Tout savoir sur la 6ème directive anti-blanchiment

The European Union’s Sixth Anti-Money Laundering Directive (6AMLD) comes into force for member states on December 3, 2020 and must be implemented by financial institutions by June 3, 2021. After the 5th Directive , which significantly strengthened existing AML/CFT provisions, the Sixth Anti-Money Laundering Directive aims to empower financial institutions and authorities to do more in the fight against money laundering and terrorist financing by broadening the scope of existing legislation, clarifying certain regulatory details and toughening up criminal penalties across the Union.

With the implementation date looming on the horizon, now is the time for banks, financial institutions and other required entities to ensure they are familiar with the details of 6AMLD and prepare their teams to AML compliance to the changes it will introduce.

With this in mind, what are the strengths of 6AMLD?

Harmonization

The 6th AML Directive harmonizes the definition of money laundering across the EU with the aim of eliminating gaps in the national legislation of Member States. In more detail, in response to changing crime methodologies and legislative priorities, the 6th Directive provides a harmonized list of the 22 predicate offenses that constitute money laundering, including certain tax offences, environmental crime and cybercrime. The inclusion of cybercrime as a predicate offense is significant as it is the first time it has featured in this context in an EU Money Laundering Directive.

When the harmonized list of predicate offenses comes into force, businesses in Member States will need to ensure that their AML/CFT programs can cope with the resulting new risk environment. This means that businesses may need to train or retrain their employees and adapt their AML programs to ensure they can detect suspicious activity related to predicate offences.

An expanded regulatory scope

6AMLD expands the number of offenses that fall within the definition of money laundering . When the directive enters into force, « complicity » will also constitute money laundering and will be subject to the same criminal penalties. Prior to 6AMLD, EU money laundering regulations were only intended to punish those who directly profited from the act of laundering, but under the new rules, « facilitators » will also be legally culpable.

Concretely, « complicity » means that anyone who assists money launderers will themselves commit the crime of money laundering: this expanded scope also includes anyone caught in the act of inciting money laundering or attempting money laundering . As with the harmonized list of predicate offences, as part of their fight against money laundering, companies must now ensure that their compliance programs are in place to detect and prevent complicity in money laundering.

Extension of criminal liability

Under current rules, only individuals can be punished for the act of money laundering; however, 6AMLD will extend criminal liability to allow for the punishment of legal persons, such as corporations or partnerships. The new rules mean that a legal entity will be found guilty of the crime of money laundering if it is found that it did not prevent a « directing mind » of the company from carrying out the illegal activity. Concretely, the new rules will place responsibility for AML/CFT on management employees as well as employees acting separately.

The extension of criminal liability in this context is intended to hold large corporations accountable in the global effort to combat money laundering. This measure will allow financial authorities to better target organizations that do not effectively implement the fight against money laundering and the financing of terrorism. Sanctions for legal persons can range from a temporary ban on operations or judicial review to permanent closure.

Tougher penalties

6AMLD introduces a minimum prison sentence of four years for money laundering offenses (the previous minimum sentence was one year). Under the new rules, judges also have the power to fine individuals and exclude entities from accessing public funding.

The increase in prison sentences for money laundering and the potential financial repercussions are part of the EU’s effort to make AML/CFT regulation more consistent across all Member States and reflect the commitment of the European Parliament in favor of stricter enforcement of money laundering rules. Many EU member states already apply penalties for money laundering that exceed the minimum prison terms required by 6AMLD.

Cooperation between Member States

The crime of money laundering may involve dual criminality, i.e. the principle that a crime can be committed in one jurisdiction before its financial proceeds are laundered in another. 6AMLD addresses the issue of dual criminality by introducing specific information sharing requirements between jurisdictions so that criminal prosecution for related offenses can take place in more than one EU Member State.

In practice, the dual criminality provisions of 6AMLD require EU member states to criminalize certain predicate offenses whether or not they are illegal in that jurisdiction. These principal offenses are terrorism, drug trafficking, human trafficking, sexual exploitation, racketeering and corruption. As part of this process, Member States involved in a prosecution will work together to centralize legal proceedings within a single jurisdiction. 6AMLD defines a series of factors that authorities must take into accountto decide how and where to prosecute, including the country of origin of the victim, the nationality (or residence) of the offender and the jurisdiction in which the offense took place.

Preparing for the 6AMLD

Over the next implementation period, affected businesses should seek to understand the adjusted regulatory scope that 6AMLD will bring, including the new primary offenses that need to be monitored and the new risk environment in which they will operate. In addition to managing their AML resources and training their compliance staff, companies will need to review their technology deployment to ensure they have the capacity to meet their new transaction monitoring and screening obligations .

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