Автор: Пламен Панайтов
Directive (EU) 2018/1673 of the EP and of the Council of 23 October 2018 on combating money laundering by criminal law updates the EU criminal law regulation on fighting money laundering.
First, the text underlines that, similarly to the other Directives adopted after the entry into force after the Lisbon Treaty based on Art. 83 TFEU, Directive (EU) 2018/1673 also does not apply to all Member States, in this case to Denmark and Ireland. It clarifies the relationship between the sources of EU law and those of international law which regulate the combat against money laundering and highlights the primacy of the first over the second.
During the study the main particularities of the EU criminal law regulation on money laundering are systematised and elucidated. The first of them connects to the definition of the standards for its criminalization. The proper interpretation of the distinct variants of the money laundering presupposes taking into consideration that this offence is a form of "subsequent criminal activity". The second particularity relates to the sanctioning policy of the EU on money laundering. The EU legislator rightly regulates a far more deployed sanctioning regime in Directive (EU) 2018/1673 in comparison with the regime under Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and proceeds of crime. The new regulation differs depending on whether natural persons or legal entities are concerned. The third particularity relates to the obligation of the Member States - along with conducting the criminal prosecution - to ensure the freezing and confiscation of the acquired property and the instrumentalities used or intended for use in the commission of the examined offences. The fourth particularity concerns the operation of the national criminal law of the place. The fifth particularity consists in the requirement to provide competent authorities with means of investigating money laundering, such as those used in cases of organised crime or other cases of serious offences.
The study makes it possible to conclude that the assessment of the update of the EU criminal law regulation on money laundering performed through Directive (EU) 2018/1673 cannot be unambiguous. On the one hand, it is to support the text as better systematised and significantly improved. However, on the other hand, it does not give an adequate response to all the new challenges in the combat against money laundering, especially those related to the emergence in recent years of new forms of the commission of this crime, including using virtual money.
Finally, the study outlines directions in which, in compliance with Directive (EU) 2018/1673, Bulgaria needs to improve its national legislative framework.