Читать книгу Anti-Money Laundering State Mechanisms - Michele Sciurba - Страница 14

The Global Financial Crisis (GFC) of 2008/2009 was an international threat to the overall stability of the financial markets in the Western world and revealed significant gaps in the national financial regulatory regimes and international financial law. It originated with the collapse of the US real estate market, as the leading banks and financial institutions in Europe and the world adopted complex securitisation processes the US financial institutions used to create mortgage-related securities. In the course of the evolving crisis, Lehman Brothers went bankrupt, the largest insurance group of the world, AIG, had to be nationalised by the US government, and bailouts of various state banks became necessary in Germany. The EU, the United Kingdom (UK) and the US provided billions to avoid a collapse of the financial markets.⁶⁴ The fact that even the US financial system was not immune to the risk of a systemic financial crisis was decisive for the creation of a new system of global financial market regulation. In order to set new global regulatory standards, the G20 remodelled the Financial Stability Forum (FSF) into the Financial Stability Board (FSB). The main objective of restructuring has been the implementation of a macro-prudential supervision of the financial system to prevent systemic risks.⁶⁵ Accordingly, the new supervisory system within the EU, the European Systemic Risk Board (ESRB), focuses on macro-prudential supervision.

In view of the lessons learned from the GFC, the UK and many other industrialised countries established risk-based regulation at national level. Since 2009 at the latest, the International Organization of Securities Commissions (IOSCO) guidance⁶⁶ has established the risk-based approach as global standard in most economies.⁶⁷ Although the GFC has not created a new approach to AML and CTF regimes, it has accelerated the creation of a transnational network in the fight against organised crime, corruption, and terrorism financing, and led to the criminalisation of tax evasion.⁶⁸ Having said that, the USA Patriot Act had already intensified the fight against ML and TF in the US before the GFC by including tax evasion as an offence in section 371(a)(3). At the EU level, the Third Anti-Money Laundering Directive (3rd AMLD)⁶⁹ implemented the FATF 40+9 Recommendations prior to the crisis, integrating CTF into existing AML objectives.⁷⁰ In the UK, the 3rd AMLD was implemented into national law in 2007.

The GFC placed the focus on significant problems such as the lack of macro-prudential supervision, the immense costs that the individual states have had to bear for restoring financial market stability, and the moral hazard effect. Yet, above all, it raised the question of fiscal and social justice, making the fight against tax evasion a regulatory aim.⁷¹ Coupled with increased international cooperation and coordination to prevent systemic risks in order to maintain financial market stability, the GFC has intensified international AML/CTF cooperation. The integration of tax offences into the global AML/CTF regime became a new target of the global regulatory strategy of the OECD countries. Today, the catch-all approach of the AML/CTF regulations in the US includes tax offences as a predicate offence for ML. The same is true in the EU under the 4th AMLD. Yet, in contrast to the US, the lack of criminal law harmonisation within the EU member states is a significant problem that will have to be solved in the future.