The FATF is an ad hoc body, established by the G7 in 1989 under the auspices of the OECD. Its membership is selective, including OECD states at first and expanding since then to include ‘strategically important’ countries and largely to reflect financial globalization. When looking at FATF membership today, it is striking that all 15 ‘old’ EU Member States, along with the Commission, are now full FATF members. However, none of the 12 Member States which joined the EU in 2004 and 2007 is a FATF member (they are all members of MONEYVAL – the Committee of Experts on the Evaluation of Anti-Money Laundering Measures, established in 1997 under the auspices of the Council of Europe).
The rapid evolution and expansion in the FATF mandate, standards and membership can be attributed to its informal nature and network structure which aims at flexibility and adaptability. Although the FATF output takes the form of Recommendations which could be characterized as ‘soft law’, their influence on the development of EU anti-money laundering law has been considerable. All EU anti-money laundering directives have been justified as necessary to implement FATF Recommendations in the European Union legal order.
Ensuring compliance with the FATF Recommendations has also been the driver for the negotiation and adoption of the fourth AML Directive: The Commission’s Explanatory Note to its proposal for the fourth AML Directive argues that ‘a revision of the Directive at this time is complementary to the revised FATF Recommendations, which in themselves represent a substantial strengthening of the anti-money laundering and combating terrorist financing framework’.
The influence of FATF standards on the development of EU anti-money laundering law raises a number of rule of law concerns. FATF standards have been developed by a single-agenda ad hoc body with selective membership and a minimum level of transparency and accountability in its operations.22 Th e operation of the FATF in these terms serves to depoliticize the discussion on the need for new anti-money laundering measures which increasingly strengthen the arm of the state and to produce an expert orthodoxy in terms of both money laundering typologies and the necessary measures to counter the phenomenon. The need for the extension and renewal of both the FATF and its Recommendations has been constantly been accepted as a given, and each production or revision of the FATF Recommendations has been mostly adopted without criticism by the European Commission in its proposals for Union law in the field and subsequently by Member States in the Council and by the European Parliament as co-legislators. In this manner, a specific agenda developed by technocrats and with limited scrutiny at the global level has been legitimized, via the EU decision-making process, and adopted at the Union level to bind both FATF and non-FATF members.
Valsamis Mitsilegas, Niovi Vavoula
(The Evolving EU Anti-Money Laundering Regime: Challenges for Fundamental Rights and the Rule of Law, Maastricht Journal of European and Comparative Law, 2016, pp. 263-267)