Within the European Union (EU), the administrative and criminal law frameworks in Member States stem from EU Directives, which in turn transpose and closely follow complementary activities carried out in international fora, in particular those of the Financial Action Task Force (FATF), the United Nations, and the Council of Europe, as well as banking organisations. This chapter argues that it is high time to evaluate the legal implications of the regulatory frameworks. Arguably, the most pressing legal question is not so much whether the EU has the power to regulate within this field, even when it comes to criminal law, nor whether it should, or whether such regulation is effective for its stated purposes, but rather what added value an EU criminal law directive based on Article 83(1) TFEU might have, as well as what might still be missing.
Since the choice of legal basis must be guided by objective factors which are amenable to judicial review, including, in particular, the aim and content of the measure, this suggests that specific proposals for criminal AML legislation were not predominant in the now strengthened European AML framework. With a strict legal basis analysis as a starting point, this chapter analyses the current EU AML framework both from an historical and contextual point of view, thereby aiming to provide a nuanced picture of the current EU AML framework and its particulars. The result includes not only an overview of the current regulatory framework, but also highlights certain specifics such as the involvement of private actors and related potential problems from a procedural and fundamental rights point of view. Possibly, criminal EU AML legislation based on Article 83(1) TFEU might follow to complement the current legislative framework.