L’attuazione in Italia della Quarta Direttiva Antiriciclaggio. Uno sguardo d’insieme e prospettive future. Brevi riflessioni su obblighi (e ruolo) dei professionisti nella normativa di prevenzione del riciclaggio

The Authors provides an outlook on the implementation in Italy of EU Directive 849/2015 on the prevention of the use of the financial system for purposes of money laundering and terrorist financing (the « Fourth AML Directive »), through Legislative Decree no. 90/2017, entered into force on July 4, 2017, which has significantly amended Legislative Decree no. 231/2007 (the « Decree »), i.e. Italy’s main source of primary legislation in this field.After a brief introduction to the Fourth AML Directive (and the recently enacted Fifth Directive), including its role within the international sources (namely the FATF Recommendations), the Authors analyses the main changes introduced in the Decree, focusing on aspects more relevant for professionals, and in particular for accountants, highlighting the evolving and not yet completed, regulatory and second level measures framework.As a matter of fact, although professionals’ AML obligations (CDD- customer due diligence, record keeping, reporting of suspicious transactions as well as other communication duties, training) are confirmed in the renewed Decree, undoubtedly there are some important novelties, such as the increased, multi-level (supranational, national, regulatory, individual) focus on the RBA (risk based approach), which appears as the cornerstone of the whole system; the increased role of self-regulatory bodies; the abrogation of the (autonomous) registration obligation; within the scope of CDD duties, the elimination of any exemption, as well as the issue of transparency and publicity of beneficial ownership of legal entities; the provision of specific and extended duties in terms of organisational and internal control measures. As far as the AML penalty system is concerned, the Authors point out how much the reform of was necessary and desirable, since the previous regulatory framework was ineffective, confused ad was difficultly to interpret also for the legal professionals because of a large abuse to the cross-reference technique. The law-maker, acknowledging the criticism coming from the doctrine, radically amended the old legal framework by drastically reducing the exasperated recourse to cross-references and  by selecting a systematization, inspired to the criterion of legislative clarity and to the principles of proportionality and subsidiarity.For this reason criminal rules have been restricted only to the conducts of serious violation of the customer due diligence obligation and of the conservation of documents obligation committed by fraud or forgery, and to the violation of the prohibition to communicate the customer the warning sent to the Authority; mere omissions, also with reference to the omission of the due reports, are now punished by administrative sanctions only.Following a detailed overview of the main changes to the Decree, from the professionals’ perspective, the Authors proposes some final remarks, concerning the duties and role of professionals in the fight against money laundering and terrorist financing, pointing out some critical issues such as the contradiction between the professional’s fiduciary relationship with the client, as well as confidentiality, legal and deontological duties, on the one side; and the obligation to report suspicious transactions, on the other; the burdersome, disproportionate duties and costs imposed by full, aware compliance with the AML duties, in particular for small firms; and the absence of a level playing field within the EU (not to mention internationally). Indeed, the Authors also underlines positive aspects of the AML experience, namely the spreading of a new culture of law and compliance; the development by professionals of an improved, more critical and informed approach to their clients, useful to better understand their needs and to increase the standard of professional activities, in addition to preserve professionals’ integrity and reputation, an invaluable asset.