The 6th anti-money laundering directive : to which extent can EU anti-money laundering law be harmonised without harmonisation of criminal law?

Abstract

Throughout the past thirty years, the EU has developed an extensive legal regime with the purpose of countering money laundering. However, the effectiveness of the harmonisation of EU money laundering law is to be questioned. This is highlighted when considering the amount of discretion left in the hands of Member States, especially in relation to criminal matters. The reason for this is mainly that money laundering laws are harmonised through the adoption of directives establishing minimum rules. In the available literature and EU institutions’ documents on this topic, a great deal of focus is put on the risks that the system faces from criminal abuse. However, not much attention is given to the risk faced by obliged entities of being found liable for a money laundering offence as a result of lack of harmonisation of EU money laundering law. The situation in Malta, as well as in some other Member States, at the moment, is that proceeds from an activity which is illegal in Malta but legal in the jurisdiction it takes place in, would still amount to proceeds of crime and consequently, their handling, to the offence of money laundering. Therefore, this dissertation will be exploring this issue, and further analysing it by tackling a number of intricate considerations that arise because of it. Moreover, the dissertation provides a comparative analysis of other jurisdiction’s approaches to such issue, specifically highlighting to which extent EU anti-money laundering law is harmonised. In addition, the extent of harmonisation of money laundering law is better understood through the examination of the limitations in relation to the harmonisation of EU criminal law. Finally, this dissertation aims to provide recommendations both at a national and EU level as to how this lack of harmonisation leading to divergences between Member States can be dealt with in order to effectively minimise the risks discussed.