Fourth Anti-Money-Laundering Directive: Reporting of Suspicious Transactions to the Financial Intelligence Unit and Prohibition of Disclosure (Articles 33 and 39)

Article 2(1) of Directive (EU) 2015/849 applies the Directive to obliged entities, which include credit institutions, financial institutions and the natural or legal persons acting in the exercise of their professional activities that the paragraph lists.

Article 33(1), point (a), requires obliged entities, and where applicable their directors and employees, to cooperate fully by promptly informing the financial intelligence unit, including by filing a report, on their own initiative, where the obliged entity knows, suspects or has reasonable grounds to suspect that funds, regardless of the amount involved, are the proceeds of criminal activity or are related to terrorist financing, and by promptly responding to requests by the unit for additional information in such cases.

Article 33(1), point (b), as replaced by Directive (EU) 2018/843, requires obliged entities to cooperate fully by promptly providing the financial intelligence unit directly, at its request, with all necessary information. Article 33(1) provides that all suspicious transactions, including attempted transactions, shall be reported.

Article 33(2) requires the person appointed in accordance with Article 8(4), point (a), to transmit the information to the unit of the Member State in whose territory the obliged entity transmitting the information is established.

Article 34(2) disapplies the obligations of Article 33(1) to notaries, other independent legal professionals, auditors, external accountants and tax advisors only to the strict extent that the exemption relates to information they receive from, or obtain on, one of their clients in the course of ascertaining the legal position of the client, or performing their task of defending or representing that client in, or concerning, judicial proceedings.

Article 39(1) provides that obliged entities and their directors and employees shall not disclose to the customer concerned or to other third persons the fact that information is being, will be or has been transmitted in accordance with Article 33 or 34 or that a money laundering or terrorist financing analysis is being, or may be, carried out.

Article 39(2) provides that the prohibition does not include disclosure to the competent authorities, including the self-regulatory bodies, or disclosure for law enforcement purposes.

Article 39(3), as replaced by Directive (EU) 2018/843, provides that the prohibition does not prevent disclosure between credit institutions and financial institutions from the Member States provided that they belong to the same group, or between those entities and their branches and majority owned subsidiaries established in third countries, provided that those branches and subsidiaries fully comply with the group-wide policies and procedures and that those policies and procedures comply with the requirements of the Directive.

Article 39(4) to (6) provide further exceptions for disclosure within the same legal person or larger structure of notaries, other independent legal professionals, auditors, external accountants and tax advisors, for disclosure between obliged entities in cases relating to the same customer and the same transaction, and for an attempt by those professionals to dissuade a client from engaging in illegal activity.

Article 67(1) of the Directive, as replaced by Directive (EU) 2018/843, requires Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 26 June 2017. Article 77 of Directive (EU) 2024/1640 repeals Directive (EU) 2015/849 with effect from 10 July 2027.

Annex VI to Regulation (EU) 2024/1624 correlates Article 33(1) of Directive (EU) 2015/849 with Article 69(1) of that Regulation, Article 33(2) with Article 69(6), and Article 39 with Article 73. Article 58(1) requires Member States to ensure that obliged entities can be held liable for breaches of the national provisions transposing the Directive, with any resulting sanction or measure effective, proportionate and dissuasive.

Article 59(1) requires the sanctions and measures of that Article to apply at least to breaches on the part of obliged entities that are serious, repeated, systematic, or a combination thereof, of the requirements laid down in Articles 33, 34 and 35 on suspicious transaction reporting, among others.

Article 59(2), point (e), and Article 59(3) require the maximum administrative pecuniary sanctions to be at least twice the amount of the benefit derived from the breach or at least EUR 1,000,000, and for a credit institution or financial institution at least EUR 5,000,000 or 10% of the total annual turnover in the case of a legal person and at least EUR 5,000,000 in the case of a natural person.