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REPORT     ***I
PDF 912kWORD 140k
7 December 2018
PE 628.460v02-00 A8-0442/2018

on the proposal for a Directive of the European Parliament and of the Council laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and repealing Council Decision 2000/642/JHA

(COM(2018)0213 – C8-0152/2018 – 2018/0105(COD))

Committee on Civil Liberties, Justice and Home Affairs

Rapporteur: Emil Radev

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on Economic and Monetary Affairs
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Directive of the European Parliament and of the Council laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and repealing Council Decision 2000/642/JHA

(COM(2018)0213 – C8-0152/2018 – 2018/0105(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2018)0213),

–  having regard to Article 294(2) and Article 87(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0152/2018),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the opinion of the European Economic and Social Committee of 12 July 2018(1),

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Economic and Monetary Affairs (A8-0442/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a directive

Title

Text proposed by the Commission

Amendment

Proposal for a

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and repealing Council Decision 2000/642/JHA

laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of serious criminal offences and repealing Council Decision 2000/642/JHA

Amendment    2

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  In order to enhance security in the Member States and across the Union, it is necessary to improve access to information by Financial Intelligence Units and public authorities responsible for the prevention, detection, investigation or prosecution of serious forms of crimes, to enhance their ability to conduct financial investigations and to improve cooperation between them.

(2)  In order to enhance security, improve prosecution of financial crimes, combat money laundering and prevent tax evasion in the Member States and across the Union, it is necessary to improve access to information by Financial Intelligence Units and public authorities responsible for the prevention, detection, investigation or prosecution of serious forms of crimes, to enhance their ability to conduct financial investigations and to improve cooperation between them.

Amendment    3

Proposal for a directive

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  Member States are obliged to cooperate sincerely, loyally and expeditiously pursuant to Article 4(3) of the Treaty on European Union.

Amendment      4

Proposal for a directive

Recital 3 a (new)

Text proposed by the Commission

Amendment

 

(3a)  Financial fraud and money laundering affect European tax payers. Combating those crimes, therefore, remains a priority for the Union.

Amendment    5

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  Immediate and direct access to the information held in centralised bank account registries is often indispensable for the success of a criminal investigation or for the timely identification, tracing and freezing of the related assets in view of their confiscation. Direct access is the most immediate type of access to the information held in centralised bank account registries. This Directive should therefore lay down rules granting direct access to information held in centralised bank account registries to designated Member States' authorities and other bodies competent for the prevention, detection, investigation or prosecution of criminal offences.

(6)  Immediate and direct access to the information held in centralised bank account registries is often indispensable for the success of a criminal investigation or for the timely identification, tracing and freezing of the related assets in view of their confiscation. Direct access is the most immediate type of access to the information held in centralised bank account registries. This Directive should therefore lay down rules granting direct access to information held in centralised bank account registries to designated Member States' authorities competent for the prevention, detection, investigation or prosecution of criminal offences.

Amendment    6

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  Given that in each Member States there are numerous authorities or bodies which are competent for the prevention, detection, investigation or prosecution of criminal offences, and in order to ensure a proportionate access to financial and other information under the present Directive, Member States should be required to designate which authorities should be empowered to have access to the centralised bank account registries and request information from Financial Intelligence Units for the purposes of this Directive.

(7)  Given that in each Member States there are numerous authorities or bodies which are competent for the prevention, detection, investigation or prosecution of criminal offences, and in order to ensure a proportionate access to financial and other information under the present Directive, Member States are required to designate which authorities should be empowered to have access to the centralised bank account registries and which should be able to request information from Financial Intelligence Units for the purposes of this Directive. Member States are also required to delimit the powers of such authorities.

Amendment    7

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  To the extent that tax authorities and anti-corruption agencies are competent for the prevention, detection, investigation or prosecution of criminal offences under national law, they should also be considered authorities that can be designated for the purposes of this Directive. Administrative investigations should not be covered under the present Directive.

(9)  To the extent that tax authorities and anti-corruption agencies are competent for the prevention, detection, investigation or prosecution of criminal offences under national law, they should also be considered authorities that can be designated for the purposes of this Directive. Administrative investigations, other than those conducted by the Financial Intelligence Units in the context of preventing, detecting and effectively combatting money laundering and terrorism financing, should not be covered under this Directive.

Amendment    8

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  The perpetrators of criminal offences, in particular criminal groups and terrorists, often operate across different Member States and their assets, including bank accounts, are often located in other Member States. Given the cross-border dimension of serious crimes, including terrorism, and of the related financial activities, it is often necessary for competent authorities carrying out investigations to access information on bank accounts held in other Member States.

(10)  The perpetrators of criminal offences, such as financial fraud and money laundering, are often criminal groups and terrorists organisations that operate across different Member States and their assets, including bank accounts, are often located in other Member States. Given the cross-border dimension of serious crimes, including terrorism, and of the related financial activities, it is often necessary for competent authorities carrying out criminal investigations to access information on bank accounts held in other Member States.

Amendment    9

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11)  The information acquired by competent authorities from the national centralised bank account registries can be exchanged with competent authorities located in a different Member State, in accordance with Council Framework Decision 2006/960/JHA14and Directive 2014/41/EU15of the European Parliament and the Council.

(11)  The information acquired by competent authorities from the national centralised bank account registries can be exchanged with competent authorities located in a different Member State, in accordance with Council Framework Decision 2006/960/JHA14 and Directive 2014/41/EU of the European Parliament and the Council15, in compliance with the applicable data protection rules.

_________________

_________________

14 Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, OJ L 386 of 29.12.2006, p. 89.

14 Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, OJ L 386 of 29.12.2006, p. 89.

15 Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130 of 1.5.2014, p. 1.

15 Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130 of 1.5.2014, p. 1.

 

.

Amendment    10

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12)  Directive (EU) 2015/849 has substantially enhanced the Union legal framework that governs the activity and cooperation of Financial Intelligence Units. The powers of Financial Intelligence Units include the right to access the financial, administrative and law enforcement information that they require to combat money laundering, the associated predicate offences and terrorist financing. Nevertheless, Union law does not lay down all specific tools and mechanisms that Financial Intelligence Units must have at their disposal in order to access such information and accomplish their tasks. Since Member States remain entirely responsible for the setting up and deciding the organisational nature of Financial Intelligence Units, different Financial Intelligence Units have varying degrees of access to regulatory databases which leads to an insufficient exchange of information between law enforcement or prosecution services and Financial Intelligence Units.

(12)  Directive (EU) 2015/849 has substantially enhanced the Union legal framework that governs the activity and cooperation of Financial Intelligence Units, including the possibility of establishing a coordination and support mechanism. The powers of Financial Intelligence Units, the legal status of which varies across Member States from administrative or law enforcement to hybrid ones, include the right to access the financial, administrative and law enforcement information that they require to prevent, detect and combat money laundering, the associated predicate offences and terrorist financing. Nevertheless, Union law does not lay down all specific tools and mechanisms that Financial Intelligence Units must have at their disposal in order to access such information and accomplish their tasks. Since Member States remain entirely responsible for the setting up and deciding the organisational nature of Financial Intelligence Units, different Financial Intelligence Units have varying degrees of access to regulatory databases which leads to an insufficient exchange of information between law enforcement or prosecution services and Financial Intelligence Units.

Amendment    11

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13)  In order to enhance legal certainty and operational effectiveness, this Directive should lay down rules to strengthen the Financial Intelligence Units' ability to share information with their designated competent authorities for all serious criminal offences.

(13)  In order to enhance legal certainty and operational effectiveness, this Directive should lay down rules to strengthen the Financial Intelligence Units' ability to share information or analysis with the designated competent authorities in their Member State for all serious criminal offences. More precisely, Financial Intelligence Units should be required to share information or analysis with the designated competent authorities for the purposes of the prevention, detection, investigation or prosecution of money laundering, the associated predicate offences and terrorist financing, and, where it is necessary on a case-by-case basis, of serious criminal offences. At the same time, this Directive should not affect the operational independence and autonomy of the Financial Intelligence Units as established in Directive(EU) 2015/849, including the ability to take autonomous decisions to analyse, request and disseminate information. Any refusal to comply with a request for information from a competent authority in its Member State should be appropriately explained.

Amendment    12

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  This Directive should also set out a clearly defined legal framework to enable Financial Intelligence Units to request relevant data stored by designated competent authorities in order to enable them to prevent and combat money laundering, the associated predicate offences and terrorist financing effectively.

(14)  This Directive should also set out a clearly defined legal framework to enable Financial Intelligence Units to request relevant data stored by designated competent authorities in their Member State in order to enable them to prevent, detect and combat money laundering, the associated predicate offences and terrorist financing effectively.

Amendment    13

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15)  Sharing information between Financial Intelligence Units and with competent authorities should only be permitted where it is necessary on a case-by-case basis, either for the prevention, detection, investigation or prosecution of serious criminal offences or for money laundering, the associated predicate offences and terrorist financing.

(15)  Sharing information between Financial Intelligence Units should be permitted for the purposes of the prevention, detection, investigation or prosecution of money laundering, the associated predicate offences or terrorist financing, and, in exceptional and urgent cases where this is sufficiently justified, of serious criminal offences. Such sharing of information should be undeterred.

Amendment    14

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  In order to prevent and combat money laundering, the associated predicate offences and terrorist financing more effectively and to reinforce its role in providing financial information and analysis, a Financial Intelligence Unit should be empowered to exchange information or analysis already in its possession or which can be obtained from obliged entities at the request of another Financial Intelligence Unit or of a competent authority in its Member State. This exchange should not hamper a Financial Intelligence Unit's active role in disseminating its analysis to other Financial Intelligence Units where that analysis reveals facts, conduct or suspicion of money laundering and terrorist financing of direct interest to those other Financial Intelligence Units. Financial analysis covers operational analysis which focuses on individual cases and specific targets or on appropriate selected information, depending on the type and volume of the disclosures received and the expected use of the information after dissemination as well as strategic analysis addressing money laundering and terrorist financing trends and patterns. However, this Directive should be without prejudice to the organisational status and role conferred to Financial Intelligence Units under the national law of Member States.

(16)  In order to prevent, detect and combat money laundering, the associated predicate offences and terrorist financing more effectively and to reinforce its role in providing financial information and analysis, a Financial Intelligence Unit should be empowered to exchange information already in its possession or which can be obtained from obliged entities or analysis already in its possession at the request of another Financial Intelligence Unit or of a competent authority in its Member State. This exchange should not hamper a Financial Intelligence Unit's active role in disseminating its analysis to other Financial Intelligence Units where that analysis reveals facts, conduct or suspicion of money laundering and terrorist financing of direct interest to those other Financial Intelligence Units. Financial analysis covers operational analysis which focuses on individual cases and specific targets or on appropriate selected information, depending on the type and volume of the disclosures received and the expected use of the information after dissemination as well as strategic analysis addressing money laundering and terrorist financing trends and patterns. It is essential that FIUs be provided with feedback from competent authorities as regards the use made of the financial information and financial analysis provided and the outcome of the investigation or prosecution relating to such information. Member States should put in place appropriate mechanisms to allow for such exchanges of information and follow-ups. However, this Directive should be without prejudice to the organisational status and role conferred to Financial Intelligence Units under the national law of Member States.

Amendment    15

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17)  Time limits for exchanges of information between Financial Intelligence Units are necessary to ensure quick, effective and consistent cooperation. Sharing information necessary to solve cross-border cases and investigations should be carried out with the same celerity and priority as for a similar domestic case. Time limits should be provided to ensure effective sharing of information within reasonable time or to meet procedural constraints. Shorter time limits should be provided in duly justified cases, where the requests relate to specific serious criminal offences, such as terrorist offences and offences related to a terrorist group or activities as laid down in Union law.

(17)  Time limits for exchanges of information between Financial Intelligence Units are necessary to ensure quick, effective and consistent cooperation. Sharing information necessary to solve cross-border cases and investigations should be carried out with the same celerity and priority as for a similar domestic case. Time limits should be provided to ensure effective sharing of information within reasonable time or to meet procedural constraints, as well as to harmonise practices in the exchange of information between FIUs across the Union. Shorter time limits should be provided in duly justified cases, where the requests relate to specific serious criminal offences, such as terrorist offences and offences related to a terrorist group or activities as laid down in Union law.

Amendment    16

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  Given the sensitivity of financial data that should be analysed by Financial Intelligence Units and the necessary data protection safeguards, this Directive should specifically set out the type and scope of information that can be exchanged between Financial Intelligence Units and with designated competent authorities. This Directive should not bring any changes to currently agreed methods of data collection.

(19)  Given the sensitivity of financial data that should be analysed by Financial Intelligence Units and the necessary data protection safeguards, this Directive should specifically set out the type and scope of information that can be exchanged between Financial Intelligence Units and with designated competent authorities. This Directive should not bring any changes to currently agreed methods of data collection. However, Member States should be able to decide to broaden the scope of financial information and bank account information that can be exchanged between the Financial Intelligence Units and designated competent authorities. Member States could also facilitate access by competent authorities to financial information and bank account information for the prevention, detection, investigation or prosecution of criminal offences other than serious criminal offences. This Directive should not derogate from the applicable data protection rules.

Amendment    17

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20)  Under its specific competences and tasks as laid down in Article 4 of Regulation (EU) 2016/794 of the European Parliament and of the Council16 , Europol provides support to Member States’ cross-border investigations into the money laundering activities of transnational criminal organisations. According to Regulation (EU) 2016/794, the Europol National Units are the liaison bodies between Europol and the Member States' authorities competent to investigate criminal offences. To provide Europol with the information necessary to carry out its tasks, Member States should provide that their Financial Intelligence Unit replies to requests for financial information and financial analysis made by Europol through the respective Europol National Unit. Member States should also provide that their Europol National Unit replies to requests for information on bank accounts by Europol. Requests made by Europol have to be duly justified. They have to be made on a case-by case basis, within the limits of Europol's responsibilities and for the performance of its tasks.

(20)  Under its specific competences and tasks as laid down in Article 4 of Regulation (EU) 2016/794 of the European Parliament and of the Council16, Europol provides support to Member States’ cross-border investigations into the money laundering activities of transnational criminal organisations. In that context, Europol should notify the Member States of any information and connections between criminal offences concerning those Member States. According to Regulation (EU) 2016/794, the Europol National Units are the liaison bodies between Europol and the Member States' authorities competent to investigate criminal offences. To provide Europol with the information necessary to carry out its tasks, Member States should provide that their Financial Intelligence Unit is entitled to reply to requests for financial information and financial analysis made by Europol through the respective Europol National Unit. Member States should also provide that their Europol National Unit is entitled to reply to requests for information on bank accounts by Europol. Requests made by Europol have to be duly justified. They have to be made on a case-by case basis, within the limits of Europol's responsibilities and for the performance of its tasks. The operational independence and autonomy of Financial Intelligence Units should not be jeopardised and the decision whether to provide the requested information or analysis should remain with the FIU. In order to ensure quick and effective cooperation, time limits for replies by the FIUs to requests by Europol should be set.

__________________

__________________

16 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53.

16 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53.

Amendment    18

Proposal for a directive

Recital 21 a (new)

Text proposed by the Commission

Amendment

 

(21 a)  To strengthen the cooperation between Financial Intelligence Units, the European Commission should carry out an impact assessment in the near future to evaluate the possibility and appropriateness of establishing a coordination and support mechanism, such as an EU FIU.

Amendment    19

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

(22)  To achieve the appropriate balance between efficiency and a high level of data protection, Member States should be required to ensure that the processing of sensitive financial information that could reveal a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation should be allowed only to the extent that it is strictly necessary and relevant to a specific investigation.

(22)  To achieve the appropriate balance between efficiency and a high level of data protection, Member States should be required to ensure that the processing of sensitive financial information that could reveal a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation should be allowed only by persons specifically authorised and to the extent that it is strictly necessary, relevant and proportionate for the prevention, detection, investigation or prosecution of a specific crime and in compliance with the applicable data protection rules.

Amendment    20

Proposal for a directive

Recital 23

Text proposed by the Commission

Amendment

(23)  This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and by the Charter of Fundamental Rights of the European Union, in particular the right to respect for private and family life (Article 7) and the right to the protection of personal data (Article 8), by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application.

(23)  This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and by the Charter of Fundamental Rights of the European Union, in particular the right to respect for private and family life (Article 7), the right to the protection of personal data (Article 8), the right to an effective remedy and to a fair trial (Article 47), the presumption of innocence and right of defence (Article 48), the principles of legality and proportionality of criminal offences and penalties (Article 49), by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application. This Directive respects and observes also the freedom to conduct a business and the prohibition of discrimination.

Amendment    21

Proposal for a directive

Recital 25

Text proposed by the Commission

Amendment

(25)  Personal data obtained under this Directive should only be processed by competent authorities where it is necessary and proportionate for the purposes of prevention, detection, investigation or prosecution of serious crime.

(25)  Any personal data obtained under this Directive should only be processed in accordance with Directive (EU) 2016/680 and Regulation (EU) 2016/679 by competent authorities where it is necessary and proportionate for the purposes of prevention, detection, investigation or prosecution of serious crime.

Amendment    22

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26)  Furthermore, in order to respect the right to the protection of personal data and the right to privacy and limit the impact of the access to the information contained in centralised bank account registries and data retrieval systems, it is essential to provide for conditions limiting the access. In particular, Member States should ensure that appropriate data protection policies and measures apply to the access to personal data from competent authorities for the purposes of this Directive. Only authorised persons should have access to information containing personal data which can be obtained from the centralised bank account registries or through authentication processes.

(26)  Furthermore, in order to respect the right to the protection of personal data and the right to privacy and limit the impact of the access to the information contained in centralised bank account registries and data retrieval systems, it is essential to provide for conditions limiting the access. In particular, Member States should ensure that appropriate data protection policies and measures apply to the access to personal data from competent authorities for the purposes of this Directive. Only authorised staff should have access to information containing personal data which can be obtained from the centralised bank account registries or through authentication processes. Staff granted access to such sensitive data should receive training on security practices with regards to the exchange and handling of the data.

Amendment    23

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  The Commission should report on the implementation of this Directive three years after its date of transposition, and every three years thereafter. In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement on Better Law-Making19 the Commission should also carry out an evaluation of this Directive on the basis of information collected through specific monitoring arrangements in order to assess the actual effects of the Directive and the need for any further action.

(28)  The Commission should report on the implementation of this Directive two years after its date of transposition, and every three years thereafter. In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement on Better Law-Making19 the Commission should also carry out an evaluation of this Directive on the basis of information collected through specific monitoring arrangements in order to assess the actual effects of the Directive and the need for any further action.

_________________

_________________

19 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016; OJ L 123, 12.5.2016, p. 1–14.

19 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016; OJ L 123, 12.5.2016, p. 1–14.

Amendment    24

Proposal for a directive

Recital 29

Text proposed by the Commission

Amendment

(29)  This Directive aims at ensuring that rules are adopted to provide Union citizens with a higher level of security by preventing and combating crime, pursuant to Article 67 of the Treaty on the Functioning of the European Union. Due to their transnational nature, the terrorist and criminal threats affect the Union as a whole and require a Union wide response. Criminals may exploit, and will benefit from, the lack of an efficient use of bank account information and financial information in a Member State, which can have consequences in another Member State. Since the objective of this Directive cannot be sufficiently achieved by the Member States, but can rather be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

(29)  This Directive aims at ensuring that rules are adopted to provide Union citizens with a higher level of security by preventing and combating crime, pursuant to Article 67 of the Treaty on the Functioning of the European Union. Due to their transnational nature, cross border organised crimes affect the Union as a whole and require a Union wide response. Criminals may exploit, and will benefit from, the lack of an efficient use of bank account information and financial information in a Member State, which can have consequences in another Member State. Since the objective of this Directive cannot be sufficiently achieved by the Member States, but can rather be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

Amendment    25

Proposal for a directive

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1.  This Directive lays down measures to facilitate access by competent authorities to financial information and bank account information for the prevention, detection, investigation or prosecution of serious criminal offences. It also provides for measures to facilitate access by Financial Intelligence Units to law enforcement information and to facilitate the cooperation between Financial Intelligence Units.

1.  This Directive lays down measures to facilitate access to and use of financial information and bank account information by competent authorities for the prevention, detection, investigation or prosecution of serious criminal offences. It also provides for measures to facilitate access by Financial Intelligence Units to law enforcement information, where this information is necessary, on a case-by-case basis, and to facilitate the cooperation between Financial Intelligence Units.

Amendment    26

Proposal for a directive

Article 1 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a)  the provisions of Directive (EU) 2015/849 of the European Parliament and of the Council and the related provisions in the national law of Member States, including the organisational status conferred to Financial Intelligence Units under national law;

(a)  the provisions of Directive (EU) 2015/849 of the European Parliament and of the Council and the related provisions in the national law of Member States, including the organisational status conferred to Financial Intelligence Units under national law and the competences of national authorities responsible for application of legislation concerning prevention of the use of the financial system for the purpose of money laundering and terrorist financing.

Amendment    27

Proposal for a directive

Article 2 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  'financial information' means any type of information or data which is held by Financial Intelligence Units to prevent, detect and effectively combat money laundering and terrorist financing, or any type of information or data which is held by public authorities or by obliged entities for those purposes and which is available to Financial Intelligence Units without the taking of coercive measures under national law;

(e)  'financial information' means any type of information or data, such as data on financial assets, movements of funds, financial business relationship, held by Financial Intelligence Units to prevent, detect and effectively combat money laundering and terrorist financing, or any type of information or data which is held by public authorities or by obliged entities for those purposes and which is available to Financial Intelligence Units without the taking of coercive measures under national law;

Amendment    28

Proposal for a directive

Article 2 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f)  'law enforcement information' means any type of information or data which is held by competent authorities to prevent, detect, investigate or prosecute criminal offences or any type of information or data which is held by public authorities or by private entities for those purposes and which is available to competent authorities without the taking of coercive measures under national law;

(f)  law enforcement information' means any type of information or data which already is held by competent authorities to prevent, detect, investigate or prosecute criminal offences or any type of information or data which is held by public authorities or by private entities for those purposes and which is available to competent authorities without the taking of coercive measures under national law; such information includes inter alia criminal records, information on investigations or on ongoing prosecutions, information on the freezing or seizure of assets or on other investigative or provisional measures and information on convictions, on confiscations and on mutual legal assistance activities;

Amendment    29

Proposal for a directive

Article 2 – paragraph 1 – point g – introductory part

Text proposed by the Commission

Amendment

(g)  'bank account information' means the following information contained in the centralised bank account registries:

(g)  'bank account information' means the following information on bank and payments accounts and safe deposit boxes contained in the centralised bank account registries:

Amendment    30

Proposal for a directive

Article 2 – paragraph 1 – point k

Text proposed by the Commission

Amendment

(k)  'financial analysis' means the operational and strategic analysis carried out by the Financial Intelligence Units for the performance of their tasks pursuant to Directive (EU) 2015/849;

(k)  'financial analysis' means the results of operational and strategic analysis carried out by the Financial Intelligence Units for the performance of their tasks pursuant to Directive (EU) 2015/849;

Amendment    31

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to access and search the national centralised bank account registries set up by the Member States in accordance with Article 32a of Directive (EU) 2015/849. They shall include the Europol National Units and the Asset Recovery Offices.

1.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to access and search the national centralised bank account registries set up by the Member States in accordance with Article 32a of Directive (EU) 2015/849. They shall include at least the Europol National Units and the Asset Recovery Offices.

Amendment    32

Proposal for a directive

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to request and receive financial information or financial analysis from the Financial Intelligence Unit. They shall include the Europol National Units.

2.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to request and receive financial information or financial analysis from the Financial Intelligence Unit. They shall at least include the Europol National Units.

Amendment    33

Proposal for a directive

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  Each Member State shall notify the Commission its designated competent authorities in accordance with paragraphs (1) and (2) by [6 months from transposition date] at the latest, and shall notify the Commission of any amendment thereto. The Commission shall publish the notifications and any amendment thereto in the Official Journal of the European Union.

3.  Each Member State shall notify the Commission its designated competent authorities in accordance with paragraphs (1) and (2) by [4 months from transposition date] at the latest, and shall notify the Commission of any amendment thereto. The Commission shall publish the notifications and any amendment thereto in the Official Journal of the European Union.

Amendment    34

Proposal for a directive

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the competent authorities designated pursuant to Article 3(1) shall have the power to access and search, directly and immediately, bank account information when necessary for the performance of their tasks for the purposes of preventing, detecting, investigating or prosecuting a serious criminal offence or supporting a criminal investigation concerning a serious criminal offence, including the identification, tracing and freezing of the assets related to such investigation.

1.  Member States shall ensure that the competent authorities designated pursuant to Article 3(1) shall have the power to access and search, directly and immediately, bank account information when necessary for the performance of their tasks for the purposes of preventing, detecting, investigating or prosecuting a serious criminal offence or supporting a criminal investigation concerning a serious criminal offence, including the identification, tracing and freezing of the assets related to such investigation. Access and search is also deemed direct and immediate where the national authorities operating the central bank account registries transmit the bank account information expeditiously by an automated mechanism to competent authorities, provided that no intermediary institution interferes with the requested data or the information to be provided.

Amendment    35

Proposal for a directive

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Member States providing access to bank account information through central electronic data retrieval systems shall ensure that the authority operating the retrieval systems reports search results in an immediate and unfiltered way to competent authorities.

Amendment    36

Proposal for a directive

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

2.  The additional information that Member States may deem essential and include in the centralised bank account registries in accordance with Article 32a(4) of Directive 2018/XX/EU shall not be accessible and searchable by competent authorities according to this Directive.

2.  The additional information that Member States may deem essential and include in the centralised bank account registries in accordance with Article 32a(4) of Directive 2018/XX/EU shall not be accessible and searchable by competent authorities on the basis of this Directive.

Amendment    37

Proposal for a directive

Article 5 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Member States shall ensure that the staff of the national designated competent authorities maintains high professional standards of confidentiality and data protection.

Amendment    38

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that the access and search by competent authorities is supported by technical and organisational measures ensuring the security of the data.

2.  Member States shall ensure that the access and search by competent authorities is supported by technical and organisational measures ensuring the security of the data to the highest technological standard available.

Amendment    39

Proposal for a directive

Article 6 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  the results of the query or search;

(d)  the unique identifiers of the results;

Amendment    40

Proposal for a directive

Article 6 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f)  the identifiers of the official who carried out the query or search and of the official who ordered the query or search.

(f)  the identifiers of the official who carried out the query or search and of the official who ordered the query or search, and as far as possible, the identity of the recipient of the results of the query or search.

Amendment    41

Proposal for a directive

Article 6 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Member States shall ensure that centralised bank account registers take appropriate measures so that employees are aware of the provisions in force, including the relevant data protection requirements. Such measures shall include special training programmes.

Amendment    42

Proposal for a directive

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Subject to national procedural safeguards, each Member State shall ensure that its national Financial Intelligence Unit is required to reply to requests for financial information or financial analysis by its designated competent authorities referred to in Article 3(2), where that financial information or financial analysis is necessary, on a case-by-case basis, for the prevention, detection, investigation or prosecution of serious criminal offences.

1.  Subject to national procedural safeguards, each Member State shall ensure that its national Financial Intelligence Unit is required to reply, in a timely manner, to reasoned requests for financial information or financial analysis by its designated competent authorities referred to in Article 3(2) in their respective Member State, where that financial information or financial analysis is necessary, on a case-by-case basis, for the prevention, detection, investigation or prosecution of serious criminal offences and may be obtained by the requesting competent authorities in accordance with the applicable law. Exemptions provided for under Article32(5) of Directive (EU) 2015/849 shall apply to the exchange. Any refusal shall be appropriately explained.

Amendment    43

Proposal for a directive

Article 7 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  Member States shall require designated competent authorities to provide feedback to the Financial Intelligence Unit about the use made of the information or analysis provided in accordance with this Article and about the outcome of the investigations or inspections performed on the basis of that information or analysis.

Amendment    44

Proposal for a directive

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

Subject to national procedural safeguards, each Member State shall ensure that its designated national competent authorities are required to reply to requests for law enforcement information by the national Financial Intelligence Unit, on a case-by-case basis, where the information is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

Subject to national procedural safeguards and in accordance with the rules on the access to information by the Financial Intelligence Units as set out in Article32(4) of Directive (EU) 2015/849, each Member State shall ensure that its designated national competent authorities are required to reply to requests for law enforcement information by the national Financial Intelligence Unit, on a case-by-case basis, where the information is necessary for the prevention,detection and combating of money laundering, associate predicate offences and terrorist financing.

Amendment    45

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall ensure that its Financial Intelligence Unit is enabled to exchange financial information or financial analysis with any Financial Intelligence Unit in the Union where that financial information or financial analysis is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

1.  Each Member State shall ensure that its Financial Intelligence Unit exchanges financial information or financial analysis free of charge with any Financial Intelligence Unit in the Union where that financial information or financial analysis is necessary for the prevention, detection and combating of money laundering, associate predicate offences and terrorist financing in accordance with Article 53(1) of Directive (EU) 2015/849.

Amendment    46

Proposal for a directive

Article 9 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  A Financial Investigation Unit may refuse to exchange information only in exceptional circumstances where the exchange could be contrary to fundamental principles of its national law. Those exceptions shall be specified in a way which prevents misuse of, and undue limitations on, the free exchange of information for analytical purposes. Any refusal shall be appropriately explained.

Amendment    47

Proposal for a directive

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that where a Financial Intelligence Unit is requested pursuant to paragraph 1 to exchange financial information or financial analysis, it shall do so as soon as possible and in any case no later than three days after the receipt of the request. In exceptional, duly justified cases, this time limit may be extended by a maximum of 10 days.

2.  Member States shall ensure that where a Financial Intelligence Unit is requested pursuant to paragraph 1 to exchange financial information or financial analysis, it shall do so as soon as possible and in any case no later than three days after the receipt of the request. In exceptional, duly justified cases, this time limit may be extended by a maximum of 10 days. The same time limits apply for sending an appropriate explanation in case of refusals based on paragraph (1a).

Amendment    48

Proposal for a directive

Article 9 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States shall ensure that, in exceptional and urgent cases, and by way of derogation from paragraph 2, where a Financial Intelligence Unit is requested pursuant to paragraph 1 to exchange financial information or financial analysis already in its possession that relates to specific investigations concerning an act or conduct qualified as a serious criminal offence, a Financial Intelligence Unit shall provide that information or analysis no later than 24 hours after the receipt of the request.

3.  Member States shall ensure that, in exceptional and urgent cases, and by way of derogation from paragraph 2, where a Financial Intelligence Unit is requested pursuant to paragraph 1 to exchange financial information or financial analysis already in its possession that relates to specific investigations concerning an act or conduct qualified as a serious criminal offence, a Financial Intelligence Unit shall provide that information or analysis free of charge no later than 24 hours after the receipt of the request.

Amendment    49

Proposal for a directive

Article 9 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  Member States shall ensure that the information exchanged pursuant to this Article is used only for the purpose for which it was sought or provided, and that any dissemination of that information by the receiving Financial Intelligence Unit to any other authority, agency or department, or any use of this information for purposes other than those originally approved, is made subject to the prior consent of the Financial Intelligence Unit providing the information.

Amendment    50

Proposal for a directive

Article 9 – paragraph 4 b (new)

Text proposed by the Commission

Amendment

 

4b.  Member States shall ensure that the prior consent requested from the Financial Intelligence Unit under paragraph 4a is granted promptly and to the largest extent possible. The Financial Intelligence Unit from which consent is requested shall not refuse to grant consent unless it would clearly fall beyond the scope of application of this Directive, could lead to impairment of a criminal investigation, would be clearly disproportionate in light of the legitimate interests of a natural or legal person or of the Member State of the requested Financial Intelligence Unit, or would otherwise clearly not be in accordance with fundamental principles of national law of that Member State. Any such refusal to grant consent shall be appropriately explained.

Amendment    51

Proposal for a directive

Article 9 a (new)

Text proposed by the Commission

Amendment

 

Article 9a

 

Transfer of financial data to third countries

 

The transfer of financial data to third countries and international partners, for the purposes laid down in this Directive shall only be allowed under the conditions laid down in Chapter V of Directive (EU) 2016/680 or Chapter V of Regulation (EU) 2016/679.

Amendment    52

Proposal for a directive

Article 9 b (new)

Text proposed by the Commission

Amendment

 

Article 9b

 

Exchange of information between competent authorities in different Member States

 

1.  Subject to national procedural safeguards, each Member State shall ensure that its competent authorities designated under Article 3 (1) are enabled to exchange information obtained from the access to the national centralised bank account registries set up by the Member States in accordance with Article 32a of Directive (EU)2015/849, upon request, and on a case-by-case basis, where that bank account information is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

 

2.  Subject to national procedural safeguards, each Member State shall ensure that its competent authorities designated under Article 3 (2) are enabled to exchange financial information or financial analysis requested from the Financial Intelligence Unit from that Member State, upon request and on a case-by-case basis from a designated competent authority in another Member State, where that financial information or financial analysis is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

 

3.  Member States shall ensure that a request issued pursuant to this Article and its response are transmitted using dedicated secure electronic communications ensuring a high level of data security. That network shall be capable of producing a written record under conditions that allow its authenticity of the request and its response to be ascertained.

Amendment    53

Proposal for a directive

Article 10 – title

Text proposed by the Commission

Amendment

Access by Europol to bank account information and exchange of information between Europol and Financial Intelligence Units

Provision of bank account information to Europol.

Amendment    54

Proposal for a directive

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall ensure that its Europol National Unit replies to duly justified requests related to bank account information made by the Agency for Law Enforcement Cooperation established by Regulation (EU) 2016/794 of the European Parliament and of the Council (‘Europol') on a case-by-case basis within the limits of its responsibilities and for the performance of its tasks.

1.  Each Member State shall ensure that its Europol National Unit is entitled to reply to duly justified requests related to bank account information made by the Agency for Law Enforcement Cooperation established by Regulation (EU) 2016/794 of the European Parliament and of the Council (‘Europol') on a case-by-case basis within the limits of its responsibilities and for the performance of its tasks. Article 7 (7) of Regulation (EU)2016/794 shall apply.

Amendment    55

Proposal for a directive

Article 10 – paragraph 2

Text proposed by the Commission

Amendment

2.  Each Member State shall ensure that its Financial Intelligence Unit replies to duly justified requests related to financial information and financial analysis made by Europol through the Europol National Unit within the limits of its responsibilities and for the performance of its tasks.

deleted

Amendment    56

Proposal for a directive

Article 10 – paragraph 3

Text proposed by the Commission

Amendment

3.  Exchange of information under paragraphs 1 and 2 shall take place electronically through SIENA and in accordance with Regulation (EU) 2016/794. The language used for the request and the exchange of information shall be that applicable to SIENA.

deleted

Amendment    57

Proposal for a directive

Article 10 a (new)

Text proposed by the Commission

Amendment

 

Article 10 a

 

Exchange of information between Europol and Financial Intelligence Units

 

1. Each Member State shall ensure that its Financial Intelligence Unit is entitled to reply to duly justified requests made by Europol through the Europol National Unit that are related to financial information and financial analysis on a case-by-case basis within the limits of the responsibilities of Europol and for the performance of its tasks.

 

2. Exemptions provided for under Article 32(5) of Directive (EU) 2015/849 shall apply to the exchange. Any refusal shall be appropriately explained.

 

3. Europol shall provide feedback to the FIU through the Europol National Unit about the use made of the information or analysis provided in accordance with this Article and about the outcome of the investigations or inspections performed on the basis of this information or analysis in line with Regulation(EU) 2016/794.

Amendment    58

Proposal for a directive

Article 10 b (new)

Text proposed by the Commission

Amendment

 

Article 10 b

 

Detailed arrangements for the exchange of information

 

1. Exchange of information under Articles 10 and 10a shall take place electronically through SIENA and in accordance with Regulation (EU) 2016/794.The language used for the request and the exchange of information shall be that applicable to SIENA.

 

2. The information shall be exchanged as soon as possible and in any case no later than five days after the receipt of the request. In exceptional, duly justified cases, this time limit may be extended by a maximum of ten days.

Amendment    59

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1.  The processing of personal data related to bank account information, financial information and financial analysis referred to in Article 10(1) and (2) shall be performed only by the persons within Europol who have been specifically designated and authorised to perform those tasks.

1.  The processing of personal data related to bank account information, financial information and financial analysis referred to in Article 10(1) and (2) shall be performed only by means of operational analysis projects, in respect of which the specific safeguards laid down in Article 18 (3) of Regulation (EU) 2016/794 shall apply.

Amendment    60

Proposal for a directive

Article 11 – paragraph 2

Text proposed by the Commission

Amendment

2.  Europol shall inform the data protection officer appointed in accordance with Article 41 of Regulation (EU) 2016/794 of each exchange of information pursuant to Article 10 of this Directive.

2.  Europol shall inform the data protection officer appointed in accordance with Article 41 of Regulation (EU) 2016/794 of each exchange of information pursuant to Articles 10 and 10a of this Directive.

Amendment    61

Proposal for a directive

Article 13 – title

Text proposed by the Commission

Amendment

Processing of sensitive data

Processing of sensitive personal data

Amendment    62

Proposal for a directive

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

1.  The processing of information revealing a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation may only be allowed to the extent that it is strictly necessary and relevant in a specific case

1.  The processing of personal data revealing a person's race or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning health, or data concerning a natural person’s sex life or sexual orientation shall only be allowed in accordance with Article 10 of Directive (EU) 2016/680.

Amendment    63

Proposal for a directive

Article 13 – paragraph 2

Text proposed by the Commission

Amendment

2.  Only persons specifically authorised may access and process the data referred to in paragraph 1 under the instruction of the data protection officer

2.  Only persons specifically authorised and trained may access and process the data referred to in paragraph 1 under the instruction of the data protection officer

Amendment    64

Proposal for a directive

Article 14 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  the name and contact details of the organisation and personnel member requesting the information;

(a)  the name and contact details of the organisation and personnel member requesting the information; and, as far as possible, the identity of the recipient of the results of the query or search.

Amendment    65

Proposal for a directive

Article 14 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  the requests made pursuant to this Directive and their executing measures.

(c)  the subject matter of the requests made pursuant to this Directive and their executing measures.

Amendment    66

Proposal for a directive

Article 15 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

Member States shall adopt legislative measures restricting, in whole or in part, the data subject's right of access to personal data relating to him or her processed under this Directive in order to:

Member States may adopt legislative measures restricting, in whole or in part, the data subject's right of access to personal data relating to him or her processed under this Directive in accordance with Article 15(1) of Directive (EU) 2016/680.

(a)  enable the Financial Intelligence Unit or the competent national authority to fulfil its tasks properly for the purposes of this Directive;

 

(b)  avoid obstructing official or legal inquiries, analyses, investigations or procedures for the purposes of this Directive and to ensure that the prevention, investigation and detection of money laundering, terrorist financing or other serious criminal offences is not jeopardised.

 

Amendment    67

Proposal for a directive

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall review the effectiveness of their systems to combat serious criminal offences by maintaining comprehensive statistics.

1.  Member States shall review the effectiveness and efficiency of their systems with regard to the use of financial and other information for the prevention, detection, investigation or prosecution of serious criminal offences by maintaining comprehensive statistics.

Amendment    68

Proposal for a directive

Article 18 – paragraph 1

Text proposed by the Commission

Amendment

1.  By [OJ please insert date: three years after the date of transposition of this Directive] at the latest, and every three years thereafter, the Commission shall draw up a report on the implementation of this Directive and submit it to the European Parliament and to the Council. The report shall be made public.

1.  By [OJ please insert date: two years after the date of transposition of this Directive] at the latest, and every three years thereafter, the Commission shall draw up a report on the implementation of this Directive and submit it to the European Parliament and to the Council. The report shall be made public.

Amendment    69

Proposal for a directive

Article 18 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1 a.  The Commission shall assess the obstacles and opportunities to enhance cooperation between FIUs in the Union including the possibility and appropriateness of establishing a coordination and support mechanism, such as an EU FIU.

Amendment    70

Proposal for a directive

Article 19 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by XXYY [26 months after the date of entry into force of Directive (EU) (…)/2018: OJ please insert number of Directive amending Directive (EU) 2015/849] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by no later than... [24 months after the date of entry into force of Directive (EU) (…)/2018+]. They shall forthwith communicate to the Commission the text of those provisions.

 

________________

 

+ OJ: please insert number of Directive amending Directive (EU) 2015/849]

Amendment    71

Proposal for a directive

Article 19 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  By [OJ please insert date: three years after the date of transposition of this Directive] at the latest, the Commission shall draw up a report assessing the necessity of specific measures to ensure diagonal cooperation, i.e. cooperation between Financial Intelligence Units in one Member States with competent authorities in another Member State. The report shall be submitted to the European Parliament and to the Council and be accompanied by a legislative proposal, if considered necessary.

Amendment    72

Proposal for a directive

Article 19 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.  By [OJ please insert date: three years after the date of transposition of this Directive] at the latest, the Commission shall draw up a report assessing the necessity of specific measures to ensure uniformity in the organisational status and role conferred on Financial Intelligence Units under the national law of Member States, to ensure efficient cooperation and exchange of information. The report shall be submitted to the European Parliament and to the Council and be accompanied by a legislative proposal, if considered necessary.

(1)

OJ C 367, 10.10.2018, p. 84.


EXPLANATORY STATEMENT

Background

Criminal groups, including terrorists, operate across different Member States and their assets, including bank accounts, are usually located across the EU or even beyond it. They make use of modern technology that allows them to transfer money between several bank accounts and between different currencies in a matter of hours.

A timely exchange of information is essential for criminal investigations on serious crimes. Lack of financial information may result in missed opportunities to investigate serious crimes, disrupt criminal activities, stop terrorist plots, and detect and freeze proceeds of crime. Lack of information on all accounts belonging to a suspect may lead to partial freezing of assets only, which may alert the suspect, who is then able to remove the undetected funds from the other accounts the suspect might hold. Many investigations come to a dead end due to the failure to secure timely, accurate and comprehensive access to the relevant financial data.

The existing mechanisms for accessing and exchanging financial information need to be upgraded to respond to the fast pace at which funds can be transferred across Europe and globally. As a result, the number of successful criminal investigations will increase, which in turn will lead to an increase in the number of convictions and asset confiscations. This will contribute to disrupting criminal activities and increasing the security in the Member States and across the Union.

Commission proposal

To respond to the above-described challenges, the European Commission proposes direct access to the national centralised bank account registries or data retrieval systems to competent authorities. The competent authorities to which access is provided for also include tax authorities, anti-corruption authorities in their capacity to conduct criminal investigations under national law, the Asset Recovery Offices which are responsible for the tracing and identification of criminal assets in view of their possible freezing and confiscation. The Commission proposes also that Europol is provided with indirect access through Member States' National Units.

The proposal also facilitates cooperation between FIUs, between FIUs and competent authorities, and between FIUs and Europol through the Europol National Units. It defines what type of information (financial information, financial analysis, law enforcement information) can be requested by competent authorities and FIUs respectively as well as an exhaustive list of criminal offences for which each authority can exchange information always on a case-by-case basis, which means for a specific case under investigation. It provides for deadlines within which FIUs should exchange the information and requires the use of a secure channel of communication to further improve and speed up the information exchange. Finally, it requires Member States to designate all the competent authorities entitled to request information. It ensures a broader and more effective but at the same time proportionate exchange of information.

Position of the rapporteur

The rapporteur welcomes the proposal of the European Commission, as the timely exchange of information is one of the priorities of the European Parliament in the fight against money laundering, related predicate offences, terrorism, and all forms of serious criminal offences in general. To this end, he welcomes the provisions on providing access to the national bank account registers or data retrieval systems to competent authorities in relation to the effective fight against serious criminal offences, as these texts build upon the Fifth Anti-Money Laundering Directive.

The rapporteur agrees that the exchange of information between Financial Intelligence Units and competent authorities in the fight against serious criminal offences has to be strengthened. At the same time, he is mindful of the different structures and forms of FIUs in the different Member States, and especially of the need to preserve the FIUs’ operational independence and autonomy. Therefore, he proposes that FIUs have the ability to respond to requests for financial information or analysis from the competent authorities or the Europol National Units, while taking into consideration whether the sharing of such information or analysis can have a negative impact on ongoing investigations or analysis or whether the disclosure of the information would be disproportionate to the legitimate interests of a natural or legal person or irrelevant with regard to the purpose for which it has been requested.

The deadlines for exchange of information have been slightly prolonged in order to ensure that FIUs have enough operational time for response.

Last but not least, the rapporteur aligns the data protection regime with existing legislation and removes texts that result in the creation of new regimes.


OPINION of the Committee on Economic and Monetary Affairs (28.11.2018)

for the Committee on Civil Liberties, Justice and Home Affairs

on the proposal for a directive of the European Parliament and of the Council laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences and repealing Council Decision 2000/642/JHA

(COM(2018)0213 – C8-0152/2018 – 2018/0105(COD))

Rapporteur for opinion: Bernd Lucke

AMENDMENTS

The Committee on Economic and Monetary Affairs calls on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  In order to enhance security in the Member States and across the Union, it is necessary to improve access to information by Financial Intelligence Units and public authorities responsible for the prevention, detection, investigation or prosecution of serious forms of crimes, to enhance their ability to conduct financial investigations and to improve cooperation between them.

(2)  In order to enhance security and prosecution of financial crimes in the Member States and across the Union, it is necessary to improve access to information by Financial Intelligence Units and public authorities responsible for the prevention, detection, investigation or prosecution of serious forms of crimes, to enhance their ability to conduct financial investigations and to improve cooperation between them.

Amendment    2

Proposal for a directive

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  Member States are obliged to cooperate sincerely, loyally and expeditiously as per Article 4(3) of the Treaty on European Union.

Amendment    3

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  To the extent that tax authorities and anti-corruption agencies are competent for the prevention, detection, investigation or prosecution of criminal offences under national law, they should also be considered authorities that can be designated for the purposes of this Directive. Administrative investigations should not be covered under the present Directive.

(9)  To the extent that tax authorities and anti-corruption agencies are competent for the prevention, detection, investigation or prosecution of criminal offences under national law, they should also be considered authorities that can be designated for the purposes of this Directive. Administrative investigations, other than those conducted by the Financial Intelligence Units in the context of preventing, detecting and effectively combatting money laundering and terrorism financing, should not be covered under the present Directive.

Amendment    4

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12)  Directive (EU) 2015/849 has substantially enhanced the Union legal framework that governs the activity and cooperation of Financial Intelligence Units. The powers of Financial Intelligence Units include the right to access the financial, administrative and law enforcement information that they require to combat money laundering, the associated predicate offences and terrorist financing. Nevertheless, Union law does not lay down all specific tools and mechanisms that Financial Intelligence Units must have at their disposal in order to access such information and accomplish their tasks. Since Member States remain entirely responsible for the setting up and deciding the organisational nature of Financial Intelligence Units, different Financial Intelligence Units have varying degrees of access to regulatory databases which leads to an insufficient exchange of information between law enforcement or prosecution services and Financial Intelligence Units.

(12)  Directive (EU) 2015/849 has substantially enhanced the Union legal framework that governs the activity and cooperation of Financial Intelligence Units, the legal status of which varies across Member States from administrative to law enforcement to hybrid ones. The powers of Financial Intelligence Units include the right to access the financial, administrative and law enforcement information that they require to prevent, detect, and combat money laundering, the associated predicate offences and terrorist financing. Nevertheless, Union law does not lay down all specific tools and mechanisms that Financial Intelligence Units must have at their disposal in order to access such information and accomplish their tasks. Since Member States remain entirely responsible for the setting up and deciding the organisational nature of Financial Intelligence Units, different Financial Intelligence Units have varying degrees of access to regulatory databases which leads to an insufficient exchange of information between law enforcement or prosecution services and Financial Intelligence Units.

Amendment    5

Proposal for a directive

Recital 13 a (new)

Text proposed by the Commission

Amendment

 

(13 a)  At the same time, the provisions of this Directive do not affect the operational independence and autonomy of the Financial Intelligence Units under Directive (EU) 2015/849 and should be in line with that Directive, meaning that the Financial Intelligence Units shall continue to have the authority and capacity to carry out its functions freely, including the ability to take autonomous decisions to analyse, request and disseminate specific information.

Amendment    6

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  This Directive should also set out a clearly defined legal framework to enable Financial Intelligence Units to request relevant data stored by designated competent authorities in order to enable them to prevent and combat money laundering, the associated predicate offences and terrorist financing effectively.

(14)  This Directive should also set out a clearly defined legal framework to enable Financial Intelligence Units to request relevant data stored by designated competent authorities in order to enable them to prevent, detect and combat money laundering, the associated predicate offences and terrorist financing effectively.

Amendment    7

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  In order to prevent and combat money laundering, the associated predicate offences and terrorist financing more effectively and to reinforce its role in providing financial information and analysis, a Financial Intelligence Unit should be empowered to exchange information or analysis already in its possession or which can be obtained from obliged entities at the request of another Financial Intelligence Unit or of a competent authority in its Member State. This exchange should not hamper a Financial Intelligence Unit's active role in disseminating its analysis to other Financial Intelligence Units where that analysis reveals facts, conduct or suspicion of money laundering and terrorist financing of direct interest to those other Financial Intelligence Units. Financial analysis covers operational analysis which focuses on individual cases and specific targets or on appropriate selected information, depending on the type and volume of the disclosures received and the expected use of the information after dissemination as well as strategic analysis addressing money laundering and terrorist financing trends and patterns. However, this Directive should be without prejudice to the organisational status and role conferred to Financial Intelligence Units under the national law of Member States.

(16)  In order to prevent and combat money laundering, the associated predicate offences and terrorist financing more effectively and to reinforce its role in providing financial information and analysis, a Financial Intelligence Unit should be empowered to exchange information or analysis already in its possession or which can be obtained from obliged entities at the request of another Financial Intelligence Unit or of a competent authority in its Member State. This exchange should not hamper a Financial Intelligence Unit's active role in disseminating its analysis to other Financial Intelligence Units where that analysis reveals facts, conduct or suspicion of money laundering and terrorist financing of direct interest to those other Financial Intelligence Units. Financial analysis covers operational analysis which focuses on individual cases and specific targets or on appropriate selected information, depending on the type and volume of the disclosures received and the expected use of the information after dissemination as well as strategic analysis addressing money laundering and terrorist financing trends and patterns. The Financial Intelligence Units should receive feedback on the use of the information and analysis provided. However, this Directive should be without prejudice to the organisational status and role conferred to Financial Intelligence Units under the national law of Member States. In particular, FIUs should be under no obligation to comply with the request for information where there are objective grounds for assuming that the provision of such information would have a negative impact on ongoing investigations or analyses, or, in exceptional circumstances, where disclosure of the information would be clearly disproportionate to the legitimate interests of a natural or legal person or irrelevant with regard to the purposes for which it has been requested. Any refusal to comply with a request for information from another Financial Investigation Unit or from a competent authority in its Member State should be appropriately explained.

Amendment    8

Proposal for a directive

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a)  In order to enhance trust and cooperation between FIUs and competent authorities, as well as to improve the efficiency of the fight against money laundering and serious criminal offences, it is essential that FIUs are provided with feedback from competent authorities as regards to the use made of the financial information provided and about the outcome of the investigation or prosecution relating to such information. Member States should therefore require that competent authorities provide regular feedback to the Financial Intelligence Unit and should put in place appropriate mechanisms to allow for such exchanges of information and follow-ups.

Amendment    9

Proposal for a directive

Recital 16 b (new)

Text proposed by the Commission

Amendment

 

(16b)  Designated competent authorities should be empowered to exchange information or analysis already in their possession or which can be obtained following a request to a Financial Intelligence Unit with designated competent authorities of another Member State, following a specific request and on a case-by-case basis, where that information or analysis is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

Amendment    10

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17)  Time limits for exchanges of information between Financial Intelligence Units are necessary to ensure quick, effective and consistent cooperation. Sharing information necessary to solve cross-border cases and investigations should be carried out with the same celerity and priority as for a similar domestic case. Time limits should be provided to ensure effective sharing of information within reasonable time or to meet procedural constraints. Shorter time limits should be provided in duly justified cases, where the requests relate to specific serious criminal offences, such as terrorist offences and offences related to a terrorist group or activities as laid down in Union law.

(17)  Time limits for exchanges of information between Financial Intelligence Units are necessary to ensure quick, effective and consistent cooperation. Sharing information necessary to solve cross-border cases and investigations should be carried out with the same celerity and priority as for a similar domestic case. Time limits should be provided to ensure effective sharing of information within reasonable time or to meet procedural constraints, as well as to harmonise practices of exchange of information between FIUs across the Union. Shorter time limits should be provided in duly justified cases, where the requests relate to specific serious criminal offences, such as terrorist offences and offences related to a terrorist group or activities as laid down in Union law.

Amendment    11

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18)  The use of secure facilities for the exchange of information, in particular the decentralised computer network FIU.net (the ‘FIU.net’), which is managed by Europol since 1 January 2016, or its successor and the techniques offered by FIU.net, should be used for exchanges of information between Financial Intelligence Units.

(18)  The secure and decentralised electronic communications network FIU.net (the ‘FIU.net’), which is managed by Europol since 1 January 2016, or its successor and the techniques offered by FIU.net, should be used for exchanges of information between Financial Intelligence Units.

Amendment    12

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  Given the sensitivity of financial data that should be analysed by Financial Intelligence Units and the necessary data protection safeguards, this Directive should specifically set out the type and scope of information that can be exchanged between Financial Intelligence Units and with designated competent authorities. This Directive should not bring any changes to currently agreed methods of data collection.

(19)  Given the sensitivity of financial data that should be analysed by Financial Intelligence Units and the necessary data protection safeguards, this Directive should specifically set out the type and scope of information that can be exchanged between Financial Intelligence Units and with designated competent authorities. However, Member States should be able to decide to broaden the scope of financial information and bank account information that can be exchanged between the Financial Intelligence Units and designated competent authorities. They may also facilitate access by competent authorities to financial information and bank account information for the prevention, detection, investigation or prosecution of criminal offences other than serious criminal offences. This Directive should not bring any changes to currently agreed methods of data collection and should not derogate from the existing Union data protection law.

Amendment    13

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20)  Under its specific competences and tasks as laid down in Article 4 of Regulation (EU) 2016/794 of the European Parliament and of the Council16 , Europol provides support to Member States’ cross-border investigations into the money laundering activities of transnational criminal organisations. According to Regulation (EU) 2016/794, the Europol National Units are the liaison bodies between Europol and the Member States' authorities competent to investigate criminal offences. To provide Europol with the information necessary to carry out its tasks, Member States should provide that their Financial Intelligence Unit replies to requests for financial information and financial analysis made by Europol through the respective Europol National Unit. Member States should also provide that their Europol National Unit replies to requests for information on bank accounts by Europol. Requests made by Europol have to be duly justified. They have to be made on a case-by case basis, within the limits of Europol's responsibilities and for the performance of its tasks.

(20)  Under its specific competences and tasks as laid down in Article 4 of Regulation (EU) 2016/794 of the European Parliament and of the Council16 , Europol provides support to Member States’ cross-border investigations into the money laundering activities of transnational criminal organisations. In that context, Europol is obliged to notify the Member States of any information and connections between criminal offences concerning them. According to Regulation (EU) 2016/794, the Europol National Units are the liaison bodies between Europol and the Member States' authorities competent to investigate criminal offences. To provide Europol with the information necessary to carry out its tasks, Member States should provide that their Financial Intelligence Unit replies swiftly and to the best of its ability to requests for financial information and financial analysis made by Europol through the respective Europol National Unit. Member States should also provide that their Europol National Unit replies to requests for information on bank accounts by Europol. Requests made by Europol have to be duly justified. They have to be made on a case-by case basis, within the limits of Europol's responsibilities and for the performance of its tasks.

__________________

__________________

16 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53.

16 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53.

Amendment    14

Proposal for a directive

Recital 20 a (new)

Text proposed by the Commission

Amendment

 

(20a)  In order to enhance cross-border cooperation, Europol should create a specific unit to support and coordinate cooperation and exchange of information between Financial Intelligence Units. This unit should be empowered to assist Financial Intelligence Units in joint analysis of cross-border cases, produce its own analysis and coordinate the work of Financial Intelligence Units in Member States for cross-border cases, whenever necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

Amendment    15

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

(22)  To achieve the appropriate balance between efficiency and a high level of data protection, Member States should be required to ensure that the processing of sensitive financial information that could reveal a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation should be allowed only to the extent that it is strictly necessary and relevant to a specific investigation.

(22)  To achieve a high level of data protection, Member States should be required to ensure that the processing of sensitive financial information that could reveal a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation should be allowed only to the extent that it is strictly necessary and relevant to a specific investigation, and in accordance with Directive (EU) 2016/680.

Amendment    16

Proposal for a directive

Recital 25

Text proposed by the Commission

Amendment

(25)  Personal data obtained under this Directive should only be processed by competent authorities where it is necessary and proportionate for the purposes of prevention, detection, investigation or prosecution of serious crime.

(25)  Personal data obtained under this Directive should only be processed by competent authorities where it is necessary and proportionate for the purposes of prevention, detection, investigation or prosecution of serious crime and in accordance with Directive (EU) 2016/680.

Amendment    17

Proposal for a directive

Recital 27 a (new)

Text proposed by the Commission

Amendment

 

(27a)  In order to overcome the current cooperation difficulties which exist between national FIUs, a European FIU should be set up in order to coordinate, assist and support Member States FIUs in cross-border cases. It would also be particularly suited to an integrated EU financial market and effective in combating money laundering and terrorist financing in the internal market. The Member States FIU would still be primarily responsible for receiving suspicious transaction reports, analysing them and disseminate them to the national competent authority. The EU FIU would lend support to those Member States especially in maintaining and developing the technical infrastructure for ensuring the exchange of information, assisting them in joint analysis of cross-border cases and strategic analysis, and coordinate the work of Member States FIUs for cross-border cases.

Amendment    18

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  The Commission should report on the implementation of this Directive three years after its date of transposition, and every three years thereafter. In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement on Better Law-Making19 the Commission should also carry out an evaluation of this Directive on the basis of information collected through specific monitoring arrangements in order to assess the actual effects of the Directive and the need for any further action.

(28)  The Commission should report on the implementation of this Directive three years after its date of transposition, and every three years thereafter. This report shall also include an assessment of the need to ensure diagonal cooperation between Financial Intelligence Units and competent authorities in different Member States, and on the need to harmonise the organisation status and role of Financial Intelligence Unites in national law. In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement on Better Law-Making19 the Commission should also carry out an evaluation of this Directive on the basis of information collected through specific monitoring arrangements in order to assess the actual effects of the Directive and the need for any further action.

_________________

_________________

19 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016; OJ L 123, 12.5.2016, p. 1–14.

19 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016; OJ L 123, 12.5.2016, p. 1–14.

Amendment    19

Proposal for a directive

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1.  This Directive lays down measures to facilitate access by competent authorities to financial information and bank account information for the prevention, detection, investigation or prosecution of serious criminal offences. It also provides for measures to facilitate access by Financial Intelligence Units to law enforcement information and to facilitate the cooperation between Financial Intelligence Units.

1.  This Directive lays down measures to facilitate access to and use of financial information and bank account information by competent authorities for the prevention, detection, investigation or prosecution of serious criminal offences. It also provides for measures to facilitate access by Financial Intelligence Units to law enforcement information and to facilitate the cooperation between Financial Intelligence Units where such information is necessary for the prevention, detection and combatting of money laundering, associate predicate offences and terrorist financing.

Amendment    20

Proposal for a directive

Article 1 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b)  the powers of competent authorities to exchange information between them or to obtain information from obliged entities under Union law or the national law of Member States.

(b)  the existing channels to exchange information between competent authorities or their powers to obtain information from obliged entities under Union law or the national law of Member States.

Amendment    21

Proposal for a directive

Article 2 – paragraph 1 – point g – introductory part

Text proposed by the Commission

Amendment

(g)  'bank account information' means the following information contained in the centralised bank account registries:

(g)  'bank account information' means the following information on bank and payments accounts and safe deposit boxes contained in the centralised bank account registries:

Amendment    22

Proposal for a directive

Article 2 – paragraph 1 – point k

Text proposed by the Commission

Amendment

(k)  'financial analysis' means the operational and strategic analysis carried out by the Financial Intelligence Units for the performance of their tasks pursuant to Directive (EU) 2015/849;

(k)  'financial analysis' means the results of operational and strategic analysis carried out by the Financial Intelligence Units for the performance of their tasks pursuant to Directive (EU) 2015/849;

Amendment    23

Proposal for a directive

Article 2 – paragraph 1 – point l a (new)

Text proposed by the Commission

Amendment

 

(la)  'competent authority' means (a) any public authority competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security or (b) any other body or entity entrusted by Member State law to exercise public authority and public powers for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

Amendment    24

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to access and search the national centralised bank account registries set up by the Member States in accordance with Article 32a of Directive (EU) 2015/849. They shall include the Europol National Units and the Asset Recovery Offices.

1.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to access and search the national centralised bank account registries set up by the Member States in accordance with Article 32a of Directive (EU) 2015/849. They shall at least include the Europol National Units and the Asset Recovery Offices.

Amendment    25

Proposal for a directive

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to request and receive financial information or financial analysis from the Financial Intelligence Unit. They shall include the Europol National Units.

2.  Each Member State shall designate among its authorities competent for the prevention, detection, investigation or prosecution of criminal offences the competent authorities empowered to request and receive financial information or financial analysis from the Financial Intelligence Unit. They shall at least include the Europol National Units.

Amendment    26

Proposal for a directive

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  Each Member State shall notify the Commission its designated competent authorities in accordance with paragraphs (1) and (2) by [6 months from transposition date] at the latest, and shall notify the Commission of any amendment thereto. The Commission shall publish the notifications and any amendment thereto in the Official Journal of the European Union.

3.  Each Member State shall notify the Commission its designated competent authorities in accordance with paragraphs (1) and (2) by [6 months from transposition date] at the latest, and shall notify the Commission of any amendment thereto. The Commission shall publish the notifications and any amendment thereto in the Official Journal of the European Union, as well as communicating this directly to Member States' designated competent authorities.

Amendment    27

Proposal for a directive

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the competent authorities designated pursuant to Article 3(1) shall have the power to access and search, directly and immediately, bank account information when necessary for the performance of their tasks for the purposes of preventing, detecting, investigating or prosecuting a serious criminal offence or supporting a criminal investigation concerning a serious criminal offence, including the identification, tracing and freezing of the assets related to such investigation.

1.  Member States shall ensure that the competent authorities designated pursuant to Article 3(1) shall have the power to access and search, directly and immediately, bank account information when necessary for the performance of their tasks for the purposes of preventing, detecting, investigating or prosecuting a serious criminal offence or supporting a criminal investigation concerning a serious criminal offence, including the identification, tracing and freezing of the assets related to such investigation. Access and search is also deemed direct and immediate where the national authorities operating the central bank account registries transmit the bank account information expeditiously by an automated mechanism to competent authorities, provided that no intermediary institution may interfere with the requested data or the information to be provided.

Justification

The amendment is intended to ensure that existing and AMLD V compliant databases can be used to fulfil the requirements of this directive.

Amendment    28

Proposal for a directive

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

2.  The additional information that Member States may deem essential and include in the centralised bank account registries in accordance with Article 32a(4) of Directive 2018/XX/EU shall not be accessible and searchable by competent authorities according to this Directive.

2.  The additional information that Member States may deem essential and include in the centralised bank account registries in accordance with Article 32a(4) of Directive 2018/XX/EU shall not be accessible and searchable by competent authorities on the basis of this Directive.

Amendment    29

Proposal for a directive

Article 5 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Member States shall ensure that staff of the national designated competent authorities maintains high professional standards of confidentiality and data protection.

Amendment    30

Proposal for a directive

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Subject to national procedural safeguards, each Member State shall ensure that its national Financial Intelligence Unit is required to reply to requests for financial information or financial analysis by its designated competent authorities referred to in Article 3(2), where that financial information or financial analysis is necessary, on a case-by-case basis, for the prevention, detection, investigation or prosecution of serious criminal offences.

1.  Subject to national procedural safeguards, each Member State shall ensure that its national Financial Intelligence Unit is required to reply to requests for financial information or financial analysis by designated competent authorities referred to in Article 3(2), where that financial information or financial analysis is necessary, on a case-by-case basis, for the prevention, detection, investigation or prosecution of serious criminal offences.

Amendment    31

Proposal for a directive

Article 7 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  Where there are objective grounds for assuming that the provision of such information would clearly have a negative impact on ongoing investigations or analyses, or, in exceptional circumstances, where disclosure of the information would be clearly disproportionate to the legitimate interests of a natural or legal person or clearly irrelevant with regard to the purposes for which it has been requested, the Financial Intelligence Unit shall be under no obligation to comply with the request for information. Any refusal shall be appropriately explained, stating the reasons for the refusal.

Amendment    32

Proposal for a directive

Article 7 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2 b.  Member States shall require competent authorities referred to in Article 3(2) to provide feedback to the Financial Intelligence Unit on the use made of the information provided in accordance with this Article, and on the outcome of the investigations or inspections performed on the basis of that information. Member States shall put in place appropriate mechanisms to allow for swift and secure exchanges of information and follow-ups on investigations and prosecutions between Financial Investigation Units and competent authorities referred to in Article 3(2).

Amendment    33

Proposal for a directive

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

Subject to national procedural safeguards, each Member State shall ensure that its designated national competent authorities are required to reply to requests for law enforcement information by the national Financial Intelligence Unit, on a case-by-case basis, where the information is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

Subject to national procedural safeguards, each Member State shall ensure that its designated national competent authorities are required to reply in a timely manner to requests for law enforcement information by the national Financial Intelligence Unit, on a case-by-case basis, where the information is necessary for the prevention, detection and combatting of money laundering, associate predicate offences and terrorist financing.

Amendment    34

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall ensure that its Financial Intelligence Unit is enabled to exchange financial information or financial analysis with any Financial Intelligence Unit in the Union where that financial information or financial analysis is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

1.  Each Member State shall ensure that its Financial Intelligence Unit is enabled to exchange financial information or financial analysis free of charge with any Financial Intelligence Unit in the Union where that financial information or financial analysis is necessary for the prevention, detection and combating of money laundering, associate predicate offences and terrorist financing.

Amendment    35

Proposal for a directive

Article 9 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  A Financial Investigation Unit may refuse to exchange information only in exceptional circumstances where the exchange would clearly not be in accordance with fundamental principles of national law, would clearly fall beyond the scope of application of the provisions of this Directive, could lead to impairment of a criminal investigation or would be clearly disproportionate to the legitimate interests of a natural or legal person. Those exceptions shall be specified in a way which prevents undue limitations on the exchange of information for analytical purposes. Any refusal shall be appropriately explained.

Amendment    36

Proposal for a directive

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that where a Financial Intelligence Unit is requested pursuant to paragraph 1 to exchange financial information or financial analysis, it shall do so as soon as possible and in any case no later than three days after the receipt of the request. In exceptional, duly justified cases, this time limit may be extended by a maximum of 10 days.

2.  Member States shall ensure that where a Financial Intelligence Unit is requested pursuant to paragraph 1 to exchange financial information or financial analysis, it shall do so as soon as possible and in any case no later than three days after the receipt of the request. In exceptional, duly justified cases, this time limit may be extended by a maximum of 10 days. The same time limits apply for sending an appropriate explanation in case of refusals based on Article 9(1a).

Amendment    37

Proposal for a directive

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that a request issued pursuant to this Article and its response shall be transmitted by using the dedicated secure electronic communications network FIU.net or its successor. That network shall ensure the secure communication and shall be capable of producing a written record under conditions that allow ascertaining authenticity. In the event of technical failure of the FIU.net, the financial information or financial analysis shall be transmitted by any other appropriate means ensuring a high level of data security.

4.  Member States shall ensure that a request issued pursuant to this Article and its response shall be transmitted by using the dedicated secure electronic communications network FIU.net or its successor. That network shall ensure the secure communication and shall be capable of producing a written record under conditions that allow ascertaining authenticity. In the event of technical failure of the FIU.net, the financial information or financial analysis shall be transmitted by any other appropriate means ensuring an equally high level of data security, also capable of producing a written record under conditions that allow ascertaining authenticity.

Amendment    38

Proposal for a directive

Article 9 a (new)

Text proposed by the Commission

Amendment

 

Article 9a

 

Exchange of information between competent authorities in different Member States

 

1.  Subject to national procedural safeguards, each Member State shall ensure that its designated competent authorities under Article 3 (1) are enabled to exchange information obtained from the access to the national centralised bank account registries set up by the Member States in accordance with Article 32a of Directive (EU)2015/849, upon request, and on a case-by-case basis, where that bank account information is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

 

2.  Subject to national procedural safeguards, each Member State shall ensure that its designated competent authorities under Article 3 (2) are enabled to exchange financial information or financial analysis requested from the Financial Intelligence Unit from that Member State, upon request and on a case-by-case basis from a designated competent authority in another Member State, where that financial information or financial analysis is necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

 

3.  Member States shall ensure that a request issued pursuant to this Article and its response shall be transmitted using dedicated secure electronic communications ensuring a high level of data security. That network shall ensure the secure communication and shall be capable of producing a written record under conditions that allow for ascertaining of authenticity.

Amendment    39

Proposal for a directive

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall ensure that its Europol National Unit replies to duly justified requests related to bank account information made by the Agency for Law Enforcement Cooperation established by Regulation (EU) 2016/794 of the European Parliament and of the Council (‘Europol') on a case-by-case basis within the limits of its responsibilities and for the performance of its tasks.

1.  Each Member State shall ensure that its Europol National Unit replies to duly justified requests related to bank account information made by the Agency for Law Enforcement Cooperation established by Regulation (EU) 2016/794 of the European Parliament and of the Council (‘Europol') on a case-by-case basis within the limits of its investigative powers and for the performance of its tasks.

Amendment    40

Proposal for a directive

Article 10 – paragraph 2

Text proposed by the Commission

Amendment

2.  Each Member State shall ensure that its Financial Intelligence Unit replies to duly justified requests related to financial information and financial analysis made by Europol through the Europol National Unit within the limits of its responsibilities and for the performance of its tasks.

2.  Each Member State shall ensure that its Financial Intelligence Unit replies to duly justified requests related to financial information and financial analysis made by Europol through the Europol National Unit within the limits of its investigative powers and for the performance of its tasks.

Amendment    41

Proposal for a directive

Article 10 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Where there are objective grounds for assuming that the provision of such information would have a negative impact on ongoing investigations or analyses, or, in exceptional circumstances, where disclosure of the information would be clearly disproportionate to the legitimate interests of a natural or legal person or irrelevant with regard to the purposes for which it has been requested, the FIU shall be under no obligation to comply with the request for information. Any refusal shall be appropriately explained.

Amendment    42

Proposal for a directive

Article 10 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Europol shall provide feedback to the Financial Intelligence Unit about the use made of the financial information or financial analysis provided in accordance with this Article and about the outcome of the investigations or inspections performed on the basis of that information or analysis.

Amendment    43

Proposal for a directive

Article 10 a (new)

Text proposed by the Commission

Amendment

 

Article 10a

 

Analysis, Support and Coordination Unit within EUROPOL

 

1.  Europol shall establish a specific unit to support and coordinate cooperation and exchange of information between Financial Intelligence Units. 

 

2.  The unit referred to in paragraph 1 shall be able to assist Financial Intelligence Units in joint analysis of cross-border cases, produce its own analysis and coordinate the work of Financial Intelligence Units in Member States for cross-border cases, whenever necessary for the prevention and combating of money laundering, associate predicate offences and terrorist financing.

Amendment    44

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1.  The processing of personal data related to bank account information, financial information and financial analysis referred to in Article 10(1) and (2) shall be performed only by the persons within Europol who have been specifically designated and authorised to perform those tasks.

1.  The processing of personal data related to bank account information, financial information and financial analysis referred to in Article 10(1) and (2) shall be performed only by the persons within Europol who have been specifically designated and authorised to perform those tasks. The processing of personal data shall be carried out in compliance with the data protection safeguards provided for in Regulation (EU) 2016/794. Europol shall duly document those processing operations.

Amendment    45

Proposal for a directive

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

1.  The processing of information revealing a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation may only be allowed to the extent that it is strictly necessary and relevant in a specific case

1.  The processing of personal data revealing a person's race or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation shall only be allowed to the extent that there are objective grounds to consider this necessary and relevant in a specific case, in accordance with Article 10 of Directive (EU) 2016/680.

Amendment    46

Proposal for a directive

Article 14 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  the requests made pursuant to this Directive and their executing measures.

(c)  the subject matter of the requests made pursuant to this Directive and their executing measures.

Amendment    47

Proposal for a directive

Article 15 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

Member States shall adopt legislative measures restricting, in whole or in part, the data subject's right of access to personal data relating to him or her processed under this Directive in order to:

Member States shall adopt legislative measures restricting, in whole or in part, the data subject's right of access to personal data relating to him or her processed under this Directive in accordance with Article 15(1) of Directive (EU) 2016/680 in order to:

Amendment    48

Proposal for a directive

Article 15 a (new)

Text proposed by the Commission

Amendment

 

Article 15a

 

European Financial Intelligence Unit

 

The Commission shall set up a European Financial Intelligence Unit (EFIU) to facilitate coordination, including the exchange of information between FIUs within the Union. The EFIU shall coordinate, assist and support Member Sates FIUs in cross-border cases. The EFIU shall lend support to those Member States especially in maintaining and developing the technical infrastructure for ensuring the exchange of information, assisting them in joint analysis of cross border cases and strategic analysis, and coordinate the work of Member States FIUs for cross-border cases. The Commission shall provide the EFIU with adequate financial, human and technical resources in order to fulfil its tasks.

Amendment    49

Proposal for a directive

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall review the effectiveness of their systems to combat serious criminal offences by maintaining comprehensive statistics.

1.  Member States shall review the effectiveness and efficiency of their systems with regard to the use of financial and other information for the prevention, detection, investigation or prosecution of criminal offences by maintaining comprehensive statistics.

Amendment    50

Proposal for a directive

Article 19 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  By [OJ please insert date: three years after the date of transposition of this Directive] at the latest, the Commission shall draw up a report assessing the necessity of specific measures to ensure diagonal cooperation, i.e. cooperation between Financial Intelligence Units in one Member States with competent authorities in another Member State. The report shall be submitted to the European Parliament and to the Council, and be accompanied by a legislative proposal, if considered necessary.

Amendment    51

Proposal for a directive

Article 19 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.  By [OJ please insert date: three years after the date of transposition of this Directive] at the latest, the Commission shall draw up a report assessing the necessity of specific measures to ensure uniformisation of the organisational status and role conferred to Financial Intelligence Units under the national law of Member States, to ensure efficient cooperation and exchange of information. The report shall be submitted to the European Parliament and to the Council, and be accompanied by a legislative proposal, if considered necessary.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences

References

COM(2018)0213 – C8-0152/2018 – 2018/0105(COD)

Committee responsible

       Date announced in plenary

LIBE

28.5.2018

 

 

 

Opinion by

       Date announced in plenary

ECON

28.5.2018

Rapporteur

       Date appointed

Bernd Lucke

31.5.2018

Previous rapporteur

Sander Loones

Discussed in committee

22.10.2018

27.11.2018

 

 

Date adopted

27.11.2018

 

 

 

Result of final vote

+:

–:

0:

43

0

2

Members present for the final vote

Hugues Bayet, Pervenche Berès, Thierry Cornillet, Esther de Lange, Jonás Fernández, Giuseppe Ferrandino, Stefan Gehrold, Sven Giegold, Brian Hayes, Gunnar Hökmark, Danuta Maria Hübner, Petr Ježek, Georgios Kyrtsos, Philippe Lamberts, Werner Langen, Bernd Lucke, Olle Ludvigsson, Ivana Maletić, Fulvio Martusciello, Marisa Matias, Gabriel Mato, Alex Mayer, Bernard Monot, Caroline Nagtegaal, Luděk Niedermayer, Stanisław Ożóg, Anne Sander, Alfred Sant, Martin Schirdewan, Molly Scott Cato, Pedro Silva Pereira, Peter Simon, Theodor Dumitru Stolojan, Kay Swinburne, Paul Tang, Ramon Tremosa i Balcells, Marco Valli, Miguel Viegas, Jakob von Weizsäcker

Substitutes present for the final vote

Jeppe Kofod, Thomas Mann, Luigi Morgano, Andreas Schwab, Joachim Starbatty, Lieve Wierinck

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

43

+

ALDE

Thierry Cornillet, Petr Ježek, Caroline Nagtegaal, Ramon Tremosa i Balcells, Lieve Wierinck

ECR

Bernd Lucke, Stanisław Ożóg, Joachim Starbatty, Kay Swinburne

GUE/NGL

Marisa Matias, Martin Schirdewan, Miguel Viegas

PPE

Stefan Gehrold, Brian Hayes, Gunnar Hökmark, Danuta Maria Hübner, Georgios Kyrtsos, Werner Langen, Ivana Maletić, Thomas Mann, Fulvio Martusciello, Gabriel Mato, Luděk Niedermayer, Anne Sander, Andreas Schwab, Theodor Dumitru Stolojan, Esther de Lange

S&D

Hugues Bayet, Pervenche Berès, Jonás Fernández, Giuseppe Ferrandino, Jeppe Kofod, Olle Ludvigsson, Alex Mayer, Luigi Morgano, Alfred Sant, Pedro Silva Pereira, Peter Simon, Paul Tang, Jakob von Weizsäcker

Verts/ALE

Sven Giegold, Philippe Lamberts, Molly Scott Cato

0

-

 

 

2

0

EFDD

Bernard Monot, Marco Valli

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences

References

COM(2018)0213 – C8-0152/2018 – 2018/0105(COD)

Date submitted to Parliament

17.4.2018

 

 

 

Committee responsible

       Date announced in plenary

LIBE

28.5.2018

 

 

 

Committees asked for opinions

       Date announced in plenary

AFET

28.5.2018

ECON

28.5.2018

 

 

Not delivering opinions

       Date of decision

AFET

16.5.2018

 

 

 

Rapporteurs

       Date appointed

Emil Radev

4.6.2018

 

 

 

Discussed in committee

11.6.2018

15.10.2018

20.11.2018

3.12.2018

Date adopted

3.12.2018

 

 

 

Result of final vote

+:

–:

0:

29

2

6

Members present for the final vote

Heinz K. Becker, Monika Beňová, Malin Björk, Michał Boni, Caterina Chinnici, Cornelia Ernst, Romeo Franz, Kinga Gál, Sylvie Guillaume, Monika Hohlmeier, Filiz Hyusmenova, Sophia in ‘t Veld, Dietmar Köster, Barbara Kudrycka, Cécile Kashetu Kyenge, Juan Fernando López Aguilar, Roberta Metsola, Claude Moraes, Ivari Padar, Judith Sargentini, Birgit Sippel, Branislav Škripek, Helga Stevens, Traian Ungureanu, Udo Voigt, Josef Weidenholzer, Kristina Winberg, Auke Zijlstra

Substitutes present for the final vote

Carlos Coelho, Gérard Deprez, Anna Hedh, Emilian Pavel, Christine Revault d’Allonnes Bonnefoy, Barbara Spinelli, Josep-Maria Terricabras

Substitutes under Rule 200(2) present for the final vote

Max Andersson, France Jamet

Date tabled

7.12.2018


FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

29

+

ALDE

Gérard Deprez, Filiz Hyusmenova, Sophia in 't Veld

ECR

Helga Stevens

PPE

Heinz K. Becker, Michał Boni, Carlos Coelho, Kinga Gál, Monika Hohlmeier, Barbara Kudrycka, Roberta Metsola, Traian Ungureanu

S&D

Monika Beňová, Caterina Chinnici, Sylvie Guillaume, Anna Hedh, Dietmar Köster, Cécile Kashetu Kyenge, Juan Fernando López Aguilar, Claude Moraes, Ivari Padar, Emilian Pavel, Christine Revault d'Allonnes Bonnefoy, Birgit Sippel, Josef Weidenholzer

VERTS/ALE

Max Andersson, Romeo Franz, Judith Sargentini, Josep-Maria Terricabras

2

-

ENF

Auke Zijlstra

NI

Udo Voigt

6

0

ECR

Branislav Škripek, Kristina Winberg

ENF

France Jamet

GUE/NGL

Malin Björk, Cornelia Ernst, Barbara Spinelli

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Last updated: 7 December 2018Legal notice