3. Overarching Legal Issues
Besides the differences among the national implementations of tax crime as predicate offence to ML
which have been analysed above in chapter 2.2, there are overarching legal issues that concern either
all countries or multiple fields of law, e.g. criminal law, financial market law, or private law. These
issues will be addressed in chapter 3.
3.1 The democratic and constitutional legitimation of the FATF
The first issue that is rarely discussed in academic circles and amongst practitioners is the obvious lack
of democratic and constitutional legitimation of the FATF. The participants of the FATF plenaries
where the 40 recommendations are discussed and accepted are career civil servants, not even ap-
pointed Ministers, not to speak of elected officials. In addition to that, the majority of the UN member
states are not represented at the FATF plenaries. The fact that most FATF-style regional bodies
(FSRBs, e.g. Moneyval in Europe, MENAFATF in the Middle East and northern Africa, APG in the
asian pacific region, etc.; see footnote 17 or the list on the FATF website) are participating at the
FATF plenaries is no valid remedy to this second weakness in terms of democratic legitimation of the
FATF.
It is quite interesting to see fully fledged democratic nations abide to international standards that are
set without democratic or constitutional legitimation. It is even more interesting to see that no human
rights NGO has addressed the issue that a group of civil servants forces elected parliaments to imple-
ment their recommendations into national law. This is a blatant case of putting pressure on national
parliaments by threatening them to harm their nations’ reputations by virtue of black lists. This situa-
tion can be qualified as one of “comply or die”. The members of national parliaments seem to have no
choice but to implement the FATF recommendation. One could argue that this violates the constitu-
tional principle of independence that every elected representative ought to enjoy in Parliament.?
It is difficult to understand that the international community has not solved the lack of democratic
legitimation of the FATF by accepting the 40 recommendations in the form of a multilateral treaty, e.g.
an UN convention. Only then the constitutional rights, e.g. the principle of independence that every
This principle was first explained in Edmund Burke's declaration of independence that an elected representa-
tive ought to enjoy in Parliament. Burke, Edmund. Miscellaneous Writings. E. J. Payne, ed. Indianapolis, in:
Liberty Fund, Inc., 1990. Library of Economics and Liberty [Online] available from
http://www.econlib.org/library/LEBooks/Burke/brkSW v4c1 html, accessed on April 3, 2016.
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