La Función Preventiva del Sistema Financiero en el Espacio Judicial Europeo: ¿Medidas (Penales) de Prima Ratio?

Abstract

The protection of the European Union’s financial system against organised crime has led the legislator to create a body of legislation that advocates prevention through a set of measures to be applied by financial institutions and professionals linked to this sector in order to avoid the illicit use of financial channels. The boundary between the preventive purpose of these control measures and the criminal consequences arising from the actual commission of the offence is sometimes extraordinarily blurred. This circumstance makes it possible to speak, to a certain extent, of an advance of the criminal barrier.

In this paper, we will analyse the different aspects of the risk control regime in the European judicial area, taking into account the legal instruments in force. We will also highlight the main obstacles to the global protection of financial channels, including – but not limited to – the shortcomings in the exchange of information between the authorities involved, the difficulties in accessing data on financial transactions and the lack of regulation in the cryptocurrency sector, which has become a safe haven for fundraising by organised crime and terrorism. Finally, we should not forget the necessary reference to the future design of the anti-money laundering structure that the Union is building, centred on two main focuses: the first, localised at national level, being the preventive function exercised by financial institutions by blocking and monitoring suspicious transactions; the second, centralised, which provides for the future creation of a common central anti-money laundering authority.