The EU enacted its first legislation against money laundering 27 years ago in 1991 in response to fears that criminal activity could jeopardise the whole financial system. As a result, many ordinary citizens probably feel they have walk about with a “recent utility bill” in their pocket to undertake quite mundane financial transactions.
For all this huge effort by ordinary citizens, the UK’s Home Office reported that only 1,435 people were convicted of money laundering in England and Wales in 2016 – just twice the number of murders committed. In the most recently published annual data only “more than 450 suspicious bank accounts” were closed and a paltry £7 million in suspected criminal funds were frozen. Yet the Home Office estimates that annual money laundering in the UK exceeds £90 billion – 5% of GDP.
The failure of successful enforcement is equally dramatic elsewhere in the EU – and elsewhere in the world. The “Panama Papers” lifted the lid a web of strange financial dealings but 2018 also witnessed a string of massive failures against manifest money laundering – in Latvia, Malta and Estonia, where the local branch of Denmark’s biggest bank is implicated.
The Latvian case has much wider implications for the EU as a whole because the Council of Europe’s (which is not an EU entity) “Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism” (MONEYVAL) concluded that Latvia’s judicial system “did not appear to consider money laundering as a priority.” The Latvian Government must now convince the Financial Action Task Force (FATF) within a year that it has resolved these problems or an EU state may be blacklisted – alongside Syria, Yemen etc.
The EU clearly has a more general problem. According to the latest Europol figures, between 0.7 and 1.2 percent of EU annual GDP is “detected as being involved in suspect financial activity” - a dramatically lower ratio than the UK’s estimate for itself. According to the Director of Europol, “The banks are spending $20 billion a year to run the compliance regime … and we are seizing 1 percent of criminal assets every year in Europe”.
These cases virtually coincided with the entry into force of the EU Fifth Money Laundering Directive in July. Interpol argues that the failure to stem the tide flows from a series of national solutions to deal with an international problem. It seems the national Financial Intelligence Units rarely co-operate with each other. Indeed, it was the US Treasury which blew the whistle in Latvia. Subsequently, it transpired that the ECB did not have the power to “rule” on money laundering cases – that is still a national prerogative. Only when there is a “ruling” can the ECB use it to withdraw a bank’s licence.
Clearly and in the time-honoured process of shutting the stable door after the horse has bolted, “something must be done”. The 5th AML Directive may now be in force, but Member States still have 18 months to implement it. Moreover, it enhances various powers of the states but does not oblige them to use the powers effectively. So thoughts are turning to the potential contents of a Sixth Directive.
Perhaps an EU-level anti-money laundering authority is necessary as part of the single financial market but also as part of a single enforcement of the intentions of EU level legislation in other fields. The European Commission has set up a working group including the SSM and the three ESAs to identify specific actions. This will build on the Commission’s six possible actions (see below) and a report is imminent.
Action 1: Better use of the European Supervisory Authorities powers to ensure the correct application of EU law and supervisory convergence by national AML authorities;
•Action 2: Better integration of AML considerations into prudential supervision;
•Action 3: Greater use of supervisory colleges to consider AML issues;
•Action 4: More clarity on when and how the power to revoke a banking licence (or other financial institution's license) can be used in the case of money laundering concerns;
•Action 5: Improving coordination and exchange of information;
•Action 6: Consideration of any further steps necessary for a stronger common Union approach to AML supervision and compliance.
The SSM has already called for the establishment of a European Authority (but which is separate from the ECB/SSM) “as anti-money laundering concerns both the supervisory and criminal/judicial spheres, reviewing the [AML] Directive may not suffice to ensure cooperation is smooth and all-encompassing. Establishing a European AML authority could bring about such a degree of improved cooperation”.
However, such technical measures may also be politically highly sensitive. If Member States want – collectively - to regain their sovereignty from organised crime, they may have to pool even more of their nominal sovereignty as 27 years of effort have removed the risks of criminal activity to the financial system. Nothing could illustrate more powerfully the longer-term integrative effect of the single currency as it obliges the euro-area states to move towards an ever-closer union.
See European Parliament’s excellent and detailed analysis www.europarl.europa.eu/RegData/etudes/IDAN/.../IPOL_IDA(2018)614496_EN.pdf
© Graham Bishop
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