In the fight against money laundering, the legislature has sought to stretch the scope of criminal prosecution to its limit.
Articles 301 to 304 of the Spanish Criminal Code (SCC) punish money laundering with up to six-year prison sentences and fines for three times the assets’ value.
Therefore, not only is the actual action of «money laundering» punishable, which consists in introducing into the licit market goods or money derived from criminal actions in a conscious and voluntary manner. The scope of the offense has been extended beyond criminal actions to those involving seriously reckless behavior.
Also punishable as «laundering» is the act of intentional concealment, as well as previous stages of execution which are usually not considered as criminal offenses—except for criminal types in which the legislature has moved the limits of criminal protection to include the criminalization of the so-called «preparatory acts», as is the case with drug trafficking. In this regard, provocative, propositive or conspiratorial conducts are punishable even if the «money laundering» action does not get to take place (article 304 of the SCC).
In accordance with the provisions of article 303 of the SCC it is stated, in relation to certain liberal professions, public officials or persons engaged in financial activities, that:
«If the facts… are done by business persons, financial sector intermediaries, health professionals, public officials, social workers, teachers or educators in the exercise of their position, profession or business, punishments of three to ten-year special disqualification for public office, profession or business are to be imposed in addition to the corresponding punishment… [and] punishments of ten to twenty-year total disqualification when the aforementioned facts are done by an authority or its agents (…).
Physicians, psychologists, people in possession of sanitary titles, veterinarians, pharmacists and their dependents are considered to be health professionals.»
The approval of Royal Decree Law 11/2018, which transposes Directive 2015/849 of the European Union to prevent money laundering, considerably extends the list of obligations and legal risks for professionals obliged to comply with anti-money laundering regulations.
The normative has led to multiple criticisms for the overload of legal obligations that it generates for liberal professionals and self-employed workers. In particular, if it is compared with the degree of compliance that the State assumes.
To the pre-existing obligations, new ones are incorporated under threat of severe sanctions including, among others, the requirement to have a deep knowledge of the clients and their activities and to denounce any activity suspicious of money laundering, as well as to train the staff in relation to these obligations and to keep probatory documentation. And, since the latest reform, they must also implement an internal communication channel so that employees can anonymously report any breach of the law. They are also obliged to register in the Commercial Registry.
In compliance with the regulations in force, professionals and other obliged parties have the obligation to identify the real owners of the companies. This obligation is certainly paradoxical if we consider that, for companies located in tax havens, the identification of the real owners would require an arduous investigative work which is, in practice, impossible to assume for an individual or a small group of professionals without specific means or training. Such police-like investigative work of their own clients is certainly not among the fields of work nor the tasks for which professionals are paid.
This contradictory fact was exposed on 30 November 2018 in the Spanish press by Mr. José María Peláez Martos, Inspector of the Spanish Tax Office.[i]
Despite the inevitable need for the collaboration of professionals and the business world in the fight against money laundering, from the analysis of new regulations and trends in EU legislatures we see that the weight of obligations and the enlargement of responsibilities contribute to make the professional world increasingly dense. This results in work and business relations overburdened with obligations, based on mutual distrust and, therefore, less humane.
A compliance program, including the figure of a compliance officer—internal or external, according to the characteristics and needs of the organization—is hence perceived as a most valuable resource for a company, as it provides it with legal security, risk control and training possibilities, making it more competitive and contributing to protect its reputation.
Andrea Accuosto
Lawyer
[i] https://cincodias.elpais.com/cincodias/2018/11/29/mercados/1543504479_639411.html
