欧洲议会跟欧盟理事会《关于修订理事会关于防止利用金融系统洗.docx

1、欧洲议会跟欧盟理事会关于修订理事会关于防止利用金融系统洗欧洲议会和欧盟理事会关于修订理事会（关于防止利用金融系统洗钱的指令）的指令（2001） Council Directive on Prevention of the Use of the Financial System for the Purpose of Money Laundering 背景：1991年6月10日，欧洲共同体理事会在卢森堡通过了欧盟的第一个反洗钱指令，即关于防止利用金融系统洗钱的指令（91/308/EEC）。该指令的颁布考虑到建立欧洲经济共同体的条约，以及反洗钱行动与金融系统的密切相关性和其国际协作的本质。 2001

2、年12月，欧洲议会和欧盟理事会在布鲁塞尔通过了欧盟的第二个反洗钱指令，即关于修订理事会的指令（2001/97/EC）。2001/97/EC号指令考虑到建立欧盟的条约、服务贸易总协议（General Agreement on Trade in Service）的原则以及国际洗钱的新趋势，通过修订 “信用机构”和“金融机构”的界定等来最大范围地覆盖金融业，对上游犯罪做出了进一步的核定，将履行必要义务的对象进行了扩展，对公证人等专业人员的相关行为和成员国应负义务做出了一定规定。 其中91/308/EEC号指令的第1、3、6、7、9、11条由2001/97/EC中的新条款代替，第2、8、10条分别添加

3、了新内容，而第4、5、8、10、12条中的部分术语做了替代。本文以修订后的指令为准。 Article 1 For the purpose of this Directive: (A) Credit institution means a credit institution, as defined in Article 1(1) first subparagraph of Directive 2000/12/EC(9) and includes branches within the meaning of Article 1(3) of that Directive1 and located

4、in the Community2, of credit institutions having their head offices inside or outside the Community; (B) Financial institution means: 1. an undertaking3 other than a credit institution whose principal activity is to carry out one or more of the operations included in numbers 2 to 12 and number 14 of

5、 the list set out in Annex I to Directive 2000/12/EC; these include the activities of currency exchange offices (bureaux de change)4 and of money transmission/remittance offices5; 2. an insurance company duly authorised in accordance with Directive 79/267/EEC(10), insofar6 as it carries out activiti

6、es covered by that Directive; 3. an investment firm as defined in Article 1(2) of Directive 93/22/EEC(11); 4. a collective investment undertaking7 marketing its units8 or shares. This definition of financial institution includes branches located in the Community of financial institutions, whose head

7、 offices are inside or outside the Community, (C) Money laundering means the following conduct when committed intentionally: - 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 con

8、cealing 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 action; - the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or

9、ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity; - the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity or from an act of participati

10、on in such activity; - participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the foregoing indents. Knowledge, intent or purpose required as an element of the abovementioned activities may be i

11、nferred from objective factual circumstances. Money laundering shall be regarded as such even where the activities which generated the property to be laundered were carried out in the territory of another Member State or in that of a third country. (D) Property means assets of every kind, whether co

12、rporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interests in such assets. (E) Criminal activity means any kind of criminal involvement in the commission of a serious crime. Serious crimes are, at least: - any of the offe

13、nces defined in Article 3(1)(a) of the Vienna Convention9; - the activities of criminal organisations as defined in Article 1 of Joint Action 98/733/JHA(12); - fraud, at least serious, as defined in Article 1(1) and Article 2 of the Convention on the protection of the European Communities financial

14、interests(13); - corruption; - an offence which may generate substantial proceeds and which is punishable by a severe sentence of imprisonment in accordance with the penal law10 of the Member State. Member States shall before 15 December 2004 amend the definition provided for in this indent in order

15、 to bring this definition into line with the definition of serious crime of Joint Action 98/699/JHA. The Council invites the Commission to present before 15 December 2004 a proposal for a Directive amending in that respect this Directive. Member States may designate11 any other offence as a criminal activity for the purposes of this Directive. (F) Competent authorities means the national authorities empowered by law or regulation to supervise the activity of any of the institutions or persons subject to this Directive. Article 2 (A) Member States shall ensure that the obligations laid dow