On 12 November 2018, four months after the Fifth Anti-Money Laundering Directive came into force, the Sixth Anti-Money Laundering Directive ("AMLD6") was published in the Official Journal of the European Union. AMLD6 is intended to complement and reinforce the Fourth AMLD by laying down minimum rules on criminal liability for money laundering. It must be implemented by the Member States in their national legislation by no later than 3 December 2020.
AMLD6 lays down, inter alia, minimum rules on criminal liability for money laundering by (i) defining the criminal offences that are to be considered as “predicate offences” regarding money laundering, (ii) laying down minimum sanctions, and (iii) extending criminal liability to legal entities.
Predicate offences regarding money laundering
The explanatory memorandum accompanying AMLD6 first states that the current criminalisation of money laundering in the Member States is not coherent enough to combat money laundering throughout the EU. This creates gaps in enforcement and obstacles for cooperation between the competent authorities in the different Member States. In order to ensure that criminalisation is sufficiently uniform in all Member States, AMLD6 lays down minimum rules for defining the criminal offences that are to be considered by Member States as predicate offences where money laundering is concerned. AMLD6 lists 22 predicate offences (defined as “criminal activities”), including terrorism, human trafficking and migrant smuggling, illegal arms dealing, and counterfeiting of products.
Member States must take measures to ensure that certain conduct (including complicity in, incitement to, and attempting to commit such conduct) is punishable as a criminal offence when it is intentional, namely:
- 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 activity to evade the legal consequences of his/her actions;
- 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;
- the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity.
Member States must ensure that the conduct referred to in (1) and (2) is also punishable as money laundering when the perpetrator themself has also committed the predicate offence. This is referred to as “self-laundering”. It includes, for example, the transfer or concealment of funds by a smuggler who has obtained them from human trafficking.
Member States must take measures to ensure that the aforementioned conduct is punishable by a maximum term of imprisonment of at least four years (previously one year). Member States must also provide for additional sanctions and measures, such as fines, temporary or permanent exclusion from access to public funding (including tender procedures, grants and concessions), temporary disqualification from the practice of commercial activities, or temporary bans on running for elected or public office.
Liability of legal entities
Finally, AMLD6 extends criminal liability to both legal entities and natural persons holding a “leading position” (representatives, decision-makers, or persons authorised to exercise control) who commit criminal offences for the benefit of the legal entity concerned. This includes situations in which a lack of supervision or control by the natural person in charge made it possible for a person under his/her authority to commit the offence. Within the framework of Dutch criminal law as it currently applies, it is already possible to hold legal persons criminally liable (pursuant to Section 51 of the Penal Code [Wetboek van Strafrecht]; see also the Drijfmest ruling of the Supreme Court).
As examples of sanctions to be imposed on legal entities, AMLD6 refers to exclusion from entitlement to public benefits or aid; temporary or permanent exclusion from access to public funding (including tender procedures, grants, and concessions); temporary or permanent disqualification from the practice of commercial activities; placing under judicial supervision; a judicial winding-up order; and temporary or permanent closure of establishments which have been used for committing the offence.