The legislative framework

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The anti-money laundering system serves to prevent the proceeds of criminal activity from being channeled into legitimate activities, in order to preserve stability, integrity, correct functioning, and competition in the financial markets and in the broader economy and society. At the same time, the preventive system is a significant weapon in the suppression of crime itself, insofar as it impedes the reinvestment and concealment of those proceeds. The anti-money-laundering apparatus, thanks to its ability to detect and reconstruct criminal conduct, is also used to combat the financing of terrorism and the proliferation of weapons of mass destruction.

Italian legislation has developed in line with international standards and European directives. The framework now consists of  Legislative Decree 231/2007, transposing Directive 2005/60/EC  (the third anti-money laundering Directive) and rationalizing a series of laws that had accreted over time. Legislative Decree 109/2007 had already transposed the Directive about terrorist financing and countries whose actions threaten international peace and security.

Consistent with Community law, Legislative Decree 231/2007 adopted a definition of money laundering that includes self-money laundering, namely transactions executed by the perpetrators or accomplices of the predicate offence, i.e., the crime whose proceeds are being transferred (Article 2). However, the criminal law long considered self-laundering as a mere post-factum to the original crime and so not punishable in itself. On 4 December 2014 the Senate passed a bill on the declaration and re-entry of funds held abroad and on self-money-laundering, making the latter a crime, thus attributing penal relevance to the actions specified in the amended Article 648-ter[1] of the Penal Code.

The system for preventing money laundering is based on cooperation between financial and other institutions and the administrative and law enforcement authorities. As a general principle, the measures are proportionate to the risks (Article 3). The law requires the addressee institutions to fulfil specified obligations and comply with specified rules: customer due diligence and registration of relationships and transactions in a Single database (Articles 15-39); detection and reporting of suspicious transactions, which constitutes “active cooperation” (Articles 41-48); and dedicated organizational and training measures, which must underlie performance of the reporting obligations (Articles 7[2] and 54). There are limits on cash transactions and requirements for fund transfers to be effected via supervised intermediaries (for purposes of traceability), which serve to impede conduct marked by a high money-laundering risk (Articles 49-51).

The set of persons subject to reporting obligations, which has been extended over time, comprises homogeneous categories according to activity and the related obligations. First are banking, financial and insurance intermediaries, including their outside collaborators (Article 11). In addition, the obligations apply to certain professionals (notaries, lawyers, tax accountants, and providers of business and trust services, specified in Article 12), auditors (Article 13), and persons in other occupations specified in Article 14 (credit recovery, custody and transport of cash and securities or valuables, management of casinos, offer of games and betting online or via physical network, and real estate brokerage). Article 10 subjects general government offices and a series of other persons to the suspicious transaction reporting obligation as well.

Legislative Decree 231/2007 reordered the apparatus and strengthened powers of the various authorities involved in combating money laundering and terrorist financing, safeguarding the separation between the policy function and technical agencies. The Decree instituted the Financial Intelligence Unit for Italy and sought to maximize institutional cooperation among Italian authorities and internationally.

The Ministry of Economy and Finance is responsible for policy to prevent money laundering and terrorist financing. As such, it promotes cooperation among the FIU, the sectoral supervisory authorities, professional associations, and the police forces. The Ministry handles relations with international bodies, exercises sanction powers, and is responsible for matters relating to infractions of the limits on the use of cash (Articles 49-51 and 58-60). The Financial Security Committee (CSF), instituted at the Ministry by Decree Law 369/2001, converted into Law 431/2001, is assigned to coordinate the various authorities and ensure the functioning of the entire system (Article 5). The Committee is given special powers in the field of combating terrorist financing and the activities of countries that threaten peace and international security (Legislative Decree 109/2007, Article 3).

A key role, among the technical authorities, is assigned to the Financial Intelligence Unit for Italy, established at the Bank of Italy and acting in complete autonomy and independence (Legislative Decree 231/2007, Article 6). The FIU receives and acquires information on possible cases of money laundering and terrorist financing, mainly through the suspicious transaction reports of the institutions subject to the reporting obligation; it performs financial analysis on the data, using all the sources of information and powers at its disposal; and it assesses their relevance for purposes of transmission to the investigative bodies (the Special Foreign Exchange Unit of the Finance Police  and the Bureau of Antimafia Investigation) and cooperation with the judicial authorities. The FIU is the hub of international information exchange with its counterpart bodies abroad, i.e. the financial intelligence units of other countries. In Italy, the FIU also has regulatory powers with respect to suspicious transactions and powers of control over the persons subject to active cooperation obligations.

The Sectoral supervisory authorities (Bank of Italy, Ivass, Consob) oversee the issue of regulations in their respective areas of jurisdiction on such matters as customer due diligence, data recording, and organization. They also check compliance on the part of the persons supervised and exercise powers of sanction (Articles 55-60). The organizations involved also include professional associations, which promote and their members’ compliance with the money-laundering rules (Articles 8[1] and 53[3]).

The Bureau of Antimafia Investigation and the Special Foreign Exchange Unit of the Finance Police, in their respective areas of competence, investigate the suspicious transaction reports that the FIU, after analysis, transmits to them (Article 8).

Cooperation with the various relevant authorities takes a variety of forms. In derogation to the confidentiality requirements, the supervisory authorities collaborate in anti-money laundering activities with one another and with the FIU, the Special Foreign Exchange Unit and the Bureau of Antimafia Investigation. The supervisory authorities (and other public agencies and professional associations) are require to provide information to the FIU. There are numerous provisions for cooperation between the FIU and the law enforcement apparatus in detecting and investigating anomalous transactions and financial flows. There are specific provisions concerning international cooperation, centered on the FIU’s relations with its foreign counterparts (Article 9).

Legislative Decree 231/2007 institutes a comprehensive set of compliance controls with penal sanctions (Article 55) and administrative sanctions (Articles 56-58).