Justification of supranational criminal law – Analysis of collective securitization in the EU-level harmonization of money laundering provisions
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | 10.1177/1023263X19879048 |
| Author | Saila Heinikoski,Tatu Hyttinen |
| Subject Matter | Articles |
Article
Justification of supranational
criminal law – Analysis
of collective securitization
in the EU-level harmonization
of money laundering provisions
Tatu Hyttinen* and Saila Heinikoski**
Abstract
Tackling terrorism was the prime justification in the European Commission’s proposal for the
recently adopted anti-money laundering Directive 2018/1673, the first directive on money laun-
dering focused on criminal law rather than administrative measures. We utilize the theory of
collective securitization to illustrate how the EU seeks to connect the criminalization of money
laundering to the fight against terrorism, requiring, for example, the extension of the crim-
inalization of self-laundering. As an example of how the securitizing rhetoric has not convinced the
Member States, we discuss the case of Finland, which is willing to extend its criminalization of self-
laundering, even though the legal economy rather than protection from terrorism is considered to
constitute the object of legal protection . We demonstrate that the use of terrorism-f ocused
securitization is problematic especially in the context of criminal law, because it challenges the
traditional understanding of the objects of legal protection as the basis of criminalization.
Keywords
European Union, criminal law, money laundering, self-laundering, securitization, European
integration
* Senior Lecturer in Criminal Law, University of Eastern Finland
** Postdoctoral Researcher, University of Helsinki
Corresponding author:
Saila Heinikoski, Centre of Excellence in Law, Identity and the European Narratives, University of Helsinki, Finland.
E-mail: saila.ss.heinikoski@helsinki.fi
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(6) 815–832
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19879048
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1. Introduction
This article contributes to the vivid discussion on European integration in criminal law,
1
a field that
used to be excluded from the ‘normal’ supranational processes of European integration (that is, the
former first pillar) before the Lisbon Treaty’s entry into force. The focus in this article is on the
legislative process of the first EU Directive on combating money laundering by criminal law
(2018/1673),
2
which entered into force on 2 December 2018 and which the Member States need
to transpose into national legislation by 2 December 2020. We analyse the procedure from the
perspective of collective securitization, demonstrating how the criminalization of money launder-
ing is presented as one manner to prevent terrorism and what the potential implications of such
securitization are.
3
An illustrative example of the extent of the securitization process related to the
Directive is that the precedent instrument that the Directive replaces, the Council Framework
Decision of 26 June 2001, did not mention terrorism at all, instead focusing only on obligating
the Member States to implement the 1990 Council of Europe Convention on money laundering.
The new Directive also refers to international standards determined by, for example, the Financial
Action Task Force (FATF), but the main justification is derived from terrorism, as we are about to
outline.
As we illustrate in this article, money laundering has been linked to terrorist financing since
9/11, but EU measures so far have focused on administrative and preventive tools to combat money
laundering, where this conflation seems more justifiable: the same measures that help trace the
laundering of dirty money may also help tracing funds that are used fo r terrorist financing.
However, a similar legitimation does not function with criminal law measures, as the preventive
force of the criminalization of money laundering appears unlikely to deter terrorists from executing
terrorist attacks. Nevertheless, we do acknowledge that the criminalization of money laundering
may enable confiscation: an offence must have been taken place in order for the authorities to
confiscate the money of potential terrorists. In terms of punishment, the recent money laundering
Directive only enables punishing terrorist organizations if they receive their funds from criminality
and the funds flow through EU countries at some point. However, if the money comes from lawful
sources and/or does not cross the EU, EU countries are not able to confiscate the money or impose
sentences. Another potentially problematic aspect of the Directive is that fundamental principles of
national criminal law systems may be compromised as a result of the confusion in the objects of
legal protection, as exemplified by the criminalization of so-called ‘self-laundering’, where the
perpetrator of the predicate offence launders the dirty money themselves. In contrast to the
traditional third-party money laundering, self-laundering has been criminalized in most EU coun-
tries only in the 21st century.
4
The questions we seek to answer in this article are (1) to what extent the collective securitization
of money laundering has been utilized to justify the introduction of criminal law in this field, and
1. E.g. V. Mitsilegas, ‘European Criminal Law and the Dangerous Citizen’, 25 Maastricht Journal of European and
Comparative Law (2018), p. 733-751; I. Wieczorek, ‘Punishment, Deprivation of Liberty and the Europeanization of
Criminal Justice’, 25 Maastricht Journal of European and Comparative Law (2019), p. 651-654.
2. Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money
laundering by criminal law, [2018] OJ L 284/22.
3. J. Sperling and W. Webber, ‘The European Union: Security Governance and Collective Securitisation’, 42 West
European Politics (2019), p. 228.
4. T. Hyttinen, ‘A European Money Laundering Curiosity: Self-Laundering in Finland’, 8 European Criminal Law Review
(2018), p. 268–293.
816 Maastricht Journal of European and Comparative Law 26(6)
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