Sixth sense


Right, here’s a little quiz for you: as of today, it’s 78 days until what?  Points deducted if you simply say, “Thursday 3 December” – although points added if you know that that’s my mother-in-law’s birthday [note to self: remind husband].  In all the excitement about MLD5 and Brexit and the thrill of breaking international legislation (oh, plus a pandemic – and please can we stop calling it a “global pandemic” because pandemos already means everybody…), we have clean forgotten to get worked up about MLD6.  And MLD6 requires that “Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 3 December 2020”.

As you doubtless remember from the giddy days of October 2018 when MLD6 came into being, this is a slightly different MLD to the usual ones: most of the others have dealt primarily with AML concerns – who is in the AML family, what CDD they need to do, what the risk-based approach means, who should be considered a PEP, and so on.  But MLD6 is all about the crime itself: what exactly is money laundering, who can be punished (and how much) for doing it, and what to do about that pesky dual criminality.  And yes, you’re right: these are Big Topics.  Which have been entirely overshadowed by MBILP*.  And no self-respecting MLRO can go a moment longer without putting MLD6 firmly back on the radar – remember, it’s only 78 days away.

I can’t possibly go into all the detail here, but (a) MLD6 is only sixteen short Articles so doesn’t take long to read in full, and (b) oh, go on then, here are the highlights:

  • Article 2 provides a harmonised list of the 22 offences that are considered to be criminal activity [i.e. a predicate offence that can lead to money laundering] – a Member State can add more, but this is the minimum, and the list includes trafficking in almost anything, environmental crime, tax crimes and cybercrime
  • Article 4 confirms that “aiding and abetting, inciting and attempting” money laundering are also criminal offences
  • Article 6 talks about aggravating circumstances [no, not being a liberal Englishwoman alive in 2020, although that is pretty aggravating], including being a member of an organised crime group, or being an “obliged entity” (i.e. a business covered by AML obligations) and still indulging in money laundering, bringing us to…
  • Article 7, which drops the bombshell that “legal persons can be held liable for any of the [money laundering] offences”, and
  • Article 10 introduces information-sharing requirements between jurisdictions so that a criminal prosecution for connected offences can take place in more than one EU Member State.

Yes, it’s quite the directive.  As for what the UK is doing about it, your guess is as good as mine (and almost certainly contains fewer swear-words).

* MLD5, Brexit, international legislation and pandemic

Thanks to James in Cornwall for reminding me to get my dander up about how MLD6 has been overlooked