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Money Laundering Counter-Measures in the European Union : A New Paradigm of Security Governance Versus Fundamental Legal Principles :  A New Paradigm of Security Governance Versus Fundamental Legal Principles - Valsamis Mitsilegas

Money Laundering Counter-Measures in the European Union : A New Paradigm of Security Governance Versus Fundamental Legal Principles

A New Paradigm of Security Governance Versus Fundamental Legal Principles

Hardcover

Published: 2003
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The past fifteen years witnessed the emergence globally of a plethora of legislative measures aimed at countering money laundering. These developments have been inextricably linked with the growing international focus on newly perceived and/or prioritized global security threats such as organized crime and terrorism with money laundering counter-measures deemed essential to counter these threats. Taking these developments into account, this book examines in detail the evolution and content of money laundering counter-measures in the European Union. These measures constitute a new paradigm of security governance, achieved through three principal methods: criminalization, consisting in the emergence of new criminal offences; responsibilisation, consisting in the mobilization of the private sector to co-operate with the authorities in the fight against money laundering; and the emphasis on the administration of knowledge, through the establishment of new institutions, the financial intelligence units, with extensive powers to administer a wide range of information provided by the private sector. This paradigm may pose significant challenges to fundamental legal principles and to well-established social structures and the book attempts to address this balance. This up-to-date analysis includes the provisions of the new EU money-laundering Directive which was formally adopted in December 2001.

Preface and Acknowledgementsp. xi
Introductionp. xiii
The Reconceptualisation of Security in the International Arena and its Legal Impact: The Case of Measures against Transnational Organised Crimep. 1
(In)securityp. 1
Threats and beyond: reconceptualising security in the risk societyp. 3
The securitisation of organised crime: the threat and the measures to counter itp. 7
The threatp. 7
Emergency measures in the prevention statep. 8
Increasing criminalisation and displacement in punishmentp. 8
The responsibilisation strategyp. 12
The centrality of knowledgep. 13
The challenges of 'security' measures against organised crime to fundamental legal principles--national experiencesp. 14
Criminal lawp. 14
Constitutional principles and human rightsp. 16
Organised crime and the emergence of a transnational security field: new actors and global measuresp. 19
From local to global: the concept of transnational crimep. 19
The European Union as a security actorp. 21
The securitisation of transnational organised crime as an analytical framework for the emergence of a global anti-money laundering regimep. 24
The Securitisation of Money Laundering: The Phenomenon, the Threat and the Evolution of Counter-measures at the International Levelp. 25
The phenomenonp. 25
The strategyp. 30
The blurring of boundaries and the securitisation discoursep. 33
Threat and counter-measures: the case of the United Statesp. 36
The 'securitisation' of money laundering in the international arena: criminalisation and confiscationp. 40
The United Nationsp. 40
The Council of Europep. 44
The securitisation of money laundering in the international arena: preventionp. 47
The Basle Committeep. 47
The Financial Action Task Forcep. 48
Concluding remarksp. 50
Money Laundering Counter-measures in the European Union: History, Content and Evolutionp. 52
The 1991 Directive: Backgroundp. 52
The European Community and drugsp. 52
The Directive: rhetoric and justificationp. 54
The controversy over the legal basisp. 56
The Community and criminal law in the making of the Directivep. 58
The 1991 Directive: the contentp. 63
Rationale/securitisationp. 63
The strategyp. 64
The prohibition of money launderingp. 65
The duties of credit and financial institutionsp. 68
Scope ratione personaep. 68
The 'know your customer' principle: customer identification and record keepingp. 69
Suspicious transaction reportingp. 72
Due diligencep. 74
Refraining from transactionsp. 75
Tipping offp. 76
Facilitating factors: Exoneration from liabilityp. 76
Organisational duties: internal control and awareness mechanismsp. 77
Sanctionsp. 78
Extending the application of the Directive beyond the European Unionp. 78
Generalp. 78
Extension to EFTA/EEA membersp. 79
Extension to the future member states of Central and Eastern Europep. 79
Extension to offshore jurisdictionsp. 82
Extension to other third countriesp. 85
Extending the provisions of the Directive: backgroundp. 86
The Commission proposalp. 86
The extension of the list of predicate offencesp. 87
The extension of the ratione personae scopep. 89
Revisions in the field of customer identificationp. 92
The policing aspectp. 94
The negotiations: the main issuesp. 95
Generalp. 95
The scope of the money laundering offencesp. 95
The extension of the ratione personae scopep. 96
The legal professionp. 96
Other professions and personsp. 97
The role of the Commission and OLAFp. 98
The finally adopted text: the 2001 money laundering Directivep. 98
Justification and conciliationp. 98
The money laundering offencesp. 99
The dutiesp. 100
The extension of the duties to other professions and personsp. 101
Security Governance through Criminalisation: The EU Money Laundering Offencesp. 103
Introductionp. 103
Money laundering as an ancillary offencep. 103
Interest protected by lawp. 105
Actus reusp. 107
Mens reap. 110
The special case of legal feesp. 114
Burden of proofp. 115
Predicate offencesp. 117
Liability of legal personsp. 120
Conclusionp. 123
Security Governance through Responsibilisation: The Imposition of Duties on the Private Sectorp. 126
Introductionp. 126
The banker-customer relationship prior to the money laundering Directive: bank confidentialityp. 126
Foundationp. 126
Common lawp. 126
Civil lawp. 127
Limitsp. 128
Professional confidentiality in bank supervision: the EC frameworkp. 129
The change: the duties of credit and financial institutions under the 1991 Directivep. 132
Justificationp. 132
The dutiesp. 133
The 'know your customer' principle: identification and record keepingp. 133
The duties of co-operation: suspicious transaction reporting and associated obligationsp. 137
Suspicious transaction reportingp. 137
Generalp. 137
Suspicious transaction reporting: the example of the United Kingdomp. 137
Unusual transaction reporting: the case of the Netherlandsp. 139
Good faithp. 140
Reporting by supervisory authoritiesp. 141
Due diligencep. 142
Refraining from transactionsp. 142
Tipping offp. 143
Organisational dutiesp. 146
The extension of the duties to other professions by the 2001 Directive: the case of the legal professionp. 146
The emergence of 'responsibilised' citizens: active citizenship as security governancep. 151
Security Governance through the Administration of Knowledge: The Emergence of Financial Intelligence Units in the European Unionp. 155
Generalp. 155
Categorisationp. 156
The independent model: the Netherlands (with notes on Greece)p. 156
The administrative model: Francep. 161
The police model: the United Kingdom (with notes on Finland)p. 163
The judicial model: Luxembourg (with notes on Portugal)p. 168
An attempt at synthesisp. 169
International co-operationp. 170
Memoranda of understanding (MoUs)p. 170
The Egmont Groupp. 171
The United Nationsp. 173
Developments in the European Unionp. 175
Backgroundp. 175
The 2000 third pillar Decisionp. 176
A centralised database and the role of Europolp. 178
The challenges for human rightsp. 179
Privacy/data protectionp. 179
Fair trialp. 182
Conclusionp. 182
Conclusionp. 184
Bibliographyp. 189
Indexp. 205
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9789041121318
ISBN-10: 9041121315
Series: European Business Law & Practice S.
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 240
Published: 2003
Publisher: Kluwer Law International
Country of Publication: NL
Dimensions (cm): 24.13 x 15.88  x 1.91
Weight (kg): 0.5