The referring court was the Court of Appeal, Brașov, Romania.
In the referring court’s view, the same person cannot be guilty both of the money-laundering offence, in one or other of its forms, and also of the predicate offence. The referring court notes that such an interpretation would derive not only from the preamble, but also from a grammatical, semantic and teleological analysis of Article 1(3) of Directive 2015/849 (Forth Anti Money laundering Directive). In addition, according to the referring court, to consider that the active subject of the predicate offence could also be the active subject of the money laundering offence would be to disregard the ne bis in idem principle.
The question asked by the referring court concerns whether the perpetrator of a predicate offence from which the laundered money originates may also be the perpetrator of the offence of money laundering as that conduct is defined in Article 1(3)(a) of Directive 2015/849.
The Advocate-General rephrases the question as that the referring court asks, in substance, whether the person who commits an act constituting money laundering, as defined by Article 1(2)(a) Directive 2005/60 (Third Anti Money Laundering Directive), may be the perpetrator of the offence from which the laundered money derives.
Opinion AG Hogan of 14 January 2021: article 1(2)(a) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, must be interpreted as not precluding national legislation which provides that the person who commits the act which constitutes the offence of money laundering may be the same person as the person who commits the predicate offence.
Vide the opinion: