Fines against money laundering commissioners of a bank confirmed


The OLG Frankfurt has decided that the setting of fines against a money laundering commissioner of a major international bank for failure to report suspected money laundering was lawful.

The Federal Financial Supervisory Authority (BaFin) had imposed three fines of between EUR 2,500 and EUR 6,000 on the person concerned as the money laundering officer of a major international bank for breach of the duty to report immediately under the Money Laundering Act. In response to their objection, the AG Frankfurt had sentenced the person concerned to fines of between EUR 900 and EUR 2,000 in three cases for recklessly failing to comply in time with the notification of a suspected duty. According to the court's findings, the person concerned was the money laundering officer of his employment bank during the period of the offence and was responsible, in particular, for making reports of suspected money laundering (Section 11 (1) GWG). The widow of a former Federal Chancellor had paid a total of 500,000 euros in cash into accounts at this bank after visiting her safe deposit box in 2013. The funds were to be transferred to other credit institutions for further investment. These actions should have been reported immediately as suspicious money laundering reports. In fact, the reports were only made several months after the payment had been made and only because other credit institutions involved in these transactions had fulfilled their reporting obligations and informed the persons concerned.

In her appeal to the Higher Regional Court, the person concerned had defended herself by saying that she would first have had to conduct her own investigations in order to ensure that no suspicious transactions were reported "in the dark". Otherwise, the grievances identified in the bank concerned the responsibility of the Board of Managing Directors.

The Frankfurt Higher Regional Court did not follow this legal opinion and confirmed the fines imposed on the person concerned.

In the opinion of the Higher Regional Court, the legislator has clearly and unambiguously expressed in the Money Laundering Act that the purpose of the suspicion report is to be able to prevent suspicious acts of money laundering as far as possible before they are carried out. The fact that the explicit wording was also meant in this way was again made clear by the legislator in the partial new version of the ARC in May 2011 with regard to the criticism of the EU regarding the missing or inadequately pronounced problem awareness of the obligated parties in Germany. In particular, he had emphasised that the "approach propagated in specialist literature and at seminars and training courses on the implementation of the Money Laundering Act is that a report only has to be made if an initial suspicion of criminal relevance exists and is incorrect". The report of suspicion is not equated with a criminal complaint. In Germany, investigations are to be carried out exclusively by the investigating authorities appointed for this purpose; the money laundering officer of a financial institution is not one of them. Rather, the task of the money laundering commissioner was limited to communicating "internal information" on the notifiable transaction.

The bank's management board may be liable alongside, but not instead of, the money laundering officers. In view of the numerous instances of maladministration identified at the Bank, it is to be assumed that the conduct was not "frivolous" but "intentional". The fines imposed here were below the legal minimum, but could not be increased due to the prohibition of deterioration.

Previous instance

AG Frankfurt, jurisdiction v. July 10, 2017 - 941 OWi - 7332 Js 214494/17

Source: Press release of the OLG Frankfurt No. 47/2018 v. 25.10.2018