Commentary by Gian Filippo Schiaffino, founding partner of AMTF Avvocati
After the Bataclan massacre in 2015 – the tragic anniversary of which was marked just a few days ago – and the more recent terrorist attacks in Berlin, Nice, and Barcelona, European institutions could not remain silent, feeling the need to respond also in terms of criminal policy. Over the years, it has been shown that international terrorism can be – and is – combated by controlling its financing channels. This realization has led European legislators to progressively expand and strengthen anti-money laundering regulations. This process culminated in Directive (EU) 2018/843 (the so-called Fifth Anti-Money Laundering Directive), which replaced Directive (EU) No. 2015/849 (the so-called Fourth Anti-Money Laundering Directive), incorporating the issues – as relevant now as they were then – proposed by the Commission (COM 2016/450). It should be noted that the new legislation follows only three years after the enactment of the Fourth Directive: this accelerated genesis of the Fifth Directive is also confirmed by the transposition deadline assigned to Member States, reduced to eighteen months compared to the two years set for previous legislation.
The Italian State has complied with the European legislator's guidelines by approving Legislative Decree No. 125/2019, published in the Official Gazette No. 252 of October 26, 2019, and in force since November 10, which contains the provisions necessary for the practical implementation of the new regulations. In particular, the measure in question is aimed at strengthening the legal instruments that prevent the use of the European economic system for money laundering and terrorist financing purposes, as well as clarifying the interpretation of certain definitions in the previous legislation. In a nutshell, the new European legislation aims to improve cooperation between the Financial Intelligence Units of the various Member States – the flagship FIU is the Financial Intelligence Unit (UIF) established at the Bank of Italy by Legislative Decree 231/2007 – and the national supervisory authorities: each EU Member State will now have to set up centralized registers of bank account and payment account holders, which the FIUs will be able to access immediately, exchanging information without intermediaries. Above all, each FIU will be able to contact any obliged entity directly to obtain all the necessary data. The unconditional acquisition of information will make it possible to track illicit cash flows in a timely manner. The different national definitions of certain predicate offenses – such as tax offenses – have been a further obstacle to the mutual exchange of information: from now on, FIUs will have to convey the requested information regardless of the type of predicate offense associated with it, so as to ensure synergistic cooperation.
Greater harmonization of the measures adopted by Member States should ensure a more efficient and uniform approach. Among the most significant additions, the Fifth Directive instructs Member States to require enhanced customer due diligence measures by obliged entities, with reference to the management of business relationships or transactions involving high-risk third countries. A collective effort to defend Europe, our identity.
