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Thursday, 15 May 2003 - Strasbourg Final edition
Customs cooperation to combat money laundering ***I
P5_TA(2003)0214A5-0073/2003
Resolution
 Consolidated text
 Annex

European Parliament legislative resolution on the proposal for a regulation of the European Parliament and the Council on the prevention of money laundering by means of customs cooperation (COM(2002) 328 – C5-0291/2002 – 2002/0132(COD))

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to Parliament and the Council (COM(2002) 328)(1) ,

–   having regard to Article 251(2) and Article 135 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0291/2002),

–   having regard to the opinion of the Committee on Legal Affairs and the Internal Market on the proposed legal basis,

–   having regard to Rule 67 and Rule 63 of its Rules of Procedure,

–   having regard to the report of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the opinion of the Committee on Economic and Monetary Affairs (A5-0073/2003),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

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

(1) OJ C 227 E, 24.9.2002, p. 574.


Position of the European Parliament adopted at first reading on 15 May 2003 with a view to the adoption of European Parliament and Council Directive 2003/.../EC on the prevention of money laundering by means of customs cooperation
P5_TC1-COD(2002)0132

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 135 thereof,

Having regard to the proposal from the Commission(1) ,

Having regard to the opinion of the Economic and Social Committee(2) ,

Acting in accordance with the procedure referred to in Article 251 of the Treaty(3) ,

Whereas:

(1)  Money laundering via cross-border cash movements represents a threat to the security and financial interests of the Member States and the Community. This threat can be effectively combated by the customs administrations. Customs officials are present at the borders, which is where controls are most effective. Indeed, some have built up practical experience in the matter. They are, moreover, able to control both cash and the valuables that are substitutes for it.

(2)  Furthermore, customs administrations are already familiar with international cooperation , and in particular the exchange of information pursuant to Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters(4) , and to the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations(5) .

(3)  Account should also be taken of complementary activities carried out in other international fora . In particular, Recommendation No 22 of the OECD's Financial Action Task Force on money laundering calls on governments to take measures to detect cash movements.

(4)  Recourse to customs cooperation is necessary because the measures introduced by Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering(6) cover only money laundering operations conducted through credit institutions, financial institutions and certain professions.

(5)  The consequence is that large sums of money of dubious origin which cannot be detected by this mechanism are entering and leaving the Community . Some Member States have nevertheless taken initiatives outside the framework of the Community and introduced legislation allowing their customs services to perform controls on such sums. Other Member States, however, have no such legislation. The probability of detecting money laundering therefore depends on the Member State through which cash is brought in or taken out. This diminishes the protection afforded by the external borders against money laundering.

(6)  The existing legislation should therefore be supplemented by having recourse to customs cooperation arrangements under Article 135 of the Treaty, which now gives formal expression to customs cooperation , in conjunction with Article 95 of the Treaty, which governs the approximation of the laws, regulations and administrative provisions of the Member States in connection with the functioning of the internal market . This should serve to harmonise the control methods instituted by national law and enable all the Community's customs administrations to gather information on cash entering or leaving the Community customs territory in sums equal to those covered by Directive 91/308/EEC. In these circumstances, the most appropriate way to gather such information is for Member States to impose a declaration or a disclosure obligation . In case of suspicion, the information should be transmitted to the authorities which, by virtue of Directive 91/308/EEC, coordinate action against money laundering.

(7)  Where the obligation to declare applies, sums of EUR 15 000 or more in cash should be declared at the external borders. Where the obligation to disclose applies, at the request of an official of the competent authorities, sums of EUR 15 000 or more in cash should be disclosed to that official. Member States may choose one of the procedures.

(8 )  It is desirable to establish the definitions needed for a uniform interpretation of this Directive . The term "competent authorities" should cover not only the customs administrations, which bear primary responsibility for these rules, but any non-customs services which, subject to their remit and to each Member State's specific administrative arrangements, contribute to this Directive's implementation. This definition will cover cases in which departments other than customs, such as police and border guards, are authorised to receive and check such declarations. In addition, "cash" should encompass the whole range of fungible assets.

(9 )  As far as geographical scope is concerned, in conformity with the requirements of the Treaty, and in particular Article 299(3), (4) and (6)(c) thereof, Directive 91/308/EEC does not apply to certain European countries and territories, including Monaco, the Channel Islands and the Isle of Man. Attention should therefore be paid to the risk of money laundering attaching to such countries and territories, and special arrangements should be made in their regard. The declaration should be given on demand, on entering or leaving such countries and territories, regardless of whether the movement is within the Community or to a non-member country.

(10 )  In order to combine this Directive with national law governing money laundering, provision should be made for the automatic transmission of information gathered by controls. Such information should be accessible to the customs services of the Member State of residence and, as the case may be, the Member State of origin or destination, and also to the money laundering authorities of the Member States concerned. Where relevant, the information should also be transmitted to the Commission. Similarly, provision should be made for certain information to be transmitted whenever there are suspicions over repeated cash movements involving sums lower than the threshold laid down.

(11 )  Customs officials should be vested with the powers needed to exercise effective control.

(12 )  The powers of customs authorities should be supplemented by the Member States being obliged to lay down penalties. However, penalties should only be imposed for failure to make a declaration or disclosure , not for money laundering offences brought to light by the customs controls set out in this Directive . Though genuinely dissuasive penalties are called for, fines should nevertheless be restricted as to their amount. The absence of any limit would enable Member States to impose fines so high as unduly to compromise the principle of the free movement of capital, or even to negate it altogether.

(13 )  Provision should be made, in the event of cash movements connected with terrorism, for information gathered to be transmitted, under certain conditions, to non-member countries.

(14 )  This Directive in no way affects the application of general or specific Community rules on administrative cooperation , especially with regard to customs or the protection of the Community's financial interests, in particular where those rules might improve or strengthen the current mechanisms for administrative cooperation .

(15 )  Since the objective of the Directive , namely strengthening customs cooperation in the fight against money laundering, cannot be sufficiently achieved by the Member States and can therefore, by reason of the transnational scale of money laundering in the internal market, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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 that objective.

(16 )  This act respects the fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union,

HAVE ADOPTED THIS DIRECTIVE :

Article 1

Member States' right to choose

1.  Member States shall ensure that money laundering is combated by imposing checks on sums of EUR 15 000 or more in cash entering or leaving the Community customs territory.

2.  In that connection, Member States may choose between the procedures laid down in Articles 2 and 3.

Article 2

Obligation to declare

1.  Member States may introduce an obligation to declare whereby any natural person entering or leaving the Community customs territory and carrying a sum of EUR 15 000 or more in cash is obliged to declare that sum in accordance with this Directive .

This obligation shall also apply to any natural person entering or leaving those parts of the Community customs territory to which Directive 91/308/EEC does not apply and carrying a sum of EUR 15000 or more in cash .

2.  The obligation to declare shall not have been fulfilled unless the person referred to in paragraph 1 has completed the declaration form corresponding to the specimen in the Annex and handed it in to the customs office of the Member State through which he is entering or leaving the Community customs territory or parts of the Community customs territory to which Directive 91/308/EEC does not apply.

Moreover, the obligation to declare is not fulfilled if the information given is incorrect or incomplete.

3.  In order to check that the obligation to declare has been fulfilled, the competent authorities shall be empowered, even where there is no prior evidence that an offence is being committed, to control persons and their baggage, to question persons about the provenance, the economic beneficiary and the intended use of the cash found in the course of such controls and to detain such cash by administrative decision.

Cash may be detained for up to three working days; that period may, however, be extended once up to a period of one month in accordance with national law.

The period shall, in any event, be no longer than is necessary for the investigation.

Article 3

Obligation to disclose

1.  Member States may also introduce an obligation to disclose whereby any natural person entering or leaving the Community customs territory and carrying a sum of EUR 15 000 or more in cash is obliged, at the request of an official of the competent authorities, to disclose the nature, amount and value of that cash and give details of its provenance, economic beneficiary and intended use. In addition, the first subparagraph of Article 2(3) shall apply, mutatis mutandis.

2.  Member States shall ensure that officials of the competent authorities secure the cash referred to in paragraph 1 and take it into customs detention for up to three working days following its discovery in order to establish its provenance, economic beneficiary and intended use. That period may be extended once up to a period of one month in accordance with national law. The period shall, in any event, be no longer than is necessary for the investigation.

Article 4

Definitions

For the purposes of this Directive :

   1) "Community customs territory" shall mean the territory of the Member States referred to in Article 3(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(7) .
   2) "Competent authorities" shall mean the customs authorities of the Member States and the other authorities responsible for applying this Directive .
  3) "Cash" shall mean:
   a) currency (banknotes, coins);
   b) cheques ;
   c) any anonymous or bearer certificate of a financial or monetary character which is convertible into cash, irrespective of the issuer, and in particular negotiable securities and other bonds.

Article 5

Reporting

1.  Where there is material or circumstantial evidence that cash is being carried for the purposes of money laundering operations, information obtained through the declaration or disclosure procedure or subsequent controls shall automatically be transmitted to the competent authorities of, respectively, the Member State of residence of the person concerned and the Member State through which that person entered or left the Community customs territory.

It shall also be transmitted to the national authorities responsible under Article 6, in conjunction with Article 1, of Directive 91/308/EEC for combating money laundering in the country through which the person concerned entered or left the Community customs territory.

Member States shall also forward the information obtained by means of the procedures laid down in Articles 2 and 3 to a database jointly administered by the Member States and held by the European Police Office (Europol). In that connection, Member States shall enjoy equal access to the database. The database shall be accessible only in connection with measures to combat money laundering.

Where the money laundering operations appear to involve the proceeds of fraud or any other illegal activity adversely affecting the financial interests of the Community, the information shall also be transmitted to the Commission.

2.  Where there is material or circumstantial evidence that a natural person is repeatedly entering or leaving the Community customs territory or parts of the Community customs territory to which Directive 91/308/EEC does not apply with sums of cash lower than the threshold fixed in Article 1, the name of that person, his nationality and the registration number of the means of transport used may also be transmitted, with the material or circumstantial evidence, to the competent authorities and, in the circumstances described in paragraph 1, to the Commission.

3.  The provisions of Titles V and VI of Regulation (EC) No 515/97 shall apply mutatis mutandis to the transmission of information gathered pursuant to this Directive .

Article 6

Penalties

1.  Without prejudice to the penalties applicable in the event of money laundering, the Member States shall, in accordance with their national legislation, ensure that proceedings are initiated against those responsible where controls or inspections carried out under this Directive establish that the obligations laid down in Article 2 or 3 have not been fulfilled.

Those proceedings shall, in accordance with the relevant provisions of national law, be such as to produce effects proportionate to the seriousness of the offence constituted by the failure to make a declaration or disclosure or the lodging of an inaccurate or incomplete declaration or disclosure , and thereby deter others from committing offences of a similar nature.

2.  The level of fines resulting from the proceedings referred to in paragraph 1 may not exceed a quarter of the sum carried.

3.  Member States shall notify to the Commission, at the latest by 31 December 2004 , the applicable penalties in the event of non-compliance with the obligations laid down in Article 2 or 3 .

Article 7

Relations with non-member countries

1.  Where there is material or circumstantial evidence that cash is being carried for the purposes of money laundering operations by or for terrorist groups, the information obtained under this Directive may be divulged to a non-member country, with the consent of the competent authorities having provided the information and subject to compliance with their internal provisions on the transfer of personal data to non-member countries.

2.  Member States shall notify the Commission of exchanges of information with non-member countries in the course of mutual administrative assistance where particularly relevant to the effectiveness of action against money laundering under this Directive and where such information falls within the scope of this Directive .

Article 8

Transposition into national law

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2004, at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

2.  Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive together with a table showing how the provisions of this Directive correspond to the national provisions adopted.

Article 9

Report

The Commission shall, by 31 December 2006 at the latest, draw up a report on the application of this Directive and submit that report to the European Parliament and the Council.

Article 10

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

Article 11

Addressees

This Directive is addressed to the Member States.

Done at,

For the European Parliament For the Council

The President The President

(1) OJ C 227 E, 24.9.2002, p. 574.
(2) OJ C …
(3) Position of the European Parliament of 15 May 2003.
(4) OJ L 82, 22.3.1997, p. 1.
(5) OJ C 24, 23.1.1998, p. 2.
(6) OJ L 166, 28.6.1991, p. 77; Directive as last amended by Directive 2001/97/EC of the European Parliament and of the Council (OJ L 344, 28.12.2001, p. 76).
(7) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by European Parliament and Council Regulation (EC) No 2700/2000 (OJ L 311, 12.12.2000, p. 17).


ANNEX

DECLARATION FORM

I hereby declare that I am carrying a total of EUR 15 000 or more in the form of the sums, bonds or securities listed below.

TYPE OF DECLARATION

ENTERING THE COMMUNITY

Yes/No (*)

LEAVING THE COMMUNITY

Yes/No (*)

DECLARANT

SURNAME, FIRST NAME

Address (main residence)

Nationality

Date of birth

Place of birth

IDENTITY OF THE OWNER OF THE FUNDS (if they are being carried for another person)

SURNAME, FIRST NAME

Address (main residence)

Nationality

INTENDED RECIPIENT OF THE FUNDS

SURNAME, FIRST NAME

Address (main residence)

Nationality

(*)

AMOUNT

CURRENCY

NATURE OF THE SUMS, BONDS OR SECURITIES:

Banknotes, coins

Yes/No

Traveller's cheques/postal cheques

Yes/No

Any other anonymous or bearer certificates of a financial or monetary character, such as negotiable securities and other bonds

Yes/No

TOTAL

(in €)

PURPOSE OF THE FUNDS

.

.

.

ROUTE

Country of origin/Member State of departure

Country of provenance/Member State of exit

Member State/Country of final destination

MEANS OF TRANSPORT

AIR

Yes/No

SEA

Yes/No

ROAD

Yes/No

RAIL

Yes/No

(*) Delete as applicable.

In the event of inaccurate or incomplete information, the signatory will be considered not to have fulfilled the obligation to declare.

Place, Date and Signature

Last updated: 30 April 2004Legal notice