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Developments in international jurisprudence

This article explores key judgments from the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) regarding the obligations of lawyers to report suspicions of money laundering. It also discusses the scope of anti-money laundering legislation and the fight against money laundering in relation to the gambling industry and the free movement of capitals.

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Developments in international jurisprudence

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  1. Developments in international jurisprudence

  2. Obligation oflawyerstoreportsuspicionsofmoneylaundering ECJ, C-305/05 „ordre des barreauxe.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

  3. Confiscation ECHR, 68443/01, „Baklanov vs. Russia“ Confiscationofsmuggledmoneyconstitutes a violationof Art. 1 of prot. n° 1, if not providedforbylaw Itisthereforeonlypossibletoconfiscategoodsof illegal orcriminal provenance, if there is a clear provision in domestic law.

  4. 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

  5. Terror financing I GCEU, T-315/01, “Kadi I” • Premacy of UN-law before EU-law • Only indirect examination of resolutions of the Security Council • Jurisdiction of the GCEU only in relation to iuscogens ECJ, 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

  6. 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

  7. 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 state • It follows that a Member state can adopt measures of strict control on the gaming sector also to combat money laundering ECJ, 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

  8. 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 export • The objective of the national rule was combatting money laundering, drug trafficing, tax evasion and terrorism • Declaration could be a legitimate measure to reach the objective • Authorization 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)

  9. 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 security • If the investment has entered the country, a mere obligation of declaration might not be sufficient as the money has already entered the financial system • French legislation in question, however, was not sufficiently specific, therefore freedom of capital movement was infringed • ECJ 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

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