Money Laundering: Definition and Impact

The EU plays a leading role in the fight against money laundering. Critically examine and discuss the EU initiatives in this area with specific focus on the new 4th Money Laundering Directive. How has this been implemented into the UK?

Money laundering in simple terms can be understood as the process which is used by the criminals in order to disguise the original ownership and also controls the proceeds generated through criminal activities by making these proceeds look like they have been earned through a legitimate source.[1] A lot of money that is laundered through this process is used to finance the activities of terrorist. Hence, money laundering as well as financing of the terrorist activities has the ability to threaten the security as well as may negatively impact the stability and the transparency of government institutions.[2] European Union has made many rules in order to fight against money laundering as the Union believes that all the terrorist attacks that are been undertaken in the Europe since 2015 is more or less is an impact of money laundering and terrorist financing. The main target of EU is to increase transparency as the organization believes that this can help in controlling the process of money laundering.[3] The EU is trying to regulate the financial institutions as well as at the same time making the money laundering laws very stringent. Hence, it can be said that EU is taking a two way approach for fighting against money laundering as well as terrorist financing.[4] Hence, in order to make the laws more stringent and accelerate the fight against money laundering European Union has adopted the Fourth Anti-Money Laundering (AML) Directive which is considered to be the most powerful law till date that is adopted by EU in order to control money laundering.[5] In order to control money laundering from European Union the presidency as well as the European Parliament has reached on a political agreement to act towards strengthening the laws to fight against the common war that is money laundering as well as terrorist financing.[6]

Financial Action Task Force (FATF)

According to Michael Levi the three major aspects that are at risk because of money laundering namely the financial institutions, infrastructure as well as humans because of increased crime groups as well as the extent.[7] Financial Action Task Force (FATF) which was developed by the G-7 (one of the members is UK) summit held in Paris in the year 1989 makes policies in order to protect the financial institutions from the activities of money laundering as well as terrorist financing. The FATF in the year 1990 came up with Forty Recommendations that were directed towards the prevention of financial systems. In the year 2012 FATF revised the earlier 40+9 recommendations and adopted new 40 recommendations which included the new threats and typologies of money laundering and terrorist financing.[8]

Efforts of European Union to Combat Money Laundering

Money laundering as an organized crime

According to Antonio Balsamo money laundering is an organized crime. The author aims to find out about the evolution of the Sicilian Mafia and how with the help of money laundering a group of criminal activities is being undertaken in the country.  The author has concluded that the present Sicilian mafia is a result of the historical criminal evolution as well as the modern development in the field of crime that has been raised with the advent of globalization.[9] With the help of money laundering the criminals are able to finance their criminal activities, human trafficking, terrorist attacks, and sex racket are some of the examples of the criminal activities that are being sponsored through the funds of money laundering. Many new methods has been innovated by the criminals in order to undertake the process of money laundering. Hence, it is necessary that the government as well as concerned institutions expand their ambit in order to include all such people as well as activities under their control in order to get the desired results.[10] The methods used by criminals to undertake the process of money laundering can be clubbed under the following groups namely hiding the true ownership as well as the origin of the income; gaining control over the income proceeds; changing the form or the nature of the proceeds.[11] Also few authors believe that it is very important to get the correct estimate of proceeds generated through money laundering only then the laws can work properly.[12]

Market Abuse by Money Laundering

Financial Services and Markets Act 2000 (FSMA) coined the term Market Abuse and since then many changes has been adopted influenced by the Market Abuse Directive and the direct impact of this was seen on the legislation of UK.[13] GUIORA & others in their article has covered about the use as well as abuse of financial markets and how money laundering is the Achilles heel of terrorism. The Informal Value Transfer Systems (IVTS), which is also known as underground banking, is used as a means to transfer the illegal money across the globe without even being noticed a single penny. In order to make the business untraceable these IVTS agents run several legitimate businesses so that they can show their activities as mere value transferring activities.[14] Angela Veng Mei Leong have mentioned different paradigms mentioned by the author include organized crime as nationwide conspiracy; as ethnic groups; as state organized crime as well as even white collar crime; this reflects the shape, the transition that has taken place in organized crime over time.[15]

International Initiatives to Control Money Laundering

International Institutions against Money Laundering

Many international level initiatives have been taken in order to control money laundering. Organizations like United Nations Organization (UNO), International Monetary Fund (IMF), World Bank, Organization for Economic Cooperation and Development (OECD), Interpol, and many other governmental as well as non-governmental organizations have taken initiatives at national as well as international level in order to control the act of money laundering. These institutions have provided with a framework that acts as the basis for the international approach against this common issue. UN has also launched Global Programme against Money Laundering (GPML), in the year 1995. This program aims to provide technical assistance as well as conduct research against money laundering to the states that request. FATF was launched by Word Bank and IMF for combating money laundering.[16] The process of money laundering is not legal hence all the payments that are made to the agents are not legal influencing corruption. So, this is a vicious circle and hence need to be controlled in order to stop the two main bloodsucking practices of the economy. [17]

EU Anti- Money Laundering Derivatives

Since a decade efforts are being taken by European Union in order to combat money laundering and terrorist financing. The First Anti Money Laundering Directive was adopted in the year 1990 by EU. The main aim of this directive was to prevent the misuse of the financial systems of the economy for the purpose of money laundering.[18] The Second Directive was adopted in the year 2001. The adoption of this directive came with few amendments in the First Directive. The main aim of this directive was to refine the existing provisions as well as to work in a way that the gaps in the legislation of the country that is highlighted by the 40 Recommendations given by FATF, is plugged out. The third directive was adopted in the year 2006. This Directive was adopted in order to consider the revised anti money laundering and counter terrorist financing standards released by FATF. This Directive was extended to include the lawyers, accountants, real estate agents, notaries, as well as casinos and other companies that exceeded €15000 under the scope of Directive. This way the EU included the left over areas under the ambit of the Anti- Money Laundering Directives of EU.[19] The Fourth and the latest Directive of EU was adopted in the year 2015 which came into force in the year 2017. The changes that were adopted in this Directive includes certain changes made in CDD that is now if anyone is undertaking trading activities of goods in cash of value more than €10000 is under the ambit of the derivative and CDD by casinos of more than €2000 comes under the derivatives of EU. The local Politically Exposed Persons (PEPs), also now come under the scrutiny of the Derivatives which was earlier limited to only outsiders.[20] The adoption of Forth Directive was also influenced by the Panama Papers scandal which released that a large number of financial institutions were an active participant in this scandal.[21]

Market Abuse and Financial Services and Markets Act

Challenges faced by EU

EU has also faced trouble many times like at the time of adoption of the First Directives when any legislation related to money laundering had to be adopted on the basis of legality under the Treaty of EC. As the nature of money laundering was more related to a criminal law finding the legal basis for it in the EC treaty was a difficult task. Also another obstacle that was faced by EU was on the grounds of constitution which imposed limits on community laws. The solution to this was found by EU by saying that it was necessary to prevent money laundering as it was important in order to ensure the community financial system as well as the market of EU. And hence, the legal basis was formed and the EU was successful in implementing the derivatives against money laundering.[22]

Shortcomings

Through there are certain shortcomings that has been identified by the researchers. One of the shortcomings of the derivatives of EU was that the legal basis of the derivatives were not crystal clear as well as were a little messy in nature like the EU law as well as the policy making venues were slightly overlapping in nature. The terrorist lists mentioned by the EU also created more complexities. Also differences were seen in the listing as well as de listing procedures laid down by EU. So these were certain shortcomings that have been listed by researchers in order to bring into limelight about the shortfalls of the EU derivatives.[23]

Implementation in UK

After the attacks of 2001, all the major countries including USA and UK requested the globe to rethink the ways in order to fight terrorism. These major countries were of the opinion that in order to bring an end to terrorism it is important to cut the source of their finance which is largely contributed through money laundering. Because of the huge finance available with such terrorist organizations they are able to think of different ways in order to threaten human lives. [24] A lot of efforts are being taken by UK in order to combat money laundering from the country. The government of UK had adopted AML as well as asset recovery strategies in order to rebalance the criminal justice system of the country in favor of the citizens that follow the rules as well as abide themselves by the law of the country.  The country in order to rebalance this had posted legal duty on the citizens or a particular group of people in order to report the traces or suspicious activities related to money laundering taking place in UK through a channel called the balance of probabilities. This channel requires limited proofs to show to the respective authority.[25] UK was an integral and important part of European Union before the BREXIT. All the laws and regulations of EU were binding on UK and UK also was an active participant of the Anti-Money Laundering Derivatives of EU. After the BREXIT the implementation of law in UK largely depend on the relationship being shared by EU as well as UK. UK has however transposed the Fourth Anti- Money Laundering Derivative into Money Laundering Regulations 2017 (Campbell). As UK has decided to relinquish its membership from EU it is no longer obliged to apply any of the rules and laws imposed by EU in future. The direct impact of BREXIT will be seen on the markets of UK as well as EU and also on money laundering. As UK has decided to separate itself from the rest of the EU it is important for UK to come up with strict laws that will protect the market of UK and the economy in the long run.

Organized Crime and Evolution

Money laundering is like a vicious circle coming out from which is a very difficult task. EU has been trying to combat money laundering since couple of decades but has not yet achieved complete success. Though through the Forth Derivative the Union has been able to extend its ambit and include those professionals as well that was not yet included in the derivative. So, it can be said that day by day EU is strengthening their fight against money laundering which is considered as one of the most important reasons for terrorist financing in Europe. Hence, it is very important that UK comes up with more stringent laws as it is now going to make the laws and procedures on their own. It is also being speculated that UK may remain as a member of EU in the form of a single market and hence, there are chances that UK may adopt some of the regulatory rules implemented by EU (Mugarura).[26] Also the Derivatives of EU are in sync with the international standards against money laundering hence, accepting the derivatives of EU will prove fruitful to UK as it would not require UK to start from the very scratch. Money laundering is a global issue and hence, the international institutions make sure that the local laws made by individual countries are in line with the standards set by them.[27] The Regulation adopted by UK is believed to be heavily dependent on the private actors as well as has also undertaken the activity of developing bodies like Joint Money Laundering Steering Group (JMLSG) and also the Joint Money Laundering Intelligence Taskforce (JMLIT). The JMLSG majorly includes trade association that deals with the financial service industry. This has also come up guidance according to which the person who fails to report the act of money laundering will be prosecuted for this offence. The JMLIT was established by the country’s National Crime Agency in partnership with the financial sector of the country, the government as well as the British Bankers Association and the law enforcement with the motive to bring an end to the activity of money laundering. The Recommendations released by FATF in the year 2012 was reflected in the Fourth Anti Money Laundering derivative of EU and is also been reflected in the Money Laundering Regulations 2017 (MLR 2017) of UK. The MLR 2017 revolves around the main theme of risk and transparency. MLR 2017 has adopted many objectives of Fourth AML Directive as well as has come up with few changes in the regulation like the meaning of business relationship has been extended by MLR in order to include the formation of a company by the trust company whether the formation is the only transaction of that company. MLR 2017 also ensures that risk assessments are carried out on a regular basis by the State Ministries as well as departments and relevant individuals. In the very first year of the regulation the HM Treasury as well as the Home Office will undertake the activities related to risk assessment in order to mitigate the risks that are associated with money laundering. The supervisory authorities are provided with their task that they have to undertake on regular basis as well as the supervisory authority needs to maintain a written record of everything. The Regulation 18 pf MLR 2017 deals with relevant persons that is the financial institutions, credit institutions, auditors as well as the insolvency practitioners, as well as other accounting and legal professionals. Their target is to identify the risks of money laundering and terrorist financing in their own field of work. So, in short it can be said that UK in its vey first attempt has taken all the necessary and huge steps in order to combat money laundering as well as terrorist financing from the country. The regulation is very exhaustive and covers almost every sector of the business and professionals. [28]

New Methods in the Process of Money Laundering

Conclusion

So, in the end it can be concluded that money laundering is one of the major international issue. Many international institutions as well as local laws are adopting different laws and policies in order to bring an end to this heinous crime. This is so because money laundering has the ability to destroy the economies as well as it also finances many criminal and terrorist activities. And hence, it can be understood that how money laundering is a threat to security of people as well as nations. Along with the time immemorial many changes has been adopted in the typologies of money laundering as well as the criminal acts. Hence, the nation as well as the concerned institutions has also adopted changes in their policies along with time. Accordingly, EU has adopted Anti Money Laundering Derivatives in order to fight against the process of money laundering in the European Union. EU adopted its First Derivative in the year 1990 and the latest that is the Fourth Derivative in the year 2015 which came into force in the year 2017. The amendments that were adopted by EU were marked by the chronology of the Derivatives being adopted by EU and hence, in the latest Derivative EU has expanded its ambit to include the professionals as well that were not yet covered by the ambit of EU Derivatives. The latest derivative aims to achieve more transparency as well as integrity in the working of the Union. After BREXIT UK has also transposed the Fourth Derivative in the country as Money Laundering Regulation Act, 2017. Hence, it can be said that since a few couple of decades EU is trying to control money laundering and the latest derivative is being looked upon as the light in the end of the tunnel by EU with the ray of hope that EU is going to win the fight against money laundering.

References

Abdullahi Y. Shehu, ‘International Initiatives against Corruption and Money Laundering: An Overview’ (2005) 12 Journal of Financial Crime

ACAMS, ‘EU Fourth Anti-Money Laundering AML Resources | ACAMS’ (Acams.org, 2018) <https://www.acams.org/aml-resources/eu-fourth-aml-directive> accessed 7 May 2018

Amos N. Guiorabrian J. Field, ‘Using and Abusing the Financial Markets: Money Laundering As the Achilles’ Heel of Terrorism’ (2014) 29 University of Pennsylvania Journal of International Law

Andrew Hynes, ‘Market Abuse: An Analysis of Its Nature and Regulation’ [2007] Company Lawyer

Angela Veng Mei Leong, ‘Definitional Analysis: The War on Terror and Organized Crime’ (2018) 8 Journal of Money Laundering Control

Shortcomings of EU Derivatives in Controlling Money Laundering

Anti-Money Laundering Forum, ‘IBA Anti-Money Laundering Forum – Europe’ (Anti-moneylaundering.org, 2018) <https://www.anti-moneylaundering.org/Europe.aspx> accessed 7 May 2018

Antonio Balsamo, ‘Organised Crime Today: The Evolution of the Sicilian Mafia’ (2006) 9 Journal of Money Laundering Control

David Chaikin, ‘Commercial Corruption and Money Laundering: A Preliminary Analysis’ (2008) 15 Journal of Financial Crime

Dexiang Mei, Yanyan YeZengan Gao, ‘Literature Review of International Anti-Money Laundering Research: A Scientometrical Perspective’ (2014) 2 Open Journal of Social Sciences

European Banking Authority, ‘Anti-Money Laundering and Countering the Financing of Terrorism’ (Eba.europa.eu, 2018) <https://www.eba.europa.eu/regulation-and-policy/anti-money-laundering-and-e-money> accessed 7 May 2018

European Commission, ‘Anti-Money Laundering and Counter Terrorist Financing’ (European Commission – European Commission, 2018) <https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/criminal-justice/financial-crime_en> accessed 7 May 2018

European Commission, ‘Money Laundering – Migration and Home Affairs – European Commission’ (Migration and Home Affairs – European Commission, 2018) <https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/money-laundering_en> accessed 7 May 2018

European Council, ‘Fight against Money Laundering and Terrorist Financing – Consilium’ (Consilium.europa.eu, 2018) <https://www.consilium.europa.eu/en/policies/fight-against-terrorism/fight-against-terrorist-financing> accessed 7 May 2018

European Council, ‘Money Laundering and Terrorist Financing: Presidency and Parliament Reach Agreement – Consilium’ (Consilium.europa.eu, 2018) <https://www.consilium.europa.eu/en/press/press-releases/2017/12/20/money-laundering-and-terrorist-financing-presidency-and-parliament-reach-agreement/> accessed 7 May 2018

Friedrich Schneider, ‘Money Laundering and Financial Means of Organized Crime: Some Preliminary Empirical Findings’ (Defensesociale.org, 2010) <https://www.defensesociale.org/xvicongreso/usb%20congreso/2%C2%AA%20Jornada/01.%20Panel%206/10_P6_Schneider.Friederich_MoneyLaundering&FinancialMeans.pdf> accessed 7 May 2018

Government Europa, ‘EU Welcomes Directive On Money-Laundering and Terrorist Financing’ (Government Europa, 2018) <https://www.governmenteuropa.eu/eu-directive-money-laundering-and-terrorist-financing/86681> accessed 7 May 2018

Jamaliah Said and others, ‘Money Laundering Prevention Measures among Commercial Banks in Malaysia’ (2013) 4 International Journal of Business and Social Science

International Compliance Association, ‘What Is Money Laundering?’ (Int-comp.org, 2018) <https://www.int-comp.org/careers/a-career-in-aml/what-is-money-laundering> accessed 7 May 2018

Liz Campbell, ‘Dirty Cash (Money Talks): 4AMLD And The Money Laundering Regulations 2017.”‘ [2018] Criminal Law Review

Michael Levi, ‘Money Laundering and Its Regulation’ (2002) 582 The Annals of the American Academy of Political and Social Science

Norman Mugarura, ‘The Implications Of Brexit For UK Anti-Money Laundering Regulations Will The Fourth AML Directive Be Implemented Or Be Binned?’’ (2018) 21 Journal of Money Laundering Control

Oldrich Bures, ‘‘EU’s Fight against Terrorist Finances: Internal Shortcomings And Unsuitable External Models’ (2010) 22 Terrorism and Political Violence

Peter Alan Sproat, ‘An Evaluation of the UK’S Anti-Money Laundering.’’ (2007) 47 Crime Law Soc Change

E. Bell, ‘The Confiscation, Forfeiture and Disruption of Terrorist Finances’ (2003) 7 Journal Money Laundering Control

Sergio Ferragut, ‘Organized Crime, Illicit Drugs and Money Laundering: The United States and Mexico’ (Chathamhouse.org, 2012) <https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Security/1112pp_ferragut.pdf> accessed 7 May 2018

Stevan Aleksoski, ‘Money Laundering as a Type of Organized Crime’ (2015) 3 Journal of Process Management – New Technologies, International

AML and Asset Recovery Strategies in UK

Valsamis Mitsilegas Bill Gilmore, ‘The EU Legislative Framework against Money the EU Legislative Framework against Money’ (2008) 56 International and Comparative Law Quarterly

Vinci Works, ‘4Th Money Laundering Directive – What You Need to Know – Vinciworks Blog’ (VinciWorks Blog, 2017) <https://vinciworks.com/blog/4th-money-laundering-directive-what-you-need-to-know> accessed 7 May 201

International Compliance Association, ‘What Is Money Laundering?’ (Int-comp.org, 2018) <https://www.int-comp.org/careers/a-career-in-aml/what-is-money-laundering> accessed 7 May 2018.

Science.

European Council, ‘Fight against Money Laundering and Terrorist Financing – Consilium’ (Consilium.europa.eu, 2018) <https://www.consilium.europa.eu/en/policies/fight-against-terrorism/fight-against-terrorist-financing> accessed 7 May 2018.

European Commission, ‘Money Laundering – Migration and Home Affairs – European Commission’ (Migration and Home Affairs – European Commission, 2018) <https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/money-laundering_en> accessed 7 May 2018.

ACAMS, ‘EU Fourth Anti-Money Laundering AML Resources | ACAMS’ (Acams.org, 2018) <https://www.acams.org/aml-resources/eu-fourth-aml-directive> accessed 7 May 2018.

European Council, ‘Money Laundering and Terrorist Financing: Presidency and Parliament Reach Agreement – Consilium’ (Consilium.europa.eu, 2018) <https://www.consilium.europa.eu/en/press/press-releases/2017/12/20/money-laundering-and-terrorist-financing-presidency-and-parliament-reach-agreement/> accessed 7 May 2018.

Michael Levi, ‘Money Laundering and Its Regulation’ (2002) 582 The Annals of the American Academy of Political and Social Science.

Dexiang Mei, Yanyan Ye and Zengan Gao, ‘Literature Review of International Anti-Money Laundering Research: A Scientometrical Perspective’ (2014) 2 Open Journal of Social Sciences.

Antonio Balsamo, ‘Organised Crime Today: The Evolution Of The Sicilian Mafia’ (2006) 9 Journal of Money Laundering Control.

Sergio Ferragut, ‘Organized Crime, Illicit Drugs and Money Laundering: The United States and Mexico’ (Chathamhouse.org, 2012) <https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Security/1112pp_ferragut.pdf> accessed 7 May 2018.

Stevan Aleksoski, ‘Money Laundering as a Type of Organized Crime’ (2015) 3 Journal of Process Management – New Technologies, International.

Friedrich Schneider, ‘Money Laundering and Financial Means of Organized Crime: Some Preliminary Empirical Findings’ (Defensesociale.org, 2010) P6_Schneider.Friederich_MoneyLaundering&FinancialMeans.pdf> accessed 7 May 2018.

Andrew Hynes, ‘Market Abuse: An Analysis of Its Nature and Regulation’ [2007] Company Lawyer.

Amos N. Guiora and Brian J. Field, ‘Using And Abusing The Financial Markets: Money Laundering As The Achilles’ Heel Of Terrorism’ (2014) 29 University of Pennsylvania Journal of International Law.

Angela Veng Mei Leong, ‘Definitional Analysis: The War On Terror And Organized Crime’ (2018) 8 Journal Of Money Laundering Control.

Abdullahi Y. Shehu, ‘International Initiatives against Corruption and Money Laundering: An Overview’ (2005) 12 Journal of Financial Crime.

David Chaikin, ‘Commercial Corruption and Money Laundering: A Preliminary Analysis’ (2008) 15 Journal of Financial Crime.

European Commission, ‘Anti-Money Laundering And Counter Terrorist Financing’ (European Commission – European Commission, 2018) <https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/criminal-justice/financial-crime_en> accessed 7 May 2018.

Anti-Money Laundering Forum, ‘IBA Anti-Money Laundering Forum – Europe’ (Anti-moneylaundering.org, 2018) <https://www.anti-moneylaundering.org/Europe.aspx> accessed 7 May 2018.

Vinci Works, ‘4Th Money Laundering Directive – What You Need to Know – Vinciworks Blog’ (VinciWorks Blog, 2017) <https://vinciworks.com/blog/4th-money-laundering-directive-what-you-need-to-know> accessed 7 May 2018.

Government Europa, ‘EU Welcomes Directive On Money-Laundering and Terrorist Financing’ (Government Europa, 2018) <https://www.governmenteuropa.eu/eu-directive-money-laundering-and-terrorist-financing/86681> accessed 7 May 2018.

Valsamis Mitsilegas and Bill Gilmore, ‘The EU Legislative Framework against Money the Eu Legislative Framework against Money’ (2008) 56 International and Comparative Law Quarterly.

Oldrich Bures, ‘‘EU’s Fight Against Terrorist Finances: Internal Shortcomings And Unsuitable External Models’ (2010) 22 Terrorism and Political Violence.

R. E. Bell, ‘The Confiscation, Forfeiture And Disruption Of Terrorist Finances’ (2003) 7 Journal Money Laundering Control.

Peter Alan Sproat, ‘An Evaluation Of The UK’S Anti-Money Laundering.’’ (2007) 47 Crime Law Soc Change

Norman Mugarura, ‘The Implications Of Brexit For UK Anti-Money Laundering Regulations Will The Fourth AML Directive Be Implemented Or Be Binned?’’ (2018) 21 Journal of Money Laundering Control.

European Banking Authority, ‘Anti-Money Laundering And Countering The Financing Of Terrorism’ (Eba.europa.eu, 2018) <https://www.eba.europa.eu/regulation-and-policy/anti-money-laundering-and-e-money> accessed 7 May 2018.

Liz Campbell, ‘Dirty Cash (Money Talks): 4AMLD And The Money Laundering Regulations 2017.”‘ [2018] Criminal Law Review.