Money laundering

from Wikipedia, the free encyclopedia

Money laundering ( Switzerland and Austria also: money laundering ) describes the process of smuggling illegally earned money or illegally acquired assets into the legal financial and economic cycle . Since the money to be “laundered” comes from illegal activities such as corruption , bribery , robbery , extortion , drug trafficking , unauthorized arms trafficking or tax evasion , its origin should be concealed.

Money laundering is an international, cross-border phenomenon and a criminal offense, both under German criminal law and that of other countries. The fight against money laundering is seen as an important element in the fight against organized crime, including in connection with the financing of terrorism . In current economic growth models, money laundering is seen as one of the long-term and sustainable growth inhibitors.

Objectives and methods of money laundering

The starting point is the possession of illegally acquired money, for example through the arms trade , drug trafficking , smuggling , corruption , bribery , human trafficking , robbery , extortion or tax evasion .

Money laundering goals

The money laundering activities are intended to conceal the illegal origin of money. The sums of money are to be withdrawn from the access of the law enforcement authorities or the tax authorities by transferring proceeds from criminal activity into the legal economic cycle through business transactions that are as inconspicuous as possible . This is attempted, for example, through the purchase of real estate , company shares , works of art or securities or through normal consumer transactions . In practice, those involved often disguise their transactions by using mailbox companies , shadow banks , companies in tax havens or covert trusts . This also enables the accumulation of economic resources from crime based on the model of the Mafia . Conversely, by uncovering money laundering, investigators discover the criminal offenses and acts on which these concealment acts are based and can thus continue to act.

Money Laundering Procedure

The United Nations Office on Drugs and Crime distinguishes three phases in the money laundering process:

  1. Infeed (English placement )
  2. Concealment (English layering )
  3. Integration (English integration )

Infeed (placement)

The first step in money laundering is feeding the amount of cash obtained through criminal offenses into the financial or economic cycle . This is usually done in smaller amounts so as not to attract attention (so-called “ smurfing ”).

For this purpose, visits to casinos , horse races , expensive hotels or exchange offices , payments into bank accounts , the construction industry and the purchase of (especially flexibly sellable) assets (e.g. securities , luxury items , works of art , automobiles, boats, yachts, Jewelry, vouchers). For example, works of art bought with dirty money are deposited as collateral in order to borrow new clean capital, with the works of art being stored in a bonded warehouse. Often, invoices are issued and paid for services that were not performed at all. Online sports betting is used for money laundering in many countries. Cash-intensive hotels and restaurants are also used as a cover for money laundering. Sports clubs can also be used for money laundering.

Concealment (layering)

In the second step, the origin of these assets is concealed. To do this, the money is pushed back and forth in a large number of transactions so that the criminal origin can no longer be traced or proven. This serves to cover up traces; with each additional wash, the concealment becomes more successful.

Means of concealment are, for example, bogus transactions and foreign payments using offshore banks , mailbox companies , bogus companies and straw men, often in countries with little protection against money laundering or bribery officials. This also includes forgeries or backdated contracts. When setting up letterbox or bogus companies and parking capital including further concealment, perpetrators need the help of a bank and its contacts. At the moment it can be legal to set up a letterbox company, but it only becomes criminal when, for example, drug money is laundered. Classic examples of global money laundering in connection with trusteeships are many of the business relationships of the “Panama Papers”, the “Odebrechts Scandal” and the “Russian Laundromat”. There are innumerable opportunities for money laundering on the art market. Works of art are auctioned, for example, in auction houses completely overpriced in order to conceal the path of money and on the other hand to give the seller a bribe. This type of bribery is called “Yahui” - “elegant corruption” in China.

For the purpose of asset concealment, a worldwide covert asset preservation and consulting industry operates not only legal tax optimization but also the lucrative circumvention of regulations as well as criminal activities such as money laundering, corruption , arms and drug trafficking as well as terrorism financing or their concealment. With the help of tax havens and the exploitation of loopholes in the law, members of this financial advisory industry create their own legal system and sometimes do massive lobbying work to open up new loopholes and to abolish criminal offenses and formal requirements . For decades little was done against money laundering, corruption or this lobbyism, although this caused extreme damage to states and taxpayers and made only a few elites rich.

From an international point of view, such lobbyists strive to redesign state control systems in their own way, to circumvent them or to use the financial service providers or banks themselves as control, documentation or register organs. Bank organs are then sometimes authorized to sign for companies so that investors remain anonymous and are not named in transparency registers. After the publication of the Panama Papers , Luxemburg-Leaks , Swiss-Leaks and Bahamas-Leaks , an international reform process began, as it became publicly clear how susceptible financial service providers are to money laundering and tax evasion and any involvement of bank employees in the establishment of letterbox companies and the representation of companies and offshore companies that represent or anonymize customers or the issuing of official licenses and approvals is internationally illegal. Many tax and legal systems also have very deliberate regulations so that taxes can be evaded or money can be transported abroad.

For money laundering also transactions are crypto-currencies (like Bitcoin ). Because this infrastructure is organized in a decentralized manner, it cannot easily be controlled by state bodies. Money flows from crypto currencies cannot be blocked and are difficult to assign to the actual person. Often times, gullible consumers are used to help launder money from cybercrime . In Germany alone, according to the Federal Criminal Police Office, thousands of consumers are abused by criminals for money laundering every year, with the volume of money laundering steadily increasing. Money is channeled through many countries or regional authorities with the help of quickly established letterbox companies or Internet start-ups - in order to cover up traces.

Terrorism financing, illegal drug and arms trafficking , white-collar crime and illegal tax evasion are crimes that are difficult to control because of the high profits, camouflage and lobbying of the offshore industry. The obfuscation systems and lobbying particularly concern the pretending of “due diligence procedures” or duties of care for the identification and documentation of legal transactions by the financial industry and the rejection of effective methods (formal requirements, judicial documentation, etc.) as “anti-business”.

Integration (integration)

After the origin of the money can no longer be determined, the “laundered” money is used like the result of legitimate business activity. For example, company shares, real estate or life insurance are acquired.

Methods of Combating Money Laundering

Know-your-customer principle

The most important, most effective and cheapest instrument for combating money laundering is the application of qualitative formal requirements for documenting legal transactions and preventing them from being concealed (e.g. by mailbox companies , tax havens , back-dating of contracts, blank signatures, hidden identities). In this way, legal transactions should be made comprehensible and controllable for the authorities through judicial or notarial protocols, meaningful registers or the obligation to authenticate signatures, so that the actual economic purpose of the legal transaction can be identified. These documenting formal requirements for legal transactions such as real estate, corporate capital or company shares are intended to prevent the simple and non-transparent shifting of capital. In many countries, certain legal transactions such as changes in company structures, capital shifts in companies, real estate or company registrations have to be recorded by a court or notarized in order to prevent bogus transactions , forgery or backdating of contracts. Existing loopholes are used immediately for money laundering. In order to prevent money laundering, tax avoidance and corruption in the long term, it is crucial that an independent, state-controlled intermediary is involved in important legal transactions, who looks after the state's interests (identification, documentation of legal transactions, tax fairness, transparency, etc.) and is economically independent. Nobel laureate in economics, Joseph Stiglitz, and the Basel criminal lawyer, Mark Pieth, point out that the fight against corruption is not carried out consistently due to extensive lobbying work and that this has prevented effective documentation requirements.

In many countries, however, formal requirements have been relaxed or repealed in recent years in order to be able to carry out transactions in a "business-friendly" manner, according to business associations. In contrast to the community and consumers , large companies or some politicians often have no real interest in effective methods of combating corruption, obfuscation and money laundering, or they exert pressure on bodies that monitor legal security . The US state of Delaware is a particular model for a money laundering paradise with its combination of minimal taxes and fees, the possibility of registered companies with secret owners and, most importantly, free-form internet or mobile phone start-ups without effective identification of those involved.

Basically, virtual currencies, online banking, online gambling, online company formation or administration, online markets and online auctions are becoming increasingly important for money laundering and money laundering offenses such as tax evasion and fraud . Money laundering is also carried out through the anonymous buying and selling of works of art, real estate and company shares, including the usual voluntary loss-making deals, possibly also via simulated artificial markets. This also applies to financial service providers in the sale of risky securities and other financial products.

To combat money laundering, intensive work is being carried out on the establishment of national registers in which companies must disclose their true, beneficial owners. The implementation is very difficult because in cases where, for example, mailbox companies , tax havens , form or online company start-ups or sham managing directors are involved, the reporting obligation can easily be bypassed and is therefore de facto "voluntary". In spite of this register, law enforcement authorities will often fail because of covert trusteeships. In many countries there are already effective registers (e.g. on the commercial register, land register, trade law, foundations, funds, associations), where the respective natural or legal persons are clearly traceable or the alleged person due to the mandatory identification of the interveners by judicial organs the actual process is checked by a court, thereby preventing misuse. Money laundering can only be prevented if these organs are legally and economically independent of the money laundering perpetrator and this independence is adequately safeguarded. From an international point of view, these judicial, official or notarial bodies or compliance departments in companies are often poorly paid, bound by instructions, not (economically) independent or deliberately badly organized in order not to be able to monitor compliance with the provisions. Whether there can be fundamentally positive effects from compliance departments that are embedded in the corporate structure to prevent illegal but lucrative actions within the scope of the corporate purpose is controversial, because companies generally maximize their self-interest. Reliance on emails, information from any financial agents, information from websites or government registers based on unchecked information or electronic signatures or online entries is grossly negligent. The internationally organized money laundering industry in particular works in a division of labor.

Furthermore, anonymous economic transactions and payments are to be prevented. The know-your-customer principle (KYC) is used for this. Banks , insurance companies , lawyers , auditors, online casinos, casinos, jewelers, etc. are obliged to identify their customers before starting the business relationship (for the procedure, see: legitimation check ) and to inquire about the beneficial owners . This method is considered to be easy to circumvent , especially by mailbox companies and covert trusteeships. From an international perspective, there is no uniform, enforced standard for the know-your-customer principle (KYC).

Basically, there is the problem that companies such as banks, insurance companies, lawyers, jewelers, real estate agents, art dealers, merchants or even casinos naturally maximize their economic purpose and their self-interest does not lie in combating money laundering or creating transparency or legal security . Accordingly, German banks are also confronted with considerable money laundering allegations despite extensive compliance activities. It is therefore not surprising that a global and secretive asset management and consulting industry has emerged for the purpose of asset concealment. These consulting firms not only serve the purpose of tax optimization, but also primarily to circumvent relaxed formal requirements and a large number of criminal activities such as money laundering and corruption .

The due diligence of banks in establishing customer identity was described in 2001 by the Basel Committee on Banking Supervision. Customers are to be kept by all their first names in order to monitor the possibility of opening different accounts by the same person. In addition to establishing the identity, the bank must also find out the reason for starting the business relationship and check its plausibility . In international practice, however, identification procedures and the relevant regulations are deliberately overlooked by offshore consultants or the financial industry involved in offshore consulting. In the case of many financial service providers, money laundering despite all compliance facilities or related announcements and provisions is concealed. In addition, the risk of illegal manipulation increases sharply because banks and the financial industry are transferring more and more IT areas to external service providers and outsourcing these areas themselves. This also applies to external data management. This is also associated with business with false, falsified or falsified bank accounts. With false identities or false documents or fabricated data, online accounts, so-called "bank drops", are created and then used for money laundering. Whereby, of course, legal security and balance, especially with new markets and technologies, need high-quality and intelligent legal law on the difficult line between suitable framework conditions and overregulation.

In some cases, banks also work together with offshore gaming providers where money laundering is suspected. According to estimates, 85% of money laundering is carried out through banks, although there are still many cash carriers, especially with regard to terrorist financing. According to the US drug enforcement agency DEA, the popularity of Bitcoin as a means of money laundering is expected to increase in the international drug trade . From an international perspective, there are anonymous payments on the Internet, the use of digital currency such as Bitcoin, concealment with fake companies or false identities founded for this purpose, the use of companies registered by financial service providers, cash transfers through transfer banks or hawala banking or cash couriers, but also anonymous Internet auctions are tried and tested ways to bypass verification. In order to prevent this, a strict identity check of the parties involved, the creation of the relevant formal requirements and the involvement of an independent state-controlled intermediary are necessary in important legal transactions .

The head of the Austrian financial market supervisory authority, Helmut Ettl, presents a fundamental European three-pillar model to prevent money laundering against the background of the developing European banking union - consisting of an "intelligence unit" for analysis and strategy development, a "prevention unit" to ensure due diligence To enforce prevention, and an "enforcement unit" that identifies specific suspected cases of money laundering and sanctions them if necessary.

Monitoring of accounts and transactions

The continuous monitoring of accounts and transactions for suspected money laundering is required by law for banks and other financial service providers - in Germany by the Money Laundering Act (GwG). Each bank has to appoint a money laundering officer for this purpose.

Reporting suspicious transactions

Regardless of the amount and type of transaction ( cash or non-cash ), every insurance company and every credit institution is obliged under Section 43 of the GwG to file a suspicious transaction report against their own customers in the event of suspected money laundering . Suspicious transaction reports must also be submitted if facts suggest that the contractual partner is not complying with its disclosure obligations under Section 11 (6) sentence 3 of the GwG. This includes, for example, the fact that the contractual partner does not disclose the purpose of the business relationship or the name of the beneficial owner (s) as part of the know-your-customer process.

But also lawyers , notaries , auditors and tax consultants have been obliged to report since August 15, 2002 if they do not provide legal advice .

Money laundering indicators are:

Criticism of the reporting behavior of notaries

Notaries do not report suspicious activity because of the special trust they have with their clients. In order to increase the number of reports, the legislature changed the Money Laundering Act on January 1, 2020. In the future, a catalog of particularly money laundering-relevant cases will be laid down in a statutory ordinance, in which notaries, lawyers and tax advisors must always report to the FIU. The Federal Chamber of Notaries campaigned for this change in the law.

Although notaries are subject to strict supervision by the regional court presidents ( Section 92 BNotO ), it has been criticized that notaries are barely controlled in Germany with regard to possible money laundering, despite their central role in real estate transactions, which often involve money laundering. Representatives of the “Bürgerbewegung Finanzwende” are therefore calling for greater control of notaries in connection with money laundering.

Asset recovery

In addition to identifying and punishing the perpetrators, effective combating and prevention of money laundering requires that the material benefits of the crime are siphoned off in order to deprive the perpetrators and to compensate for the damage suffered by the victims. Once assets have been traced, they must be secured, and the final confiscation and use, and possibly also the division of assets, regulated. In addition to criminal and civil law instruments at national level, such as forfeiture and adhesion proceedings or civil action for violating a protective law ( Section 823 (2 ) BGB ), there are also provisions for cross-border cooperation, such as the law on international mutual legal assistance in criminal matters (IRG) or the Convention against Transnational Organized Crime (UNTOC).

Criminal Statistics Germany

Recorded cases of money laundering in the years 1994-2019 as a frequency number (per 100,000 inhabitants)

The reported money laundering incidents increased from 198 in 1994 to 11,541 in 2016 and fell to 9,764 by 2019. The frequency (cases per 100,000 inhabitants) increased from 0.2 to 14 by the peak in 2016, which corresponds to a factor of 70. This is an extraordinary increase because overall crime decrease is observed and the Total offenses fell by 21% over the last three decades.

With a total of 5.5 million (2018) recorded criminal offenses , recorded cases of money laundering correspond to a share of well below 1%. The clearance rate is high at around 90%. However, due to the virtuality and anonymity of online banking services, banking secrecy, which is very strict in some countries, and the transfer of money to foreign tax havens , the BKA suspects a very large number of unreported cases . According to an extrapolation by the University of Halle-Wittenberg, the money laundering volume in Germany is 100 billion euros annually.

Since the transfer of responsibility for suspicious transaction reports on money laundering from the BKA to the General Customs Directorate in 2017, the number of reports according to the FIU rose to over 77,000 in 2018. Of these, 58% of all suspicious transaction reports (approx. 45,000) met the requirements for transmission to the competent authorities . The public prosecutor's offices in turn provided feedback for around 14,000 suspected cases: of these, around 2% led to judgments, penal orders or indictments.

Economic Impact of Money Laundering

In new economic growth models, money laundering and corruption are seen as one of the long-term and sustainable growth inhibitors. This is particularly true because money laundering undermines the credibility of economic activities and legal security (independent courts and administration, contractual and register security) for market participants in the long term. The economic damage arises from the impairment of competition , since people with proceeds from laundered money, if they operate as “clean investors”, are financially stronger than their competitors, who have to generate the proceeds without being able to fall back on corresponding “reserves” .

The risk of infiltration of legal economic structures and, above all, the dependence of economically weak states (e.g. offshore islands, developing countries and countries with drug cultivation ) on organized crime are also described as risks .

Extent of money laundering

The extent of money laundering is difficult to determine. According to an estimate by the International Monetary Fund from 1999, 2% to 5% of the global gross domestic product is believed to come from illegal sources. For the year 2002 the volume of money laundering was estimated at 590 billion to 1,500 billion US dollars.

The Handelsblatt estimates the annual turnover of the German shadow economy at 500 billion euros; Money laundering has a large part in it. Kai Bussmann determined a volume of actual and non-existent money laundering suspected cases of around 20 billion euros outside the financial sector. He then estimated that every case that met suspicion criteria was also money laundering, not just about every second or third as would be appropriate. After that, he very freely doubled that value to include the financial sector. In a fourth step, he suspected that the result was too low. It could be much larger amounts, probably in the order of 100 billion euros.

Internationally, money is laundered in countries such as Panama or on some Caribbean islands mainly through the door opener Great Britain and some US states. Money laundering also affects the non-financial sector (real estate, company shares). The possibility of anonymous company forms, inadequate formal requirements , inadequately enforced international cooperation between the authorities and historically grown special provisions in British overseas territories make money laundering offenses easier. Money laundering expert Jason Sharman assumes there are 2 million offshore companies worldwide. It is estimated that 8% of global wealth, around 5,900 billion euros, is deposited in tax havens; it is believed that up to 75% of this was not properly taxed.

According to an estimate by the IMF, 1,300 to 1,750 billion euros are illegally collected through corruption and money laundering every year. If so, it will reduce global economic growth by around 2%. According to the journalist Marlies Uken, there is a lack of incentives in a number of countries to effectively implement transparency agreements because the money veil industry fear for their profits and, on the other hand, the tax havens fear cash outflows. Many agreements have been ratified on paper, but insufficiently implemented in national or regional law. In addition, lobbyists in many places are making efforts to combat money laundering efficiently. The lack of correct data acquisition, the delaying of procedures, the transfer of control functions to banks and the lack of human and financial resources at state money laundering reporting offices resulted in hardly traceable cash flows in practice. Even some German banks are not so strict about prescribed procedures. The publication of the Paradise Papers raised the question of the extent to which German banks offered payment services for online gambling that was largely illegal in Germany .

History of money laundering

According to a legend, the expression goes back to the gang boss Al Capone , who actually invested the money acquired through illegal activities in laundromats and thus concealed the true origin. When asked about his profession during the trial in 1931, he replied: "I work in the laundry business". When this form of tax evasion fraud was exposed, Al Capone was sent to jail for tax evasion.

As a result, other criminals founded legal businesses in which large amounts of coins could be converted without the authorities being able to verify the amount added by the illegal business . Tax had to be paid in this way for the amount obtained, but the money could be deposited into the business account without causing a stir. A popular type of business for money laundering was above all casinos with slot machines or car rental. Mafia boss Meyer Lansky , known as the finance minister of the underworld, is said to have been the first mafioso to discover Switzerland's anonymous numbered accounts and ways of concealing business in the Caribbean and Cuba.

In the 2010 decade, in addition to the troika laundromat, systematic money laundering became known, in which between 2010 and 2014 between 22 and 80 billion US dollars were smuggled out of Russia and transferred via Moldova , Latvia and Estonia , to Great Britain and 95 others States has been washed.

Legal provisions

In connection with money laundering, there are a number of national legal regulations:

Legal regulation in Germany

Offense of money laundering

Money laundering is a criminal offense in Germany according to § 261 StGB. Attempting and - as with all criminal offenses - aiding and abetting are punishable. The penalty range is 3 months to 5 years imprisonment . Furthermore, money or objects that are used for money laundering can be confiscated .

Own money laundering is only punishable in certain cases in Germany. A perpetrator of the predicate offense is generally not punished for money laundering ( Section 261 (9) sentence  2 StGB). According to Section 261, Paragraph 9, Sentence  3 of the Criminal Code, however, he is liable to prosecution if he brings the criticized object into circulation and conceals the illegal origin of the object. So-called financial agents are also liable to prosecution .

Predicate offenses

The predicate offenses must either be a crime (imprisonment of at least 1 year, Section 12 of the Criminal Code) or certain offenses ( Section 261 (1) of the Criminal Code). Apart from drug trafficking, such offenses can be predicate offenses to money laundering, which were committed either as a gang (at least 3 people) or commercially . Repeated evasion of social security contributions can constitute a commercial act of fraud , which is a predicate offense to money laundering. The offense of originating from a predicate offense also includes items that have replaced the original item following exchange and conversion campaigns.

Verification of legitimacy and identity

The principle for the legitimation and identity check is regulated in § 154 AO . In principle, no accounts may be set up or postings carried out if this is done by giving false or false names. Therefore, § 154 AO provides that the contracting partner of a customer must first obtain certainty about the customer and the address of the person entitled to dispose and record the information in a suitable form in the case of accounts on the account. From January 1, 2018, the tax identification number according to § 139b AO must also be recorded for each account holder . In connection with money laundering, the term identity verification , regulated in Section 1 (3) of the GwG, is common. In terms of content, both processes are almost identical.

Monitoring and reporting obligations

The monitoring and reporting obligations relating to money laundering are regulated in the GwG. In addition to companies in the financial industry (banks, etc.) a. also tax consultants, gaming providers, real estate agents and, in principle, all goods dealers (obligated persons within the meaning of Section 2 of the GwG). Lawyers and notaries are only obliged under the conditions specified in Section 2 (1) No. 10 of the GwG, d. H. For example, if they manage accounts or participate in real estate transactions on behalf of their clients.

All persons obliged under the GwG are obliged to set up a risk management system ( Section 4 GwG). In addition, there are certain duties of care with regard to customers. This includes in particular the obligation to identify the contractual partners or beneficial owners who are behind it ( Section 10 of the GwG).

Goods traders ( section 1 (9) of the GwG) can, under certain conditions (cf. section 5 (4) of the GwG, section 10 (6) of the GwG) receive relief (so-called privileged goods traders). You only need to set up a risk management system if cash payments of at least 10,000.00 euros are made or received as part of transactions. If only a single transaction exceeds the amount of 9,999.99 euros, this can lead to the loss of privileges. Even privileged goods dealers remain obliged under the AMLA. The following minimum standards remain, which even privileged merchants must comply with within the framework of the compliance organization:

a) Ensuring that the EUR 9,999.99 limit is complied with for cash transactions;
b) Ensuring that there is no case of so-called smurfing ;
c) Ensuring that indications of possible money laundering or terrorist financing are known and reported.

In addition, for all obliged entities under the AMLA, i. H. also for privileged goods traders, an obligation to report suspicious activity according to § 10 para. 3 no. 3 GwG i. V. m. §§ 43 ff. GwG, if there are concrete indications of possible money laundering or terrorist financing.

If people are stopped at an airport by customs officials or the Federal Police (formerly: Federal Border Police ), for example, they are obliged to ask for cash and equivalent means of payment of 10,000 euros or more (until June 15, 2007 ) in accordance with Section 12a, Paragraph 2 of the Customs Ordinance : 15,000 euros).

A false registration is an administrative offense ( § 31a ZollVG), which can also give rise to suspicion of money laundering ( § 261 StGB). Furthermore, in accordance with Section 31a (2) ZollVG, a fine of up to EUR 1 million can be imposed (up to June 15, 2007: of a quarter of the undeclared amount in the case of negligent violation; over half of the amount in the case of intentional violation; up to total amount in the case of a particularly serious case).

In addition, since June 15, 2007, Section 12a (1) ZollVG in conjunction with Regulation (EC) 1889/2005 has standardized the obligation to notify in writing cash holdings of over 10,000 euros in advance for cash transactions from or to the EU economic area . In the event of violations, a fine of up to EUR 1 million can also be imposed in accordance with Section 31b (2) ZollVG.

Transparency register

On October 1, 2017, the central electronic transparency register in accordance with Section 19 of the GwG was set up as a legally prescribed directory . Since then, corporations , partnerships and foundations that operate on the financial market have been obliged to report their beneficial owners to the register, unless their backers have already been disclosed in the commercial register, for example. The purpose of the transparency register is to better understand company networks and to be able to uncover money laundering and terrorist financing .

Money laundering control databases

With the argument of combating terrorist financing, the account retrieval procedure was set up in Germany in accordance with Section 24c KWG . Authorities can call up certain account master data here (e.g. account holder, authorized person , date of account opening, no balances or transactions). Completed data or expired accounts are stored for another three years. There are considerable reservations about this type of data processing ( data protection ). The Federal Constitutional Court has approved this legal regulation.

Regulatory and law enforcement agencies

In Germany, a large number of supervisory authorities are responsible for monitoring compliance with the obligations under the Money Laundering Act. According to Section 50 of the GwG, the competent supervisory authority for obligated credit institutions and payment service providers is the Federal Financial Supervisory Authority (BaFin), and for insurance companies it is the respective competent supervisory authority for the insurance sector ( Section 50 No. 2 GwG). The supervision of money laundering over the obligated persons in the area of ​​the so-called liberal professions is basically the responsibility of the respective self-governing body in Germany. In the case of tax advisors and tax agents, these are the chambers of tax advisors ( Section 50 No. 7 GwG), for auditors and sworn accountants the Chamber of Public Accountants ( Section 50 No. 6 GwG), for patent attorneys the Chamber of Patent Attorneys ( Section 50 No. 4 GwG) and With regard to obligated lawyers, the bar association is the supervisory authority ( Section 50 No. 3 GwG). An exception is the supervision of the obligated notaries. This is not incumbent on the chambers of notaries, but on the district court president in whose district the notary is based ( Section 50 No. 5 GwG) and who also exercises professional supervision over the notaries. The supervision of all other obligated parties in the non-financial sector is determined by state law. This applies in particular to goods dealers, real estate agents, service providers for companies, trust assets or trustees within the meaning of Section 2 (1) No. 13 GwG (for example service providers who offer companies so-called domicile addresses or sell shelf companies). The respective regulations of the federal states entrust different authorities with the supervision, in large states mostly state middle authorities. In Bavaria, for example, the governments of Middle Franconia and Lower Bavaria are centrally responsible (Section 8a BayZustV), in North Rhine-Westphalia the five district governments and in the city of Berlin the Senate Administration responsible for economics.

The Central Office for Financial Transaction Investigations , a department of the Customs Criminal Police Office of the General Customs Directorate , has served as the Financial Intelligence Unit (FIU) for Germany since June 26, 2017 .

History of money laundering legislation in Germany

With the law to combat illegal drug trafficking and other manifestations of organized crime (OrgKG) of July 15, 1992, the criminal offense of “money laundering; Concealment of illegally obtained assets ” inserted as a new section 261 in the Criminal Code. This criminal offense was later exacerbated. In particular, the catalog of predicate offenses on money laundering was expanded.

Basic data
Title: Serious Crime Profits Tracking Act
Short title: Money Laundering Act
Abbreviation: AMLA
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Commercial administrative law , commercial criminal law
References : 7613-3
Original version from: October 25, 1993
( BGBl. I p. 1770 )
Entry into force on: November 30, 1993
Last revision from: June 23, 2017
( Federal Law Gazette I, p. 1822 )
Entry into force of the
new version on: 		June 26, 2017
Last change by: Art. 269 VO from 19 June 2020
( Federal Law Gazette I, p. 1328, 1359 )
Effective date of the
last change: 		June 27, 2020
(Art. 361 of June 19, 2020)
Weblink: Text of the law
Please note the note on the applicable legal version.

The law on the tracing of profits from serious criminal offenses (Money Laundering Act - GwG) of October 25, 1993 was revised in the new version of August 13, 2008 and comprehensively changed in 2011 by the law to optimize money laundering prevention. The Money Laundering Act regulates who must take precautions such as recording deposits of 15,000 euros or more or certain identifications in order to combat money laundering. According to § 2 GwG, credit institutions, insurance companies, traders, casinos and legal advisory professions had to file a suspicious transaction report if they suspected money laundering. Since January 1, 2020, the applicability has been extended beyond those in the Banking Act (KWG) to include companies whose main activity is to acquire, maintain or sell investments. This does not apply to industrial holdings without any operational business that goes beyond holding and managing investments.

Complainants are exempt from any liability , unless the report is grossly negligent or deliberately untrue ( Section 48 of the GwG). A suspicious transaction report must also be filed if there is any suspicion of financing a terrorist organization .

The problem of money laundering can also exist for billing service providers, since investigative procedures are geared towards billing service providers in the telecommunications sector, for example, collecting payment claims that may have been obtained through fraud . Services on the Internet that are billed via dialers or cell phone payments are vulnerable . The only thing that matters is that the business partner committed a so-called catalog predicate offense. The amount obtained from the predicate offense is irrelevant. The intent of the service provider is also irrelevant, as the careless failure to recognize money laundering leads to criminal liability in accordance with Section 261 (5) of the Criminal Code.

The extent to which Section 261 of the Criminal Code extends is shown by the decision of the Karlsruhe Higher Regional Court of January 20, 2005 - 3 Ws 108/04 in connection with the billion-dollar FlowTex fraud.

Implementation of EU legal requirements

In the implementation of the Third Money Laundering Directive (2005/60 / EG of October 26, 2005, OJ No. L 309 p. 15) a. the Money Laundering Act (GwG) revised. As a result, the Money Laundering Act (since 2008) has not only covered: banks and insurance companies, trustees and brokers as well as lawyers and tax advisors, but also all "persons who trade in goods commercially". It thus affects practically the entire economic life and every contract. The obligation program applies, especially for goods dealers, only to high cash transactions; Lawyers do not fall into the scope per se, but only for certain dangerous advisory subjects such as business start-ups. The AMLA has already subjected a relatively large number of industries to its compliance requirements since the third anti-money laundering directive. These requirements have always been graduated, depending on the degree of risk. At the very least, however, every person obliged ( Section 2 of the GwG) must comply with certain basic duties of care, which are now standardized in Sections 4 et seq. of the GwG.

On the basis of the risk-oriented approach, further due diligence obligations may arise depending on the business partner's risk profile. Internal security measures are to be taken to varying degrees; Companies in certain sectors must also appoint a money laundering officer. Since the Money Laundering Act of 2008, one of the other obligations has been to identify contractual partners and verify their identity. In addition, there may be an obligation to obtain information about the purpose and the desired type of business relationship and to clarify whether the contractual partner is not acting on behalf of another beneficial owner. The information collected must be recorded and, as a rule, kept for five years. If there is a suspicion of money laundering, the Federal Criminal Police Office - the central office for suspicious transaction reports - and the responsible criminal prosecution authority must also be informed by means of an electronic suspicious transaction report. The person concerned may not be informed about this. As a rule, all duties are accompanied by a fine.

In January 2011 the European Commission complained that Germany had insufficiently implemented EU Directive 2005/60. According to the opinion of the EU Commission, the federal states of Mecklenburg-Western Pomerania and Saxony-Anhalt have not yet named the competent supervisory authorities with regard to real estate brokers, insurance brokers and sellers of goods if they process payments of over EUR 15,000 in cash (see on supervisory authorities Art . 36 and Art. 37 of EU Directive 2005/60 as well as Section 16 (2) No. 1 GwG).

On March 23, 2017, the German Bundestag passed the law on the reform of the criminal asset recovery, which came into force on July 1, 2017. According to this, a decision is made about the confiscation of crime profits and reimbursement to the crime victim in the criminal proceedings . With regard to extended confiscation, the law serves to enforce Directive 2014/42 / EU on the freezing and confiscation of instrumentalities and the proceeds of criminal offenses in the European Union.

The most recent amendment to the AMLA came into force in the summer of 2017 to implement the EU's fourth anti-money laundering directive. In essence, the change in the law specified various previously existing individual obligations; the number of AMLA paragraphs tripled. In addition, the new version of the GwG fundamentally expanded the addressees of the more specific requirements within those who are fundamentally obliged. As a result, for the first time, the regulatory framework acquired considerable practical relevance for various sectors that had basically been obligated for a long time.

In June 2018, the EU announced the fifth anti-money laundering directive, which once again tightened the previous compliance requirements - including with regard to transactions with cryptocurrencies . The member states have to implement the new requirements in national law by January 10, 2020.

Legal regulation in Austria

Offense of money laundering

The financing of terrorism is criminalized in Austria by Section 278d StGB , money laundering by Section 165 StGB.

As in many EU Member States, “laundering” income from one's own criminal offenses is not a criminal offense. For money laundering to be threatened with punishment, the money launderer and offender of the predicate offense must be different people.

The EU directive was implemented through incorporation into the respective professional laws by law novellen end of 2007 ( Industrial Code , the Public Accounting Profession Act, Balance Sheet Accounting Act ).

Predicate offenses

The predicate offenses of money laundering are described in § 165 StGB. This includes all crimes, i.e. H. all intentional criminal offenses that are threatened with life imprisonment or more than one year imprisonment. In addition, individual offenses such as forgery of documents , participation in a criminal organization, false testimony , forgery or suppression of evidence, bribery , smuggling or evasion of incoming or outgoing taxes are predicate offenses.

Legitimation check

The legitimation check is regulated in Section 40 of the Banking Act (BWG). See article legitimation check .

The anonymous savings accounts that were previously kept in Austria were in direct contradiction to the know-your-customer principle. In connection with the fight against money laundering, the opening of anonymous savings accounts has therefore been prohibited since November 2000 . Since July 1, 2002, the passing on of anonymous savings accounts has also been prohibited. The same applies to anonymous securities accounts . Furthermore, access to anonymous savings books is now only possible with legitimation, even if the amount is less than 15,000 euros. Cash deposits at the counter (e.g. currency exchange or precious metal trading) are also subject to authorization from 15,000 euros.

Monitoring and reporting obligations

Sections 39–41 of the Banking Act (BWG) regulate the “duty of care and the fight against money laundering and terrorist financing” for credit institutions. This includes the obligation to monitor and report suspicious transactions.

According to Section 41 BWG, banks are obliged to report in the event of suspicion

  • that a transaction is used for money laundering
  • that the customer has not disclosed his trust relationship
  • that the customer belongs to a terrorist organization or that the transaction is used to finance terrorism.

Law enforcement agencies

If there is suspicion of money laundering, a report must be made to the money laundering reporting office. The money laundering reporting office is the Financial Intelligence Unit (FIU) for Austria. The money laundering reporting office is part of the Federal Criminal Police Office of the Federal Ministry of the Interior.

Legal regulation in Switzerland

In Switzerland, money laundering began in 1990. The corresponding legal provisions can be found in the Swiss Criminal Code, where in Art. 305bis money laundering is a criminal offense and under Art. 305ter the lack of care in financial transactions is sanctioned and the right to report certain members of the financial sector is regulated. The Federal Act to Combat Money Laundering in the Financial Sector (Money Laundering Act, AMLA) of October 10, 1997, subordinates to the Swiss AMLA is on the one hand financial intermediaries in the banking and insurance sector within the meaning of Art. 2 Para 2 AMLA and, on the other hand, financial intermediaries in the so-called parabanking sector within the meaning of Art. 2 (3) AMLA. The parabanking sector includes independent asset managers, trustees, money transmitters, money changers and others. The dichotomy of supervision over compliance with the AMLA stems from the fact that financial intermediaries in the banking and insurance sector are generally supervised by the Swiss Financial Market Supervisory Authority FINMA with regard to compliance with the AMLA, while financial intermediaries in the parabanking sector are generally not prudentially supervised by FINMA. Such financial intermediaries also have the right to submit to FINMA, but they can also become members of a self-regulatory organization (SRO) recognized by FINMA (association structure), by which they are trained and audited with regard to the AMLA. A list of recognized SROs can be found on the FINMA website.

Legal regulation in other countries

In Italy, in order to combat money laundering through mafia-like structures, a reversal of the burden of proof was introduced, which applies in certain cases: If a mafia-like association is suspected, the assets are compared with the income, and if there are doubts about the origin of the capital, the public prosecutor can provide evidence demand its origin. According to the Italian public prosecutor Roberto Scarpinato , the Mafia invested more heavily in Germany after the introduction of this reversal of the burden of proof.

International conventions against money laundering

  • Recommendation of the Council of Europe on measures against the transfer and against the concealment of assets of criminal origin of June 27, 1980
  • Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
  • Council of Europe Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg Convention)
  • Council of Europe Convention of May 16, 2005 on Money Laundering, Terrorist Financing and the Search, Seizure and Confiscation of the Proceeds from Crime (Warsaw Convention No. 198)
  • EU directive on the prevention of the use of the financial system for the purpose of money laundering (2005/60 / EC, previously: 91/308 / EEC)
  • UN Convention on the Suppression of the Financing of Terrorism (1999)
  • United Nations Convention against Transnational Organized Crime (Palermo Convention, November 15, 2000)

International initiatives against money laundering

OECD

The Financial Action Task Force ( FATF ) has been a working group within the Organization for Economic Cooperation and Development (German abbreviation OWZE, English abbreviation OECD) to combat money laundering since it was founded in 1989 . It was founded by the G7 countries in order to combat money laundering on an international and national level and to enable the detection of assets of illegal origin.

The FATF has passed 40 recommendations (and 9 special recommendations after September 11, 2001), which are the basis for national laws in most member states. Today the working group consists of 33 countries and international organizations.

In addition, the individual states receive evaluations of the national strategies and their implementation.

In addition, since June 2000, the FATF has been issuing a list of countries and regions ( NCCT countries) that have shown themselves to be uncooperative in the fight against money laundering due to a lack of legislation or poor implementation. According to the Financial Action Task Force on Money Laundering , countries that do not comply with international standards for preventing money laundering include the Cook Islands , Nauru , Nigeria , the Philippines and Indonesia .

In order to ensure the standards of the FATF also apply in non-OECD countries, the FATF works closely with various regional groups that it initiated and which report to the FATF on their activities (FATF-Style Regional Bodies). The following regional groups currently exist:

  • the Asia / Pacific Group (APG)
  • the Caribbean Financial Action Task Force (CFATF)
  • the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG);
  • the South American Financial Action Task Force (GAFISUD).
  • the Select Committee of Experts on the Evaluation of Anti-Money Laundering Measures of the Council of Europe (Moneyval)

Council of Europe

The euro Council has under the name Moneyval launched an expert committee for evaluation of measures against money laundering, carries out the inspections of individual countries that are not members of the FATF in order to comply with the recommendations of the FATF.

U.N.

The UN defined the term money laundering for the first time in the Convention against the Illicit Trafficking in Narcotic Drugs and Psychotropic Substances (of December 20, 1988) and demanded that it be combated both against the drug dealers themselves and against their intermediaries and banks. The Convention against Transnational Organized Crime, passed in December 2000, obliges signatories to include money laundering as a criminal offense in their national criminal law.

The United Nations have the GPML ( Global Program Against Money Laundering , Global Program against Money Laundering called) to life. As part of this program, UN states receive financial and organizational support in combating money laundering.

OSCE

The Organization for Security and Co-operation in Europe (OSCE) has been involved in the fight against: Money laundering and terrorist financing since 2001. This was initiated by a mandate from the foreign ministers of the OSCE participating states and takes place within the framework of the economic and environmental dimension of the OSCE. All activities are closely coordinated with partners such as the UNODC's Global Program Against Money Laundering (GPML), the EBRD , the World Bank and the Council of Europe .

EU

At the European level, means in the fight against money laundering were first specified by EU Directive No. 91/308 of June 10, 1991. This directive has been replaced by other directives, most recently the 4th Anti-Money Laundering Directive of May 20, 2015 (RL 2015/849 / EU) and the new Money Transfer Regulation VO (EU) 2015/847 on the transmission of information on money transfers. The Money Transfer Ordinance came into force on June 26, 2015 and will apply from June 26, 2017 without any further implementation act.

On December 3, 1998, the Council adopted the Joint Action on Money Laundering, Search, Freezing, Seizure and Confiscation of Tools and the Proceeds from Crime.

With the EU Money Transfer Ordinance of November 15, 2006 ( Regulation (EC) No. 1781/2006 on the transmission of information about the payer for money transfers (published in the Official Journal (OJ L 345, pp. 1-9) of December 8, 2006 ) it was stipulated that payment service providers must pass on information about the payer at every stage of the payment process. The aim of the measure is to prevent, investigate and detect money laundering or terrorist financing. The regulation establishes Special Recommendation VII of the Working Group on Financial Measures (FATF) in the EU - Law implemented and is part of the EU Action Plan to Combat Terrorism.

Since spring 2016 the European Parliament has had its own committee to investigate money laundering, tax avoidance and tax evasion as a result of the Panama Papers and to review the often close business relationships between banks, politicians and oligarchs. The similar legal situation and interests in the fight against tax evasion, tax avoidance, money laundering, offshore business and corruption therefore require effective instruments (transparent, checked registers, contractual security, formal requirements, etc.).

At the end of 2019, Germany , France , Italy , Spain , the Netherlands and Latvia called for “money laundering supervision at European level” in order to make the fight against financial crime an EU rather than a national matter. It is unclear which authority should take over the money laundering supervision. The European Banking Authority (EBA) could take on this task, or a new EU authority with direct supervisory powers could be established.

Anti-money laundering software

Anti-money laundering software ( Engl. Anti-money laundering software , short AML ) is used by financial institutions to analyze customer data and to detect suspicious transactions. The computer programs filter customer data, classify them according to the level of suspicion and examine them for anomalies. These include sudden and significant increases in funds or large withdrawals. In both the United States and Canada, all transactions of $ 10,000 or more must be reported.

Smaller transactions that meet certain criteria can also be flagged as suspicious. For example, a person who wants to avoid detection will sometimes deposit several smaller amounts in a short period of time instead of a large sum. This practice also leads to the marking of transactions. The software also filters and marks names that are on a blacklist and businesses that involve suspicious countries.

As soon as the software has collected enough data and suspicious transactions have been flagged, a report is generated.

Money laundering in the literal sense

In the 1930s, upscale hotels and restaurants in the United States offered to launder their guests' coins. Because it was not customary to pay tips, taxi rides and small meals with banknotes because of the high monetary value, customers appreciated this option of being able to pay with clean, shiny coins. The Westin St. Francis Hotel in San Francisco began doing this in 1938 and continues that tradition today.

Banknotes can be washed to different degrees depending on the material (flower paper, cotton, plastic) and security features. From euro notes it is reported that the aluminum strip is peeling off and the entire banknote lights up under UV rays (instead of just the European flag).

See also

literature

  • Kai Bongard: Money laundering as an economic factor; Analysis and control. German Universitäts-Verlag, Wiesbaden 2001, ISBN 3-8244-0622-5 (also: Diss. Kassel 2001).
  • Günter Gehl (Ed.): Anti-money laundering, witness protection, profit skimming. Ways to Fight Organized Crime? A European comparison . Bertuch Weimar, 2004, ISBN 3-937601-04-X .
  • Nick Kochan: The Washing Machine. How Money Laundering and Terrorist Financing Soils Us. Mason 2005 (English).
  • Peter Reuter, Edwin M. Truman: Chasing Dirty Money. The Fight Against Money Laundering. Washington DC 2004 (English).
  • Josef Siska: Money laundering and its fight in Austria, Germany, Switzerland and Liechtenstein . 2nd edition Linde Verlag, Vienna 2007, ISBN 978-3-7143-0088-8 .
  • Herzog, GwG. Money Laundering Act. Commentary , 3rd edition, Munich 2018, Verlag CH Beck, ISBN 978-3-406-69391-5 .

Web links

Wiktionary: Money laundering  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ In Austria the term money laundering is officially used, e.g. B. BGBl. II No. 103/2015
  2. ^ William Easterly: National policies and economic growth: A reappraisal. In: Philippe Aghion, Steven Durlauf (Eds.): Handbook of Economic Growth. Elsevier, 2005, p. 15.
  3. ↑ a b The Russian money laundering machine. , Süddeutsche Zeitung , March 20, 2017.
  4. ↑ There is zero tolerance when it comes to money laundering. on kurier.at.
  5. ↑ Cf. Kristian Frigelj: Many criminals have no income - but substantial property. Die Welt 10 December 2018.
  6. ↑ Laundrycycle at www.unodc.org.
  7. ↑ How the art trade is spiraling out of control. , Die Welt, March 3, 2018.
  8. ↑ see Martin Gropp: The dark sides of online gambling. , FAZ , May 18, 2014.
  9. ↑ See Klaus Ehringfeld: Mexico - Paradise for money laundering. Hamburger Abendblatt , November 11, 2017.
  10. ↑ See e.g. B. Moritz Eichhorn: Money laundering in the furniture store. In: FAZ, April 14, 2017.
  11. ↑ according to Florian Klenk, Josef Redl: The great offshore show. In: Der Falter of April 6, 2016, p. 16, there are z. For example, the price list from legal services provider Mossack Foseca in Panama has a tariff of $ 8.75 per month for back-dating contracts.
  12. ↑ Cf. Heinz Wernitznig: Schneider: You only open bogus companies if you want to conceal something. In: EU-Infothek, April 8, 2016.
  13. ↑ See Kid Möchel FMA board member Ettl: There is zero tolerance when it comes to money laundering. Der Kurier , May 17, 2017.
  14. ↑ See China's art market is a playground for money laundering , FAZ from March 29, 2019, p. 25.
  15. ↑ See u. a. Markus Mayr, Alexander Mühlauer: Money laundering? So what! , SZ, February 9, 2017.
  16. ↑ See u. a. John Perkins: Confessions of an Economic Hit Man. 2016, p. 353 ff.
  17. ↑ See e.g. B. US banks want easing of anti-money laundering rules. Tyrolean daily newspaper , February 16, 2017.
  18. ^ Bastian Obermayer, Frederik Obermaier: Panama Papers . KiWi-Paperback, 2016, ISBN 978-3-462-05002-8 , p. 308 ff.
  19. ↑ Cf. Frederik Obermaier, Bastian Obermayer: Financial control in Luxembourgish . SZ of March 14, 2017.
  20. ↑ Cf. u. a. Frederik Obermaier, Bastian Obermayer: Financial control in Luxembourgish. SZ of March 14, 2017; Luxembourg and the “Panama Papers” - A change in awareness despite a lack of control. Luxemburger Wort of March 3, 2017; Claude Marx is stuck in the Panama scandal. L'essentiel from March 15, 2017.
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  22. ↑ See Stefan Mey: Blockchain - The Chaining of the World. Spectrum of Science from July 13, 2016.
  23. ↑ cf. Carla Neuhaus: How criminals use unsuspecting people for money laundering. The Tagesspiegel from February 20, 2016.
  24. ↑ Thousands of Germans are being used for money laundering. Handelsblatt .
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  26. ↑ See Bastian Obermayer, Frederik Obermaier: Panama Papers . KiWi-Paperback, 2016, ISBN 978-3-462-05002-8 , p. 316 ff.
  27. ↑ according to Florian Klenk, Josef Redl: The great offshore show. Der Falter dated April 6, 2016, p. 16, there is z. For example, the price list from legal services provider Mossack Foseca in Panama has a tariff of $ 8.75 per month for backdated contracts.
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  29. ↑ Cf. Corinna Budras: White-collar crime: What makes the fight against money laundering so difficult. FAZ from June 24, 2017.
  30. ↑ cf. Philip Faigle: We are dismantling the rule of law. The time of April 18, 2016.
  31. ↑ cf. z. B. Secrets of hundreds of politicians exposed. The time of April 3, 2016.
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  39. ↑ See Kid Möchel: FMA board member Ettl: There is zero tolerance when it comes to money laundering. The courier of May 17, 2017.
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  51. ↑ See the undisputed business with false bank accounts. FAZ of March 10, 2016.
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  54. ↑ See The Secret of the Moldovan Washing Machine. FAZ from January 25, 2018.
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