¹ FATF is an inter-governmental body that was established in 1989 by the Ministers of its member jurisdictions FATF home page at http://www.fatf-gafi.org/about/ (last visited Mar. 6, 2018).Google Scholar

² See, e.g., Bergström, Maria, EU Anti-Money Laundering Regulation: Multilevel Cooperation of Public and Private Actors, in Crime Within the Area of Freedom, Security and Justice: A European Public Order (Christina Eckes & Theodore Konstadinides eds., 2011) [hereinafter Bergström 2011].Google Scholar

³ See European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, the European Agenda on Security, COM (2015) 185 final (Apr. 28, 2015).Google Scholar

⁴ See Communication from the Commission to the European Parliament and the Council on an Action Plan for Strengthening the Fight Against Terrorist Financing, COM (2016) 50 final (Feb. 2, 2016).Google Scholar

⁵ Directive 2015/849/EU of the European Parliament and of the Council of 20 May 2015 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation (EU) 648/2012 of the European Parliament and of the Council, and Repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC, 2015 O.J. (L 141) 73. [hereinafter Fourth AML Directive] (In the case of money laundering, a predicate offense may cover actions used to obtain the initial funds.).Google Scholar

⁶ This Article builds upon and develops from my previous publications. See generally Bergström 2011, supra note 2; Bergström, Maria, The Place of Sanctions in the EU System for Combating the Financing of Terrorism, in EU Sanctions: Law and Policy Issues Concerning Restrictive Measures (Lain Cameron ed., 2013); Bergström, Maria, Money Laundering, in Research Handbook on EU Criminal Law (Valsamis Mitsilegas, Maria Bergström & Theodore Konstadinides, eds., 2016) [hereinafter Bergström 2016]; Bergström, Maria, The Global AML Regime and the EU AML Directives – Prevention and Control, in The Handbook of Criminal and Terrorism Financing Law (Colin King, Clive Walker & Jimmy Gurule eds., 2018) [hereinafter Bergström 2018a]; Bergström, Maria, Legal Perspectives on Money Laundering, in Research Handbook on Transnational Crime (Valsamis Mitsilegas & Saskia Hufnagel eds., Edward Elgar, forthcoming in 2018) [hereinafter Bergström 2018b].Google Scholar

⁷ The European Agenda on Security, supra note 3.Google Scholar

⁸ Id. Google Scholar

⁹ Proposal for a Directive of the European Parliament and of the Council on Countering Money Laundering by Criminal Law, COM (2016) 826 final (Dec. 21, 2016).Google Scholar

¹⁰ See Fourth AML Directive, supra note 5; Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on Information Accompanying Transfers of Funds and Repealing Regulation (EC) 1781/2006, 2015 O.J. (L 141) 1.Google Scholar

¹¹ See Proposal for a Directive of the European Parliament and of the Council on Countering Money Laundering by Criminal Law, COM (2016) 826 final (Dec.21, 2016) [hereinafter AML Criminal Law Directive].Google Scholar

¹² The European Agenda on Security, supra note 3; Press Release, European Commission, Commission Takes Steps to Strengthen EU Cooperation in the Fight Against Terrorism, Organised Crime and Cybercrime (Apr. 28, 2015), http://europa.eu/rapid/press-release_IP-15–4865_en.htm (last visited Apr. 8, 2017); see also European Parliament Resolution of 17 December 2014 on Renewing the EU Internal Security Strategy, 2014/2918(RSP), Parl. Doc. P8_TA(2014)0102, www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2014–0102+0+DOC+XML+V0//EN.Google Scholar

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¹⁴ See Action Plan for Strengthening the Fight against Terrorist Financing, supra note 4, at 2.Google Scholar

¹⁵ See European Commission, Fact Sheet: Action plan to strengthen the Fight Against Terrorist Financing. European Agenda on Security (Dec. 2016), http://ec.europa.eu/newsroom/document.cfm?doc_id=40720.Google Scholar

¹⁶ See generally Bergström 2018b, supra note 3.Google Scholar

¹⁷ See Action Plan for Strengthening the Fight Against Terrorist Financing, supra note 4.Google Scholar

¹⁸ See AML Criminal Law Directive, supra note 11.Google Scholar

¹⁹ See Fourth AML Directive, supra note 5.Google Scholar

²⁰ See Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 Amending Directive (EU) 2015/849 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, and Amending Directives 2009/138/EC and 2013/36/EU, 2018 O.J. (L 156) 43.Google Scholar

²¹ See Regulation (EU) 2015/847, supra note 10.Google Scholar

²² See also Bergström 2016, supra note 6.Google Scholar

²³ See Case C-212/11, Jyske Bank Gibraltar v. Administración del Estado, ECLI:EU:C:2013:270, para. 46, Judgement of 25 April 2013.Google Scholar

²⁴ See Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing, 2005 O.J. (L 309) 15 [hereinafter Third AML Directive].Google Scholar

²⁵ Treaty on the Functioning of the European Union, Oct. 26, 2012, 2012 O.J. (C 326), arts. 53(1) & 114.Google Scholar

²⁶ Council Directive 91/308/EEC of 10 June 1991 on Prevention of the Use of the Financial System for the Purpose of Money Laundering, 1991 O.J. (L 166) 77 [hereinafter First AML Directive].Google Scholar

²⁷ Financial Action Task Force, The FATF Recommendations, http://www.fatf-gafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html#UPDATES.Google Scholar

²⁸ Fourth AML Directive, supra note 5, art. 1(3) (not changed by the fifth AML Directive).Google Scholar

²⁹ Supra note 5, art. 1(2) (not changed by the fifth AML Directive).Google Scholar

³⁰ See Herlin-Karnell, Ester, Is Administrative Law Still Relevant? How the Battle of Sanctions has Shaped EU Criminal Law, in Research Handbook on EU Criminal Law, supra note 6.Google Scholar

³¹ At the time of writing in May 2018, the proposal has not been adopted.Google Scholar

³² AML Criminal Law Directive, supra note 9, at 1.Google Scholar

³³ Id. Google Scholar

³⁴ Id. at 2.Google Scholar

³⁵ Id. at 1. This section builds upon and develops from Bergström 2018b, supra note 2.Google Scholar

³⁶ See, e.g., ECJ, Case C-524/15, Menci, Luca, ECLI:EU:C:2018:197, Judgement of 20 March 2018; Case C-537/16 Garlsson Real Estate v. Consob, ECLI:EU:C:2018:193, Judgement of 20 March 2018; Joined Cases C-596/16 and C-597/16, Enzo Di Puma v. Consob v. Antonio Zecca, ECLI:EU:C:2018:192, Judgement of 20 March 2018.Google Scholar

³⁷ Fourth AML Directive, supra note 5, art. 58(1) (not changed by the fifth AML Directive).Google Scholar

³⁸ See Lenaerts, Koen & Gutiérrez-Fons, Jose, The European Court of Justice and Fundamental Rights in the Field of Criminal Law, in Research Handbook on EU Criminal Law.Google Scholar

³⁹ See Case C-617/10 Åklagaren v. Hans Åkerberg Fransson, ECLI:EU:C:2013:105, para. 34, Judgement of 26 February 2013.Google Scholar

⁴⁰ See id., para. 36.Google Scholar

⁴¹ On December 21, 2016, the Commission submitted two legislative proposals: The proposal for the Criminal Law AML Directive, COM (2016) 826 final (AML Criminal Directive, supra note 9), and a proposal for a Regulation on the mutual recognition of freezing and confiscation orders.Google Scholar

⁴² AML Criminal Law Directive, supra note 11.Google Scholar

⁴³ Council Framework Decision 2001/500/JHA of 26 June 2001 on Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation of Instrumentalities and the Proceeds of Crime, 2001 O.J. (L 182) 1.Google Scholar

⁴⁴ AML Criminal Law Directive, supra note 9.Google Scholar

⁴⁵ Id. at 5.Google Scholar

⁴⁶ Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA, 2017 O.J. (L 88) 6.Google Scholar

⁴⁷ AML Criminal Law Directive, supra note 9, at 5.Google Scholar

⁴⁸ Id. Google Scholar

⁴⁹ Action Plan for Strengthening the Fight Against Terrorist Financing, supra note 4.Google Scholar

⁵⁰ United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209.Google Scholar

⁵¹ Interinstitutional Files: 2016/0414 (COD) 2016/0412 (COD), Progress Report from Presidency to Council, Combatting Financial Crime and Terrorism Financing (Mar. 20, 2017).Google Scholar

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⁵⁵ See also Bergström 2018b, supra note 2; Bergström 2018a, supra note 2.Google Scholar

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⁵⁷ Id., n.18.Google Scholar

⁵⁸ Third AML Directive, supra note 24, recital 8.Google Scholar

⁵⁹ Id. Google Scholar

⁶⁰ FATF, FATF 40 Recommendations (Oct. 2004).Google Scholar

⁶¹ Id., Special Recommendation II.Google Scholar

⁶² Id., Special Recommendation III.Google Scholar

⁶³ Id., Special Recommendation IV.Google Scholar

⁶⁴ Id., Special Recommendations V–VIII (Recommendation VI has been covered by Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on Payment Services (PSD) in the Internal Market, 2007 O.J. (L 319) 1, and Recommendation VII was addressed by Regulation (EC) 1781/2006 of the European Parliament and of the Council of 15 November 2006 on Information on the Payer Accompanying Transfers of Funds, 2006 O.J. (L 345) 1.).Google Scholar

⁶⁵ Id., Special Recommendation IX (being covered by Regulation (EC) 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community, 2005 O.J. (L 309) 9).Google Scholar

⁶⁶ See generally Michael Power, The Risk Management of Everything (2004); Michael Power, Organized Uncertainty (Oxford Univ. Press, 2007) (explaining that risk management is expanding in both range and scope across organizations in the public and the private sectors and has become something of a contemporary standard for dealing with uncertainty in an organized manner). For an integrated analysis of the concepts of risk and securitization, see generally Bergström, Maria, Mörth, Ulrika & Helgesson, Karin Svedberg, A New Role for For-Profit Actors? The Case of Anti-Money Laundering and Risk Management, 5 J. Commons Mkt. Stud. 1043 (2011) (showing between the concepts of risk and securitization, both emphasizing the structural threats and uncertainties in the case of AML); see also Valsamis Mitsilegas, Money Laundering Counter-Measures in the European Union 3 (2003) (discussing “reconceptualizing security in the risk society”).Google Scholar

⁶⁷ See generally Herlin-Karnell, Ester, The EU's Anti Money Laundering Agenda: Built on Risks?, in Crime within the Area of Freedom, Security and Justice, supra note 2 (a critical analysis of the risk-based approach).Google Scholar

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⁷⁹ Id., art. 6(1) (not amended by the fifth AML Directive).Google Scholar

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⁸³ Id., art. 18–24, (will be partly amended by the fifth AML Directive, including the insertion of the new articles 18a and 20a).Google Scholar

⁸⁴ Id. art. 20–23 (with a new article 20a inserted by the fifth AML Directive).Google Scholar

⁸⁵ Id., art. 30 (will be amended by the fifth AML Directive).Google Scholar

⁸⁶ Id., art. 30(5) para. 2 (will be amended by the fifth AML Directive).Google Scholar

⁸⁷ Id., art. 32(3) (not amended by the fifth AML Directive).Google Scholar

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