Updated: May 9, 2012 (Initial publication: April 11, 2012)
Breaking news
The European Commission reports on the application of the directive protecting the financial market against laundering activities
http://www.thejournalofregulation.com/spip.php?article1421
The European Commission published on April 11, 2012, a follow-up and summary report of on the application of the third directive "Anti-Money Laundering " which gives a community value to on international standards adopted by the Financial Action Task Force (FATF). This is to protect the financial system against the money laundering. The report assesses the effectiveness of the application of the directive and points out the need for change. The Commission requests that the standards for the detection of risk of money laundering are better targeted and oriented in the gambling sector. It also suggests that tax offences be regarded as offences of money laundering. As individuals, the report requires to banks and other professionals to increase their due diligences requirements. It also covers the "persons politically exposed", that is - to say those may be corrupt. The report finally requests a special assessment on the application of the Directive to independent legal professionals, including lawyers, subject to the legal obligation to report .
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This European Commission report clearly demonstrates that in terms of regulation, the law is evolving in the form of a "stream". Indeed, this third Directive was highly debated. The European Commission reports both on the study of impact and a kind of preliminary draft of the next Directive due to the flaws or shortcomings observed in the application of the Directive adopted.
This report on April 11, 2012 is immediately open to a public consultation available on the Internet until June 13, 2012. The Commission plans to bring forward a proposal for a fourth anti-money laundering Directive in October 2012.Thus, we do not a series of texts but rather a endless debate. Indeed, the texts of direct (Hard law) are the resumption of informal standards of FATF (Soft law).
Therefore, it will be pointed out that the fight against money laundering is an essential part of the financial regulation. Here we see that repression is indissociable from the regulation.
It will be noted that the European Commission is intended to "internalize" the task of regulation, by entrusting professionals, here in the first place the banks, the duty to monitor operations, or even (more) operators. This internalization of regulation in the operators made them a second degree regulators (on this concept, see the reflections on crucial regulators). We understand the reason, because the agent is close to the information and that, with regard to banks, we could estimate that they participate in this in the public services.
But the reasoning meets an obstacle concerning lawyers because inversely, they are dedicated to defend offenders and to not denounce them, which restricts a such movement of " internalization", however decided by the European law. Finally, the Commission intends to assimilate tax offence and money laundering offence. But if the tax offence one money laundering offense can jeopardise public finances, what disturbs certainly public order is money laundering, it’s the reason why it is mainly pursued because it constitutes the visible part of very serious organised criminal activities (drugs, human trafficking, mafia, etc.) against which it is imperative to fight. The analogy does not apply to tax offences. Therefore, the step toward the denunciation in tax matters has no justification.
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