. Hart, London, pp. 153–198.
Moccia S (1995) Impiego di Capitali illeciti e riciclaggio: la risposta del sistema penale italiano. Rivista italiana di diritto e procedura penale: 728–739.
Nadelmann E A (1986) Latinoamérica: Economía Política Del Comercio De Cocaína. Texto y Contexto. Sept-Dic 9: 27–49.
Nadelmann E A (1993) Cops Across Borders: The Internationalization of U.S. Criminal Law Enforcement. Pennsylvania State University Press, Park.
Naylor T (2002) Wages of Crime. Black Markets, Illegal Finance, And The Underworld Economy. Cornell University Press, Ithaca.
Nilsson H G (1991) The Council of Europe Laundering Convention: A Recent Example of Developing International Criminal Law. Criminal Law Forum 2 (3): 419–441.
OECD (2012) Tax and crime. www.oecd.org/ctp/taxcrimes. Last accessed on 16 September 2016.
Pieth M (1993) “Symbolische Gesetzgebung” gegen Geldwäscherei und organisiertes Verbrechen? Vortrag am 17. Deutschen Strafverteidigertag, Münster, 7. - 9.5.1993. In: Strafverteidigervereinigungen, Organisationsbüro der Strafverteidigervereinigungen (ed) Rechtsstaatliche Antworten auf neue Kriminalitätsformen. Der Andere Buchladen, Cologne, pp. 99–106.
Pieth M (2004) International standards against money laundering. In: Pieth M, Aiolfi G (eds) A Comparative Guide to Anti-Money Laundering: A Critical Analysis of Systems in Singapore, Switzerland, the UK and the USA. Edward Elgar, Cheltenham, pp 3–61.
Sharman J C (2011) The money laundry: Regulating criminal finance in the global economy. Cornell University Press, New York.
Stessens G (2000) Money Laundering: A New International Law Enforcement Model. University Press, Cambridge.
Tanzi V (1997) Macroeconomic Implications of Money Laundering. In: Savona E U (ed) Responding to Money Laundering, International Perspectives. Harwood Academic Publisher, Malaysia.
Transparency International (2015) Corruption Perception Index. http://www.transparency.org/cpi2015. Last accessed on 16 September 2016.
UN General Assembly (2001) Resolution United Nations Convention against Transnational Organized Crime A/RES/55/25. https://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf. Last accessed on 16 September 2016.
Unger B, Addink H, Walker J, Ferwerda J, van den Broek M, Deleanu I (2013) ECOLEF final report. http://www2.econ.uu.nl/users/unger/ecolef_files/Final%20ECOLEF%20report%20(digital%20version).pdf. Last accessed on 16 September 2016.
Unger B, Ferwerda J, van den Broek M, Deleanu I (2014) The Economic And Legal Effectiveness Of The European Union’s Anti-Money Laundering Policy. Edward Elgar Publishing Limited, Cheltenham.
Ward A (2014) Why we might not benefit from naming beneficial owners. Compliance Monitor 6 (3): 1–10.
Williams P, Savona E (1996) The United Nations and transnational organized crime. Frank Cass, London.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2017 T.M.C. Asser Press and the author
About this chapter
Cite this chapter
Zoppei, V. (2017). The International Law-Making Process. In: Anti-money Laundering Law: Socio-legal Perspectives on the Effectiveness of German Practices. International Criminal Justice Series, vol 12. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-180-7_3
Download citation
DOI: https://doi.org/10.1007/978-94-6265-180-7_3
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-179-1
Online ISBN: 978-94-6265-180-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)