Conference of European Union Parliaments against money laundering
7 et 8 février 2002 ~ Assemblée nationale ~ Paris
WHY A CONFERENCE OF EUROPEAN UNION PARLIAMENTS AGAINST MONEY LAUNDERING ?
URGENCY OF ACTION
For several years now money laundering has been a major threat to democracies. This perversion of international financial circuits facilitates the development of serious crime based on frauds, drug trafficking, Mafia-type activities, corruption, etc.
We knew that terrorism too could not develop without using the customary channels and methods of laundering. The 11th of September brought about international awareness of the urgency of a relentless fight against terrorism and its funding.
Combating terrorism and laundering - equally urgent tasks. All the actors of international public life must be mobilised to adopt strong and effective measures that will countercheck laundering and penalise all those who let this gangrene of democracy develop.
MOBILISATION OF EUROPEAN PARLIAMENTS
This urgency explains the fact that the President of the French National Assembly has taken the initiative to organise a Conference of European Union Parliaments against laundering to back up the customary operating methods of European institutions. EUROPE is indeed vested with special responsibility in this field. A large share of financial delinquency is observed in territories with historic or geographic ties to Europe. Further, laundering may use loopholes or shortcomings in all financial, banking or commercial systems, including those of European countries.
Governments as well as international and European institutions obviously have a specific role to play in the policy combating laundering and financial delinquency. Several international conventions have been signed or ratified, and European directives
adopted. But national Parliaments remain one of the major actors of this policy because national law remains a prime instrument in combating laundering. International cooperation must not intervene solely at the level of governments, administrations, the police and the judiciary, but also in Parliaments which the French initiative aims to mobilise. The introduction of effective legislative mechanisms is moreover one of the criteria adopted by international bodies in judging the level of reliability of a State.
The efficacy of the fight against laundering supposes, firstly, clear and unequivocal legislation which, as part of a necessary harmonisation of legislations, takes into account the existing practices and institutions of other countries. Parliaments also have a major responsibility owing to the ratification of international conventions, which if delayed can prove highly detrimental.
AN ORIGINAL INITIATIVE
The Conference aims to propose rapidly to all European Parliaments a Declaration stressing the importance and urgency of taking action and listing a series of practical measures.
The customary rules of discussing and voting on international or European texts will not apply to the Conference. The aim is not to adopt a rule of law which will then enter into force in the member countries. The parliamentarians attending the Conference to whom the terms of the declaration will be submitted are not all mandated to commit the Parliaments they represent.
This Declaration will allow Parliaments to share a common reference text and define the bases of a stringent legislative policy. The originality of this approach explains the flexibility of the procedure used. It will allow each signatory to affirm his commitment to a crucial combat for democracy by defining the essential base for effective action.
List of Participants:
Germany : Dr Hans-Peter UHL, Parliamentarian, accompanied by Mr Andreas NOTHELLE, Civil Servant
Bundesrat : Dr Marcus WENIG, Brandenburg Representative in Brussels
Belgium : Chamber of Representatives
Mr Hugo COVELIERS, President of the Flemish Liberal Group (VLD)
Senate : Mr T. DEWAELE, Civil Servant
Spain : Congress of Deputies Mrs Soledad BECERRIL, Vice President of Congress
Senate : Mr Alfredo PRADA PRESA, First Vice President of the Senate, accompanied by José-Manuel BRETAL VASQUEZ, Legal Advisor
Assemblée nationale - National Assembly : Mr Vincent PEILLON, President of the Investigation Committee on Obstacles to the Control and Repression of Financial Crimes and Money Laundering in Europe
Senate : Mr Bernard ANGELS, Senate Vice President, accompanied by Mr Christian OUDIN, Civil Servant
Greece : Hellenic Parliament : Mrs Maria ARSENIS, Deputy, and Mrs Eleni CONSTANTINIDOU, Civil Servant
Italy Chamber of Deputies
Senate : Mr Roberto CENTARO, Senator, accompanied by Mr Sebastiano CARDI, Diplomatic Counsel to the President of the Senate and Mrs Laura BOEZIO, Civil Servant
Luxembourg : Mr Laurent MOSAR, Deputy
Mr Olivier de BAYNAST, Magistrate Representing France at
Bulgaria Mr Nicolay TRIFONOV, First Secretary
Estonia Mrs Gita KALMET, Chargée d’affaires
Hungary Mr Jozsef OROSZ, Counsellor
Latvia Mrs Agnija RASA, First Secretary
Lithuania Mrs Ramune PETRAUSKAITE, Second Secretary
Malta Pr Salvino BUSUTTIL, Ambassador
Poland Mr Slawomir CZARLEWSKI, Plenipotentiary Minister
Czech Republic Mr Bremslav KALUSEK, Counsellor (Trade and Economic Affairs)
Russia Mr Nicolas BROUSNIKINE, Deputy, accompanied by Mr GRICHANKOV, Deputy, Mr Wladimir MATCHABELLI, sofarus, and Mr Vladimir OUSTINOV, Civil Servant
Slovakia Mr Stanislav VALLO, Chargé d’affaires
Slovenia Mrs Darja GOLEZ, First Secretary
Turkey Mrs Ayse SEZGIN, Counsellor, accompanied by Mrs Sebnem CENK, First Secretary
Austria Mr Bernhardt FAUSTENHAMMER, Second Secretary
Mr Michel BEAUSSIER, Lawyer
The session opens at 2:45 PM, and is chaired by Mr Vincent PEILLON.
I would first like to provide a few indications regarding the elaboration of this declaration, which we hope to be able to adopt on February 8th next. The Steering Committee has already met once, on December 3rd last, examining a text that we had sent out in a relatively short time prior to the meeting. At that session, we called for comments from the various parliamentary delegations and experts present in a systematic manner. The text that you have before you today includes those corrections, which are highlighted so that you can all see them clearly. Today, we will go through the text a second time.
It is my pleasure to welcome delegations that were not able to present on December 3rd: the German Bundestag, the British Chamber of Commons and the Luxembourg Chamber of Deputies. Likewise, some of the experts present are attending for the first time. Lastly, a number of countries requesting membership in the European Union are represented, not to take a direct part in the work, but to observe. The Russian Duma will also be present as an observer up until the completion of our project, on February 8th.
We aim to reach a conclusion during the February 7-8 session. The adoption of the declaration is expected to take place, with as many countries represented as possible, on the morning of the 8th. Raymond Forni, Chairman of the French National Assembly, will host the event. On the 7th, we have planned a final working session, which is to last the entire day. Since we have worked in the most confidential of settings until now, we would also like to take advantage of that day to carry out "educational" activities. Even though we will definitely still have adjustments to make, we would like the day to be open to representatives of civil society who are interested in these issues, as well as to the national and international press. In the next few days, the members of the Steering Committee will be invited to take part in Round Tables that cover the Declaration’s four topics, and which will provide an opportunity to continue with our discussions in a more informal setting.
Obviously, our ability to publicly explain our choices on that day will be crucial for the credibility of our undertaking. It is clear to us how much the fight against financial crime, trans-national crime and money laundering has become a concern for numerous international bodies, to which the countries represented today belong. We can also see that, very frequently, national parliaments are less involved in these international issues than civil servants or representatives from executive branches, who meet at European Council sessions, G7 meetings or OECD events. Insofar as the sovereignties are still dependent on their national parliaments, it is important to show that we do not lag behind and that we share their aims. It is for this reason that Chairman Forni lends great importance to the conclusions that we will adopt.
We are present in greater numbers today than the last time. I suggest that, as a measure of courtesy, we first give the floor to the parliamentary delegations that were not present at the last Steering Committee meeting, so that they can publicly express their positions. Following that, all those who wish may request the floor.
I will now list the main modifications made to the text following the December 3rd meeting.
In the Preamble to the Declaration, several delegations, and in particular the Spanish delegation, had requested that we provide a clearer explanation of the link between the problem of money laundering and the financing of terrorist activities. We did so by emphasising that the many instruments that foster money laundering and the financing of terrorism are often the same, all the while making a distinction between the two phenomena. In short, we laid emphasis both on our shared concern, and on the differences that separate the mechanisms involved.
On the first topic, which pertains to the transparency of capital movements, we added a condition to the requirement that all transactions carried out in fiduciary money be reported, specifying that the reporting will not be mandatory if it is impossible to identify the customer. As the objective described seemed too vague, we added three proposals: firstly, the opening of information held by financial institutions to financial intelligence units, which is called for in anti-laundering laws, but which often raises problems; secondly, the creation of a central bank account register; and thirdly, the identification, by access providers, of parties who carry out financial transactions via Internet. These additions have been highlighted in the text, but we did not indicate which delegations requested them.
The second topic deals, in particular, with sanctions against non-cooperating territories. We have widened the range of sanctions to include such measures as the reinforcement of requirements regarding the identification of the customer, surtaxes on transactions with such territories, or prohibiting entities whose headquarters are based in these territories from establishing themselves inside the European Union.
As regards the third topic, that of investigative and judiciary co-operation, we have integrated co-operation at the administrative level, something that was sorely absent from our discussions and which is obviously a vital form of co-operation. We stressed the need to reinforce the consistency of international conventions on judiciary co-operation, which have become more and more frequent in recent times. Lastly, using Italy as an example, we suggested that the burden of proof be modified where the criminal origin of capital is concerned, but did not go so far as to bring up crime by association with a criminal organisation, a topic on which many a discussion focused. We also added harmonisation of crime definitions, along with the introduction of a mechanism by which confiscated goods could be shared following international co-operation on cases. We had discussed the topic of a European public prosecutor, and many of you, often for opposing reasons, regretted that it was so vaguely and briefly described in the text. Seeing no need to overrun Eurojust’s territory, we wanted the European public prosecutor to be in charge, initially, of issues relating to fraud within the Community, in particular on intra-Community VAT, and issues that are already covered by the European warrant for arrest, such as financial crime.
Regarding the fourth topic, that of prudential laws, we introduced the idea of penalising parties that are subject to the laws, but fail to report suspicious activities. This clause exists in other European countries, but not in France, to name one country. There is currently lively debate on this topic in France, as a number of top bank executives have been placed under investigation for money laundering, to which they respond that the crime was not intended.
It is never easy to incorporate ideas suggested on a previous occasion, all the while maintaining the overall equilibrium of the text, along with the sometimes conflicting ideas expressed by various representatives. I suggest that we open the debate using the new text as a foundation, either to bring up certain points that you feel were not given sufficient attention, or to add new proposals.
Thank you for giving me this opportunity to speak. I will limit my contribution to a few remarks, which, according to our experts on money laundering, are important. Regarding the first topic, the first proposal suggests that all transactions carried out with fiduciary money be declared to financial intelligence units, unless it is impossible to identify the customer. The clause limiting the requirement to declare all transactions does not seem realistic to our experts, who feel that it would be preferable to eliminate it. The requirement should be absolute, and not be waived when it is impossible to identify the customer.
As regards judiciary, investigative and administrative co-operation, the key is to determine to which unit suspicious activities should be declared. In general, such declarations are not filed with police stations. The first warnings come from banking institutions. In other words, investigative forces are entirely dependent on information provided by these establishments, insofar as it cannot institute proceedings until the banks have sent out a warning. Normally, investigative forces should have access to information that allows it to address banking institutions directly. Does our judiciary and investigative co-operation lag behind our administrative co-operation? In Germany, we feel that it is very important to avoid any such delay. The problem would be more likely to come from the financial intelligence units. Our experts emphasised this.
In the fourth topic, the Declaration mentions the desire to prohibit cash payments beyond a certain amount. From an intelligence standpoint, the idea is obviously a desirable one, but according to our experts, it is not realistic. It is not possible to implement such a limit. Moreover, the amount has not even been defined. The enforcement of the law would be arduous and the sanctions are difficult to imagine. We feel that it would be preferable to drop this measure, which could not be implemented anyway.
In the German system, the modification of the burden of proof would go against the presumption of innocence, one of the fundamental rules in our constitution. This modification, which would be beneficial, calls for the utmost care, and could be difficult to implement in Germany, with regard to our constitution. Speaking of which, the translation is not quite clear. The English version refers to sharing the burden of proof, while the French version refers to a modification. Is the aim to overturn the burden of proof?
Some of your comments deal with matters of principle, in particular the last one, regarding the reversal of the burden of proof, which raises the problem of protecting individual liberties. Some other comments were more related to practical aspects, such as cash payment. We are familiar with your traditions. It is true that it is easier to limit payments in other countries, as is already being done. We will obviously take all of your comments into account.
The United Kingdom Parliament sincerely welcomes the initiative taken by Mr Forni. We wish to play a full part. Concerning the first issue, the transparency of capital movements, we feel that creating a central register of bank accounts could impose huge costs on both private and public sectors. In the United Kingdom, the debate has indicated that such a measure may not deliver any real benefits. In this instance, the means justifies the end. We feel that the system providing investigators with tools to access information on bank accounts functions satisfactorily. Indeed, we hope to introduce this targeted system in United Kingdom. From my position as chairman of the House of Commons Treasury Select Committee and from talking to the banks in United Kingdom, I know that there is a high degree of co-operation between the banks and investigative forces. This co-operation has been particularly noticeable since September 11th. In the past, the United Kingdom has resisted creating a central bank account register on the basis that it could be unjustified by insufficient benefits.
The second issue concerns legal, administrative and investigative co-operation. In this regard, we note the recommendation for the establishment of a European public prosecutor. However, this recommendation was rejected by the member-states at the last inter-governmental conference. We feel the differences between the common law system in United Kingdom and the various law systems in France and elsewhere suggest that we remain to be convinced before making any movement. On the issue of trusts, the relevant law in the United Kingdom represents a very complicated system. We feel that the solution is not to abolish trusts, which some feel could be a consequence of the proposal. Instead, we need to ensure transparency by means of empowering investigators to overcome any obstacles in an individual investigation. Such a solution should provide investigative forces and others with the tools to pierce through any veils of confidentiality created in a trust relationship. As trust law underpins all United Kingdom property law, rather than the fundamental approach that is being suggested, we prefer the idea of empowering the investigators.
Another aspect is the information wired transfers. Obviously, we wish to conform to the Financial Action Task Force’s special terrorist financing recommendation number 8. However, we feel that the European Union needs to work in co-operation with other partners to ensure that a global front is agreed. Such an agreement would ensure that the European Union systems themselves are compatible with those elsewhere. Concerning the prudential laws for security transfer networks, the United Kingdom has introduced a registration for money services and businesses. Again, we feel that a registration process could result in disproportionate constraints and minimum benefits. I would commend the registration path that we have taken. Obviously, there would be significant consequences in restricting cash payments over a certain amount. For example, it would prevent legal tender from being used to settle debts. There may be a case for requiring some controls where large cash payments are made, especially concerning the identification of the customer and the obligation to report transactions suspected of being linked to money laundering. From my conversations with bank chief executives and chairmen, I know that they are very encouraged by the government and the financial services agencies in United Kingdom, who aim to ensure the utmost attention to this particular aspect.
In closing, we can say that a number of the proposals need precision before we can assess their implications. In this regard, I draw your attention to the reference to generalising access to information held by financial agencies for financial intelligence units. It has been suggested to me that this could undermine the principle of the court oversight, when investigative forces require financial institutions to produce confidential information. There is a series of implications for several liberties. Following September 11th, the government and Home Office have introduced anti-terrorist legislation, which was criticised on the basis that several liberties were being undermined. For example, the detention of suspects and the possible identification of the suspects could conflict with Habeas Corpus. The government had forced a passage on that issue. The repercussions on several liberties have to be considered by this Committee and the individual parliaments. The accomplishments to date have underlined the need for a European weight basis to take us forward. Above all, we must ensure a global approach on this issue. Money laundering is a global network that does not recognise borders. To act decisively, our ultimate objective should be on a global level.
Of course, our concerns necessarily go beyond the borders of the European Union. We all understand that money-laundering problems do not stop at our borders. However, we also know that we will be in a better position to bring the rest of the world along with us if we are able to take consistent, unanimous and determined stances as a group. We are well aware that we will not emerge from the depths and into the light in a single bound. Your concern is shared by all of us, as well as by public opinion. We must achieve that delicate balance between our desire to move ahead in the establishment of international public order and the need to respect individual liberties, all the while remaining respectful of our traditions and sovereignties. Following the September 11 attacks, the measures taken by each of our countries with regard to terrorism, whether on the financial aspect or on security, gave rise to discussion and made it necessary to debate over the protection of individual liberties. Let us keep in mind that the protection of individual liberties should not prevent us from admitting, even where terrorism and its financial channels are concerned, that we may not always have done as much as possible. Even when the United Nations recommended certain actions in its resolutions, we did not always scurry to incorporate them into our national law. It is therefore important that we have the will to go beyond what we have done up until now; I believe that this text provides us with the matter needed to do so.
I would like to thank you for having invited me to this conference and for taking the initiative to instate a conference of European Union parliaments against money laundering. Given that the Luxembourg Chamber of Deputies was unfortunately unable to attend the first meeting, it is difficult for me to give a detailed opinion on all of the points made in the draft declaration. I will have to discuss it with the Luxembourg Parliament’s Legal Committee beforehand.
My English colleagues have already stressed an important point in the Preamble. I feel it is important that this policy on the fight against money laundering be extended to all OECD countries. There is no reason to limit it to the European Union or to its candidate countries. I would like the Preamble to stipulate that all of the measures proposed will have to be adapted to all OECD countries. If we do not make this extension, the fight will be very difficult. I would also like to raise the issue of territories belonging to certain countries, as exemplified in the various British Isles. Will the measures also apply to these territories?
Secondly, it seems to me that a great number of highly effective measures have been included in the text. However, some of them are difficult to implement. More importantly, whatever the case, they seem to be in contradiction with the Community’s measures on free movement of goods and services. Perhaps we will have an opportunity to come back to this topic later. Thirdly, some of the measures appear to be in contradiction with the terms of the European Convention on Human Rights. It will therefore be necessary to look at these various aspects, as we would be doing poor parliamentary work if we adopted measures that were not respectful of human rights.
I would like us to be able to debate the measures you mentioned soon, possibly in writing, in order to determine which ones should be kept and which should be withdrawn. The timetable we have chosen is such that we need to move quickly. The February 7 session will be an open work session and we do not want the public to see too much disagreement between us. All of the work on the basic text should be completed before we begin the educational component of our project, and open it up to the outside world. Therefore, do not hesitate to come back to us on any specifically identified proposals that might bring about problems in principle.
Alfredo PRADA PRESA
The Spanish delegation regrets the fact that the Spanish language is not being used during this working session; we hope that it will be included at the upcoming meeting in February. Spain has just taken over the presidency of the European Council. The main priority established by President Aznar is the fight against terrorism. It is a scourge that can affect any country, as we saw with the painful events of September 11. In order to be effective, the fight against terrorism requires that a single judiciary environment be established, in which, while respecting fundamental rights and liberties, the co-operation between judiciary, investigative and administrative systems are provided with the appropriate tools to fight criminality, whatever form it takes on, be it terrorism or money laundering.
The principle of the European warrant for arrest was eliminated from the declaration that we were presented, due to the ongoing negotiations. Spain hopes that this warrant will be adopted because it is a very effective tool. We must not let this opportunity to engage in debate over the European warrant for arrest, which, thanks to its breadth and characteristics, is expected to make it possible to go beyond the limits of the venerable extradition process and establish an appropriate legal procedure for fighting against global crime. In our view, it would be fitting to work toward a memorandum of understanding between Member States on the warrant for arrest, as it is a fundamental tool in the fight against money laundering and the financing of terrorist activities. For this reason, we request that the following sentences be added, to strengthen the Preamble: "It is therefore fitting to fight terrorism and money laundering using the most effective tools, in order to deal with organised crime and its financial mechanisms. This implies the full adoption and proper enforcement of the European warrant for arrest in the near future."
The Italian delegation is pleased to see that the number of participants in this conference has grown, to include not only additional countries from the European Union, but also other countries that wish to become a part of the Union, or who are interested in the discussions, as is the case with Russia. I share a great number of the new ideas in the text.
Regarding the Preamble, I share in the comments made by the Spanish delegate on the reinforcement of the fight against terrorism and the creation of a Community-wide judiciary system that is given access to effective means. This point will be more and more important in the future, in particular where the European warrant for arrest is concerned. We must use effective means in the fight against terrorism in order to foster stability within European boundaries. In the third paragraph, the term "mobilisation" calls forth images of armies and unions. The term "action" seems more appropriate to States and governments. In the fifth paragraph, I would refer to the insufficiency of the legislation, the sluggishness of system and the absence of sanctions against non-cooperative States. This can no longer be tolerated because these States benefit from the deficiencies of the legal system. Lastly, I have doubts about the investigative forces and the magistrate mentioned in the sixth paragraph. We now have a common currency and I hope that we will have a common judiciary authority.
I am in full agreement with the German delegate’s comment regarding the first theme. All fiduciary transactions should be reported without exception, regardless of whether the recipient of the funds can be identified. There is no need for that condition, as it is always possible to identify the customer. I believe it would be preferable to require reporting under all circumstances and whatever the conditions. The central register of bank accounts will be difficult to establish, but it will most certainly facilitate access to accounts. The identification of the accountholder is not always reliable, as it is possible for people to lend their identity. I am not against this measure, but I do have doubts as to its effectiveness.
Regarding the second topic, the new terms are well suited and helpful. However, the legislation enforced by certain countries requires full transparency when subsidiaries or offices are to be opened. This transparency must be guaranteed in all situations. The scenarios described are nonetheless of interest. On the third topic, it will be necessary to implement and reinforce investigative and judiciary co-operation, using all of the measures which that entails, so as to harmonise systems in all countries and, in particular, penal procedures. The measure on shared confiscation, however, appears difficult to implement insofar as the legislation of the various Member States must be taken into account, whether in terms of confiscation itself, or regarding the presence of goods. I do not see how we can proceed and I do not know whether such measures would be easy to apply.
The establishment of a European public prosecutor would have to take into account national legislation. In Italy, for example, the public prosecutor is totally independent from the Executive branch and is, by no means, subject to inspection, whether direct or indirect. This is not true in other countries. For the time being, a European public prosecutor would be inefficient and premature. There is no use in creating it as long as the systems used by the Member States are so different from one another. As a first step, we might broaden Eurojust’s jurisdiction by putting it in charge of co-ordination of Community-wide action. This body could ease the exchange of information between the investigative forces of different States. That is one of the first measures we can take to reinforce the fight against terrorism. We must not give the impression that we are building up our institutions by implementing tools that are difficult to use. We must first do whatever is possible to strengthen co-operation between investigative and judiciary forces, and identify the most effective tools.
Lastly, we should include one point in the Preamble. It is important that we foster co-operation and harmonise judiciary methods. This could be the first step in reinforcing the judiciary system—an initial clause that would guarantee that the declaration would be adopted and implemented. It is important that the provisions included in the text be concretely implemented.
We knew that this debate on the European public prosecutor would come up. I am not surprised to see that the pragmatic and limited approach we took has raised problems. However, that is not the most important factor. We must be flexible. I am more surprised to hear your comments on the central registry of bank accounts, something that already exists in several countries. That kind of tool fully guarantees individual liberties. Some judges and investigators can have access to it for specific investigations. It is an extraordinary tool in the fight against terrorism, financial crime and money laundering. Each of our countries’ judges, if given access to such a tool, would save a considerable amount of time, in a field where speed is often the decisive factor. I understand the issues you raise in principle about the European public prosecutor. I also understand your doubts about cash payments. However, we need to come back to this topic because, as the FATF has maintained for years, they have a strong influence.
The Senate’s Commission on the Monitoring of Organised Crime studied the draft on January 8 last. It supports the proposed text in large part, with the exception of a few minor adjustments. The Commission proposes that you specify, at the end of the first paragraph in the Preamble, that money laundering and financial crime are a direct threat not only to the stability of the economy, but also to the security of all citizens in our democratic societies. The Commission does not want the approach to be limited only to its economic dimension.
Regarding the transparency of capital flows, the Commission feels that the concept of financial crime needs to be clarified, in particular as concerns its fiscal aspects. Violations involving money laundering often combine many different aspects. The exclusion of the fiscal dimension does not have to mean draining the entire text of its content, even though we are aware that the problem is a difficult one. This clarification would make it possible to avoid adopting beautifully written texts of principle, that are totally empty where content is concerned. On page 3, the Commission proposes that you add, after "the financial opaqueness of certain legal entities", the following words: "or financial transactions (digital accounts)". The Commission feels that such accounts should be treated as the technical equivalent of fiduciary funds, as they too were designed to make identification of the customer impossible.
As concerns judiciary, investigative and administrative co-operation, the Commission proposes that the three adjectives be listed every time the text mentions co-operation. In the fourth paragraph of page 5, the text refers to various international bodies. The Commission would like to include the work carried out by the OECD in that listing. Lastly, regarding the proposal on page 6, which suggests that financial offences be included in the list of violations covered by the European warrant for arrest, the Commission feels that the 11 December 2001 agreement, relating to the European warrant makes this a moot point. The laundering of proceeds from crime is already one of the 32 major violations that do not require the agreement of both involved countries on the definition of the crime in order for extradition to take place. This point remains to be discussed.
My last comment concerns prudential laws. The Commission asks that some reference be made to the financial intermediaries active on the Internet, seeing as new technologies seem to have been left out of the text. Yet there exist a variety of mechanisms, including online casinos, which can serve as money laundering channels. The introduction of this dimension would make it possible to ensure that prudential laws also apply to intermediaries who work on the Internet.
I would like to specify that we are using two working languages: French and English. We are hearing other languages today, as some parliamentarians have come with their translators. Naturally, at the final session, we will use all of the Union’s working languages. We did not intend to favour certain languages; we simply stayed with what had been planned in the beginning.
My Spanish colleague, Senator Prada, has suggested modifications concerning the preamble. Having restudied this important text with some Spanish MPs and experts, I would like to make some suggestions on the rest of the document.
Concerning the first subject, we suggest the inclusion of another proposal with the following content: "improvement in obtaining and sharing information on cash movements on EU external borders". As we all know, terrorists groups and organisations have shown a clear tendency to use cash in order to finance their activities. According to the presentations on terrorist financing and several international meetings, this is how they are acting today. Therefore, the more intense the controls on the financial sector, the more frequent the use of cash by these groups. In several working papers, the EU Commission has pointed out the possibility of taking action to establish common mechanisms to obtain information on cash flows through the external borders of the European Union. These reasons, among others, would suggest a need to add to this subject.
Regarding subject number two, we suggest adding the following sentence to the last two proposals: "when these countries and territories fail to timely apply the recommendation made by the Financial Action Task Force". In justifying this addition, we think the major contents in these two proposals might not be applied to those cases in which a country has been assessed as non-co-operative by the FATF but is still in the process of application of the FATF recommendation. Therefore, this measure must be applied to those countries that refuse to apply the FATF recommendation.
Regarding subject number three, we suggest adding the following sentence at the end of the first proposal: "In particular, the immediate and effective application of the provisions concerning the European order of detention would be very fruitful for this purpose." I believe this addition does not need a protracted explanation. On the same subject, proposal three poses us some doubts. We agree with the comments made by the Bundestag representative. Whether it due to the translation or the interpretation, we are not sure this paragraph is expressed in correct terms. It could sound to some people as if we were trying to overturn the burden of the proof on the criminal origin of money. As such a measure contradicts a principle of our constitution, as I am sure it does for other European parliaments, we could not accept its passage. Perhaps the paragraph is not clear enough. We are not trying to do something illegal. I would also suggest a new proposal with the following content: "Increase the exchange of information among the European financial intelligence units". The financial intelligence units are the organisations in charge of receiving and analysing information on suspected money laundering. In the fight against money laundering, it is extremely important to demand and encourage the exchange of information between these units.
Of course, the modification of the burden of proof does not mean reversal. The objective is not to force the accused to justify his actions when the prosecution has no proof. The prosecution must first have access to certain elements, and in particular, be able to demonstrate a connection, the nature of which varies according to the prevailing legislation, with the group of lawbreakers or the criminal organisation. If the prosecution needs to provide that proof, it may become necessary for the incriminated person to justify his way of life. Therefore, it is not necessarily up to the prosecution to show that the lifestyle of the accused has no connection with his income. The system is based on sharing and allows a certain level of results. If you wish, we can supply you with information on the legal procedures already in place, in particular in France and Italy, regarding the modification of the burden of proof.
We are quite satisfied with the text as formulated and we are also considering it as an important step towards the effective fight against money laundering. The mere effect of the active involvement of the parliaments of the Member States of the European Union, an initiative of the French national assembly, signals our countries’ increased interest on this matter. Moreover, it allows us to be optimistic that the necessary legislative improvements shall take place, a response that will strengthen the existing legal framework. We have no objections to subject number one and four.
Concerning the sanctions against non-co-operative countries, we repeat our position that the obligation to impose severe sanctions is absolutely necessary. However, one must ensure an objective and fair procedure of characterising a non-co-operative country. The text itself is satisfactory. Regarding subject number three, we would like to stress the importance of establishing the share of the burden of proof concerning the legality of the origin of assets. In the case of laundering, we are happy to see that the relevant proposal is in the text. We would also like to state that our country will actively participate in the intense effort needed to establish this principle within the limits allowed in our constitution and the basic principles of our legal system.
We continue to discuss a number of issues on which we have diverging viewpoints, and it might be appropriate to come to a decision. We have mentioned the sharing of the burden of proof. We could accept this system, as the presumption of innocence and all of the rights of the defendant remain intact. At a certain point, when society observes that certain people or groups are committing illegal acts, for instance as a part of organised crime, or that they have high income but cannot prove its origin using legal means, it seems fitting that the suspects be asked to provide proof of how they acquired their wealth. I do not see how that goes against fundamental rights. Money laundering is a means, and in order to ferret out terrorist networks or criminals, we must attack it; on this matter, we might also ask ourselves where the border between terrorism and organised crime lies. We can fine-tune this tool, which makes it possible to fight against forms of crime that are very dangerous to democratic society.
Secondly, the European Public Prosecutor was originally intended to fight against fraud at the Community level, meaning mainly misappropriation of subsidies. Do we need to go further and add the crimes that are covered by the various penal laws, and not only by European law? Thirdly, I do not see how Eurojust can co-ordinate investigative action. I thought it was in charge of co-ordinating court actions at the European level. Let us hope that Europol will someday co-ordinate investigative action as well. You have the difficult task of choosing between proposals that are sometimes contradictory.
Our aim is that there be as few contradictions as possible. We want to produce a clear text, meaning a document to which we can all commit, by keeping disagreements to a minimum. Note that these are sometimes the result of mere errors in translation or comprehension. We can still make progress and we will come to decisions on certain matters when the time comes. The text that we will look over on 7 February will allow each of us to see just how far we can go, based on the progress that we will have made.
Firstly, we feel that the European public prosecutor and Eurojust are not necessarily two distinct entities, given that the latter could very well become a European public prosecutor at a later time. This possibility could be mentioned in the text. Secondly, the international nature of money laundering makes it necessary to adopt measures that reach beyond borders. At the same time, we must each avoid making efforts within our countries that are not consistent with those of others. I therefore feel it is necessary to mention international co-operation, beyond the FATF, on the part of candidate countries to the European Union and the OECD. We should not forget OSCE, which just adopted a plan for the fight against terrorism, including a component on the fight against money laundering. Lastly, would the central register of bank accounts be European or national?
Central bank account registries at the national level would already be a major step forward.
I agree with the comments regarding Eurojust. Yet you mentioned the role of the European public prosecutor "as a first step". What do you mean by that expression, exactly? Regarding the second topic, we feel it is necessary to refer to countries, rather than territories. Is the term "territory" appropriate? Should it not be defined? On the subject of sanctions against establishments in non-co-operating countries, do you mean prohibiting the founding of new companies or closing existing ones? Lastly, you mentioned mandatory penal sanctions against institutions that fail to report suspicious activities. Yet we must deal with constitutional and legal constraints, just as our British colleagues do. This topic needs to be dealt with in detail. On the 7 February meeting, it will be necessary to clearly explain the meaning of harmonisation at the legal level.
Firstly, we must aim to broaden measures so that the fight can be as international as possible, but we must also make full use of the possibilities within the European Union. We are far from that objective now, if only because the markets and financial establishments within the Union play a considerable part in these transactions. The limits we will come up against with OECD countries must not become an excuse for not going further within the Union. We can go beyond mere governmental co-operation. We can do more to improve powers within the Community, and will thereby also strengthen inter-governmental co-operation.
Secondly, regarding the modification of the burden of proof, I would call to your attention that this is not the first proposal of this kind. You may recall the directives on the fight against discrimination, which were adopted on Commissioner Vitorino’s initiative in 2000. They stated that, where a number of agreeing factors indicate that discrimination has occurred in hiring procedures, for instance, it is up to the accused to demonstrate that the factors behind his decision were legal. There exist cases involving sudden increases in income or capital movements. The mere fact that these have not been justified is suspicious in itself. The establishment or person implicated must show that the movement could not have been suspected and that his trust was violated. Likewise, an establishment must be able to prove that the funds did not result from fraud.
Thirdly, I already set forth a concrete proposal regarding supervision within the Union. The revision of the directive on money laundering, following a decision on the part of the Parliament and the Council on 4 December 2001, makes improvement possible. However, we will once again be hindered by the fact that the Commission’s only prerogative is to ensure that the Directive is incorporated into national law. Inspections on the implementation of the directive are still poorly organised, especially concerning the reporting by financial institutions of capital movements with unidentified sources. By creating a Community-wide supervisory body, we would achieve concrete progress and encourage greater co-operation. We could either create a specific body, or entrust the Commission with this executive power, as has been done in the area of competition, for instance. This point could remain in the section on prudential laws, or also be incorporated into the section on transparency.
We feel that we have taken that desire into account in Point 4, in particular regarding reinforcement of prudential supervision and regulation, when we limited its perimeter to clearinghouses and companies involved in capital and securities settlements that create major problems for regulatory authorities. Later, we intend to extend this to a supranational body. I would also remind you that penal sanctions against non-reporting establishments already exist in countries such as the United Kingdom. Moving to your next question, we maintained the distinction between non-cooperative territories and countries, as defined by the FATF, since certain territories are legally dependent on a State, but actually enjoy a great deal of freedom from a legislative standpoint. Lastly, the sanction mechanisms proposed are based on suggestions on the part of the FATF, which has asked that Member States apply sanctions against the nation of Nauru.
I accepted your invitation because experience has taught me how important it is to create opportunities for direct contact between people on the front lines and the legislators. I nonetheless have some comments to make regarding the draft declaration.
Firstly, as regards the topic of transparency, I do not know of a single case of economic crime in which the perpetrators did not make use of forged documents or accounts. You must emphasise the importance of the connection between transparency and truth in accounting. We will not be able to fight modern forms of crime if we do not ensure maximal protection of accounts, including bills, regardless of whether the forgery caused direct or indirect damage. I suggest that you highlight the revolutionary step that was recently achieved through the mandatory identification of the customer. In that area as well, it is necessary to provide protection and clear new hurdle by agreeing that a document that lists the name of the customer, when drawn up by a financial institution, holds up in a court of law. As a result, anyone who knowingly draws up or uses a forged document must be punished.
Regarding non-cooperative territories and countries, it is true that many of the violations involve companies established throughout the world, but based in one of these non-cooperative territories. It is important to emphasise that such establishments will not be able to open bank accounts in regulated countries, as they are the most typical tool used in money laundering.
As pertains to judiciary co-operation, we all know that it has been the weakest link for decades. First, Article 10 of Strasbourg Convention Number 141 against money laundering has allowed States to contribute to proceedings in a foreign country of their own will, since 1990. It is high time to turn that possibility into a requirement. Secondly, mutual aid in judiciary matters has always been viewed with wariness. We would make a bold display of progress by invoking a highly meaningful legal proposition: in dubio pro rogatorio. We all believe in the principle in dubio pro reo. While it is true that the presumption of innocence should be respected by the court once evidence has been gathered, any doubt should be enough to motivate requiring co-operation with the authority. A number of delegations stated their concern over the modification of the burden of proof, but let me remind you that it is nothing new. How many Parliaments have already ratified the Vienna Convention of 1988? Article 5, Paragraph 7 of that convention calls for it. It is important not to confuse compliance with the hallowed principle of presumption of innocence in the context of proceedings against a person, in personam, with proceedings that involve only an object, in rem, for instance one million euros or a car. The matter has already been resolved by the European Convention on Human Rights. I hope that I have allayed your concerns. Yet, moving beyond the European warrant for arrest applying to individuals, why do you not give consideration to a European warrant for seizure? It would not affect the individual, but rather the property, all the while respecting the owner.
After decades of wariness, we must clearly show that we have rounded a new corner, not only within the Union, but also towards other countries. The mechanism used to legalise all documents received as part of international co-operation has been discarded, in practice, by all of the States. We must officially assert that this mechanism is defunct by authorising States to reuse evidence supplied by another State as part of mutual aid in judiciary matters. This goes back to prehistoric times. It is up to you to state whether the age of wariness is behind us.
Lastly, a number of you mentioned the protection of the European Union’s financial interests. Two aspects still remain very vague. Firstly, fraud against the States and the Union’s financial interests must fall under the category of major violations related to money laundering. It is also necessary to organise co-operation between countries in order to allow sequestration and mandatory release to foreign authorities of all proceeds from tax fraud, customs fraud or misappropriation of State subsidies, even including patrimonial assets.
Olivier de BAYNAST
As an expert from Eurojust, I fully support these comments. Eurojust needs you to put an end to what has truly become the piling up of measures and systems. In the development of its judiciary and investigative systems, Europe has been trying to outrun its problems for the past few years. Creating new institutions without going the full distance does not make it any easier to solve one’s problems. The European public prosecutor should not come as an addition to the European Anti-Fraud Office, Europol and Eurojust. Through the Treaty of Amsterdam, Europol has just been given the possibility to have access to operational powers. The problem is that the various States do not supply it with the information needed to fulfil its duties. I do not think that the European public prosecutor will be a magic formula that makes political will be followed through in reality. We will not be excused from making the efforts needed to be taken seriously.
Eurojust is not merely an information exchange agency. This tool will make it possible for a national representative not only to exchange information with his counterparts, but also to ask the prosecutor to launch investigations and proceedings. The States, however, do not seem concerned about incorporating the necessary texts into their national legislation. We are therefore waiting, without any idea of competition whatsoever, on the contrary, with a concern for consistency, for the parliaments to ensure that international and European commitments be made as effective as possible through incorporation into their respective laws. We are far from the finish line and I can see that many commitments are made without giving any thought to their implications.
You spoke about the need to avoid duplicates. If your appeal calls for the creation of a European public prosecutor on the basis of corpus juris, meaning to fight against fraud in the financial interest of the communities, but also for the whole of the field covered by the European warrant for arrest, in other words, Eurojust’s jurisdiction, we will see an extremely confusing phenomenon of overlapping. We cannot maintain both a body for co-operation and a federal body.
I have compiled a list of all of the relevant legal instruments on the topic at hand today. The list of conventions awaiting ratification is very long. In the interest of consistency, we need to ensure not only that the institutions created can work, but also that the conventions negotiated can be enforced. For this reason, the Strasbourg Convention is particularly relevant. This appeal could have a more technical and, therefore, a stronger character if these components were mentioned. Similarly, the Convention on Mutual Aid in Criminal Matters (May 2000), which is a response to the authors of the Geneva appeal and which was regretfully eliminated from the declaration, has still not been ratified by a single Member State.
As you stated, new structures and conventions are "piling up" and we hope that officials will look over what has already been decided and ratified. For example, the adjustment of the burden of proof has existed since 1988. I found a paradox in the wording of the third topic. Europol and Eurojust are still unfolding. There is still a need to assert the role of these two bodies in the areas of co-ordination and support. Europol’s powers in the field of money laundering were not clearly established until November 2000. It is necessary to focus on the co-ordination between these two organisations before asserting the role of a European public prosecutor, which is currently being entrusted with an extremely broad task. We need the support of the Member States.
Jean de MAILLARD
I agree in part with what was just said. It is necessary to make choices and, in particular, to prevent the piling up of measures and institutions from ultimately concealing a lack of political vision. At the last meeting, I reviewed the two approaches to European matters. The creation of Europol and Eurojust are the result of an inter-governmental rationale, one based on the principle of the third pillar. Governments seem more easily inclined to creating inter-governmental co-operation systems because they think it will allow them to keep a certain amount of control. Someday, it will be necessary to reflect upon the sharp increase in judiciary and domestic cases, based on the principle of the first pillar. While on this topic, there exists a draft directive, based on Article 280, as the Commission has noted that, since 1995, the States have been incapable of ratifying the conventions that they previously signed with spirit and enthusiasm regarding the protection of European financial interests. The States will have to declare, one day, what they intend and do not intend to do. The European public prosecutor is part of the first pillar thinking, and is thus European. The development of institutions such as Europol and Eurojust are part of the intergovernmental line of thought, even if they do have a role to play and are not overrun by the European public prosecutor. We cannot be as effective in the third pillar as in the first.
I also regret the text’s defensiveness where the fight against money laundering is concerned. It includes a set of measures—some clear and warranted, some more vague and difficult to implement. The adoption of certain measures that are too vague will not reflect agreement on the part of all the parliaments, but will rather serve to conceal disagreements. I would like to see a more aggressive approach. Rather than merely calling for investigative, judiciary or prudential measures, I would like to see you adopt measures on good governance. It is too early to try to channel such measures toward larger bodies, such as the OECD, as it would make the process more difficult. The European Union is, in my view, a fitting environment, provided that the will and the capabilities are there.
Lastly, I echo Mr Harlem Desir’s proposal to transfer from the fourth to the first topic the idea of a supervisory body for clearinghouses, a tool that would prove essential in the monitoring of capital flows. The European Union should and could set up a system requiring that all trans-national capital flows be filtered through the clearinghouses, and instituting European inspection powers. Presently, there exist two international clearinghouses: Clearstream and Euroclear. Both are located within Union borders, but neither one is subject to inspection. Other financial transactions do not transit through any clearinghouses. These severe inadequacies are undoubtedly the cause of many of the difficulties we are facing in the fight against criminal money. Supervision is possible and would allow judges and investigators to carry out investigations that are currently impossible, while still respecting individual liberties. It is also important to ensure that probes can be carried out on people. The document contains a few proposals to this effect, but they could go even further. I share your view regarding the bank account register. The French registry is extremely helpful during financial investigations. Entities such as trusts and pension funds need to be listed in a register, along with the names of their customers. Similarly, when the said structures maintain accounts, these need to be made public.
The text already contains some of your suggestions, in particular, the last one, concerning the registry. We will have to come up with wording that is easier to understand.
Jean de MAILLARD
Let me add that a European publication standard will be needed, so that everyone can work on the same basis in the different States.
Along with the other users present, I am left with a feeling of frustration and ineffectiveness after reading your objectives. The ambiguity over the real objectives of the system to be set up has given rise to a number of concerns. Each Member State is split between the desire to meet all of the objectives in terms of effectiveness and the desire to safeguard individual liberties. We will not be able to overcome this obstacle unless we set forth clear objectives. Political agreements have been signed to fight against organised crime, drug traffics and terrorism. Based on this consensus, the various parliaments now need to agree on the instruments that will make it possible to be effective in all areas. We need to prevent vanity from dictating our ambitions, as that would continuously lengthen the list of violations targeted, or even revive the debate over certain institutional aspects of European construction. The proposals presented in the draft declaration are already in place in several countries, even though they may seem difficult to implement for some of you. It will be impossible to enforce them unless they are clearly shown to serve the main objectives of the European Union.
Regarding sanctions against non-cooperating countries, the section that covers the entry of such establishments inside Union borders does not mention the dealings of their correspondents. Yet therein lies a very real concern, one that is also part of the proceeding point. On the subject of the third topic, it would be easier to reach a consensus if financial crime and the harmonisation of financial offences were limited to the Union’s main objectives. In conjunction with the former Head of the French Judiciary Investigation Force, I drew up a report intended for the Minister of the Interior, which suggested that Europol should serve to foster the involvement of European institutions. Europol has since been endowed with a specific responsibility in the area of money laundering and would be capable of effectively co-ordinating European financial intelligence efforts.
The last point in the fourth topic involves the introduction of a penal sanction against professionals that fail to report suspicious activity. In certain countries, heavy sanctions already exist. Harmonisation appears to be one way to improve overall effectiveness. It should be added that the failure to report must be intentional and that the requirements relate to money laundering performed by criminal organisations. Lastly, the exchange of professional information between countries within the Union is currently being slowed down by the various national provisions. For instance, one banking firm is having the hardest time in determining the financial standing of its various European branches. This point is in contradiction with the prudential requirement to perform monitoring on a consolidated basis.
Thank you all for your patience and for the quality of your contributions. On the basis of the ideas presented, we hope to propose a new version of the text within the next eight to ten days. I ask that you then inform us of your comments and objections quickly. That will allow us to organise the 7 February session as efficiently as possible, devoting all of the time needed to clarifying the points that still pose problems for you.
The session is adjourned at 5:10 PM.