Developments in international - PowerPoint Presentation

Slide1

Developments

in international

jurisprudence

Obligation

of

lawyers to report suspicions of money laundering

ECJ

, C-305/05 „

ordre

des

barreaux

e.a

.“

2nd AML directive

The obligations of information and of cooperation for combating money laundering

do not

infringe the right to a fair trial.

Directive 91/308

exempts

the lawyer from the reporting obligation in case of assistance in court proceedings or their

avoidance

Assessment only in the light of article 6 ECHR

ECHR, 12323/11 „Michaud vs. France“

No violation of Art. 8 (applicant was a lawyer)

Combating money laundering is considered as the pursuing of the legitimate aim of the prevention of disorder and crime

Confiscation

ECHR, 68443/01, „

Baklanov vs. Russia“Confiscation of smuggled money constitutes a

violation

of

Art. 1

of

prot. n° 1,

if

not

provided

for

by

law

It

is

therefore

only

possible

to

confiscate

goods

of

illegal

or

criminal

provenance, if there is a clear provision in domestic law.

Scope of anti-money laundering legislation

ECJ, C-212/11, “

Jyske Bank Gibraltar Ltd.”The obligation of banks to report suspicious transactions may be extended also to banks which only offer services within another Member State without being established there.Measure is appropriate to attain the aim of preventing Money laundering and terrorist financing

Terror financing I

GCEU, T-315/01, “

Kadi I”Premacy of UN-law before EU-lawOnly indirect examination of resolutions of the Security CouncilJurisdiction of the GCEU only in relation to ius cogensECJ, C-402/05 P

e.a

., “

Kadi

I”

Jurisdiction in relation to reg. (EC) 881/2002 “in principle the full review”

Fundamental rights of

Kadi

infringed

Annulment of reg. (EC) 881/2002 in the then applicable version

Terror financing

II

GCEU, T-85/09, “Kadi II”GCEU follows ECJ in Kadi I“so long as the re-examination procedure operated by the Sanctions Committee clearly fails to offer guarantees of effective judicial protection”Fundamental rights of

Kadi

infringed

ECJ, 584/10 P

e.a

., “

Kadi

II

”

ECJ dismisses appeals, but identifies

errors in law of the GCEU

Money laundering and the gambling industry

ECJ, C-347/09, “

Dickinger and Ömer”Gaming monopolies are a legitimate way of combatting crime, if there is evidence that the crime and fraud linked to gaming and addiction to gambling are a problem in that Member stateIt follows that a Member state can adopt measures of strict control on the gaming sector also to combat money launderingECJ, C-212/08, “Zeturf”Gaming monopolies are legitimate to exercise strict control on the sector, if the monopoly is adequate to ensure the high level of protection sought for by the authorities

The applicant in the case argued that the monopoly was actually used to launder money by selling betting slips of anonymous betters and was therefore part of the problem instead of the solution

The fight against money-laundering and the free movement of capitals I

ECJ, C-358/93

e.a., “Bordessa”Spanish legislation imposed an obligation to declare the export of cash money or – with regard to higher amounts of money – seek authorization for the exportThe objective of the national rule was combatting money laundering, drug trafficing, tax evasion and terrorismDeclaration could be a legitimate measure to reach the objectiveAuthorization however infringed the free movement of capitals

ECJ, C-163/94

e.a

., “

Sanz

de

Lera

”

As above but related to the export of cash money to non EU-countries

For fighting money-laundering a system of prior declaration is sufficient

An authorization requirement is excessive

(“

Konle

” is not in line with this judgment, but has a completely different background and legislative objective)

The fight against money-laundering and the free movement of capitals

II

ECJ, C-54/99, “Scientologie”ECJ accepts the idea that authorisation of importing foreign capital may be necessary to prevent a threat to public securityIf the investment has entered the country, a mere obligation of declaration might not be sufficient as the money has already entered the financial systemFrench legislation in question, however, was not sufficiently specific, therefore freedom of capital movement was infringedECJ cautiously moves away from “Bordessa” and “Sanz de

Lera

”

Judgment most likely to apply also in the fight against money-laundering, as money laundering poses a threat to public security