Case C‑790/19

Parchetul de pe lângă Tribunalul Braşov

LG
and
MH

(Request for a preliminary ruling from the Curtea de Apel Braşov)

Judgment of the Court (Second Chamber), 2 September 2021

(Reference for a preliminary ruling – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive (EU) 2015/849 – Directive 2005/60/EC – Offence of money laundering – Laundering by the perpetrator of the predicate offence (‘self-laundering’))

Approximation of laws – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive 2005/60 – Purpose – Offence of money laundering distinguishable from the predicate offence from which the laundered money is derived – Identity of the perpetrator of the two offences – Whether permissible

(European Parliament and Council Directive 2005/60, Art. 1(2)(a))

(see paragraphs 48-54, 86 and operative part)
Approximation of laws – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directives 2005/60 and 2015/849 – Offence of money laundering committed by the perpetrator of the predicate offence from which the laundered money is derived – Possibility for Member States to criminalise the offence of money laundering as regards the perpetrator of the predicate offence – Whether permissible

(European Parliament and Council Directive 2005/60, Art. 1(2)(a); European Parliament and Council Directive 2015/849, Art. 1(3)(a))

(see paragraphs 58-61, 65, 70-72)
Fundamental rights – Principle non bis in idem – Conditions under which applicable – Existence of the same offence – Criterion for assessment – Identity of the material facts

(Charter of Fundamental Rights of the European Union, Art. 50)

(see paragraphs 77-80)
Approximation of laws – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive 2005/60 – Purpose – Offence of money laundering distinguishable from the predicate offence from which the laundered money is derived – Distinguishable acts – Possibility for the perpetrator of the predicate offence to be prosecuted for the offence of money laundering – Whether permissible in the light of the principle non bis in idem – A matter for the national court to ascertain – Scope

(Charter of Fundamental Rights of the European Union, Art. 50; European Parliament and Council Directive 2005/60, Art. 1(2)(a))

(see paragraphs 81-85)

Résumé

LG, the manager of a company, was sentenced by the Tribunalul Brașov (Regional Court, Brașov, Romania) to imprisonment, with a conditional suspension of execution of the sentence, for the offence of money laundering in respect of 80 acts committed between 2009 and 2013. The funds in question were derived from the offence of tax evasion committed by the same person (‘the predicate offence’).

Hearing the appeals brought against that judgment, the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania), the referring court, harboured doubts as to whether the perpetrator of the predicate offence and the perpetrator of the offence of money laundering can be the same person.

In its judgment, the Court finds that Directive 2005/60 ( 1 ) does not preclude national legislation which provides that the offence of money laundering may be committed by the perpetrator of the predicate offence.

Findings of the Court

The Court points out, first, that the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his or her action is an act which, when committed intentionally, is to be regarded as constituting the offence of money laundering. ( 2 ) Consequently, for a person to be regarded as the perpetrator of that offence, that person must be aware that the property is derived from criminal activity or from an act of participation in such activity. Since that condition is necessarily satisfied as regards the perpetrator of the predicate offence, Directive 2005/60 does not preclude that person from also being the perpetrator of the offence of money laundering. Furthermore, in so far as such conduct constitutes a contingent act which does not automatically result from the predicate offence, it may be committed both by the perpetrator of the predicate offence and by a third party.

Next, the Court analyses the legislative context of Directive 2005/60, and, in particular, the international commitments of the Member States ( 3 ) and the EU measures ( 4 ) in force on the date of its adoption. In that regard, the Court states that, on that date, it was open to the Member States not to criminalise, under their penal law, as regards the perpetrator of the predicate offence, acts which constitute money laundering. The obligation on the Member States to prohibit certain acts of money laundering, without prescribing the means for implementing such a prohibition, and the definition of money laundering in a manner which permits, but does not require, the criminalisation of those acts as regards the perpetrator of the predicate offence, leave that decision to the Member States, ( 5 ) in accordance with their international commitments and the fundamental principles of their domestic law. Furthermore, it was only Directive 2018/1673 ( 6 ) which imposed an obligation on the Member States to criminalise such conduct.

Lastly, the Court states that that criminalisation is in line with the objectives of Directive 2005/60, in so far as it is liable to make the introduction of criminal funds into the financial system more difficult and thereby contributes to the proper functioning of the internal market. Consequently, a Member State may criminalise, as regards the perpetrator of the predicate offence, the offence of money laundering.

Furthermore, as regards the principle non bis in idem, ( 7 ) and, in particular, the prohibition on prosecuting or punishing under criminal law a person for the same offence, the Court points out that the relevant criterion is the identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together which resulted in the final acquittal or conviction of the person concerned. Accordingly, the imposition, with respect to identical facts, of several criminal penalties at the conclusion of different proceedings brought for those purposes is prohibited. In the present case, the principle non bis in idem does not preclude the perpetrator of the predicate offence from being prosecuted for the offence of money laundering where the facts in respect of which the prosecution is brought are not identical to those constituting the predicate offence. In that regard, the Court states that money laundering constitutes an act distinguishable from the predicate offence, even if that money laundering is carried out by the perpetrator of the predicate offence.

The Court clarifies the scope of the national court’s obligations of verification. Thus, the national court must determine whether the predicate offence was the subject of criminal proceedings in which the perpetrator was finally acquitted or convicted and satisfy itself that the material facts constituting the predicate offence are not identical to those in respect of which the perpetrator is prosecuted for money laundering.

( 1 ) Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purposes of money laundering and terrorist financing (OJ 2005 L 309, p. 15), Article 1(2)(a).

( 2 ) Article 1(2)(a) of Directive 2005/60.

( 3 ) The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, signed in Strasbourg on 8 November 1990 (European Treaty Series No 141).

( 4 ) Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ 2001 L 182, p. 1).

( 5 ) Article 1(1) and Article 1(2)(a) of Directive 2005/60.

( 6 ) Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law (OJ 2018 L 284, p. 22).

( 7 ) Article 50 of the Charter of Fundamental Rights of the European Union.