Europeizace skutkové podstaty praní peněz

This contribution examines the way, how European law (i.e., community law and union law) exerts influence on criminal laws of the member states of the European Union as regards the establishing of the elements of criminal offence of money laundering, both from the point of view of substance (definition of the elements of criminal offence of money laundering) and form (form of legal act of European law). The phenomenon examined here is understood as dynamic one. The first part explains the terms used in heading and thereby uncovers the approach to the subject-matter. The second part presents the sources of inspiration for European action to criminalize money laundering. The third part analyses individually the substance and form of the legal acts of European law, which regulate the elements of criminal offence of money laundering, and the consequences of the decision of the European Court of Justice in the matter C-176/03 Commission of the European Communities v. Council of the European Union. The final part provides the summarizing contemplations, in particular the following ones. The European action to criminalize money laundering is based on earlier international efforts in this field and is realized through the legal acts of the first and third pillars. In the first pillar, the comprehensive approach was taken and new definition of money laundering (albeit derived from the Vienna Convention of 1988 and inspired by the Strasbourg Convention of 1990 and the Financial Action Task Force recommendations) was drawn up and its scope gradually extended. However, the effectiveness of this definition was weakened by the reluctance on the part of the member states to admit that the Community could have competence in criminal law. The decision of the European Court of Justice in the matter C-176/03 considerably changed the situation, as it clarified that the Community, although it does not have general competence in criminal law, can, within its competences, impose on member states an obligation to criminalize certain acts in order to ensure the effectiveness of the community law. This decision has therefore paved the way for effective enforcement of the duty to criminalize money laundering (under the “European” definition) in the framework of the community law. In the third pillar, two partial approaches could be identified. The first one can be named sectional approach (obligation to criminalize money laundering is imposed only with regard to very limited number of crimes producing proceeds) and the second one accessoric approach (legal act of third pillar imposes obligation not to make or uphold certain reservations limiting the scope of definition of money laundering from the Strasbourg Convention of 1990).