It deserves closer examination, particularly by institutions operating in the regulated financial sector.
Article 15 distinguishes between a single mandatory aggravating circumstance (commission of the offence within the framework of a criminal organisation, set out in paragraph 1) and a list of optional aggravating circumstances at paragraph 2, which Member States may transpose in accordance with national law. The optional list captures the offender holding high-level public office, a prior conviction for offences of the same nature, the obtaining of a substantial benefit or causing of substantial damage, the exercise of investigative, prosecutorial or adjudicative functions, the exploitation of a vulnerable situation, and, under point (f), a circumstance addressed to the regulated financial sector.
The provision: text and scope
Article 15(2)(f) permits Member States to treat as an aggravating circumstance the fact that the offender is an "obliged entity" within the meaning of Article 2 of Directive (EU) 2015/849, or an employee of such an entity, or a person who has the power, whether individually or as part of an organ of the obliged entity, to represent that entity, to take decisions on its behalf, or to exercise control within it, provided that the offence has been committed in the exercise of that person's professional activities.
The category of obliged entities under Article 2 of Directive (EU) 2015/849 - the Fourth Anti-Money Laundering Directive - captures, within the regulated financial sector, credit institutions, investment firms, fund managers and life insurance undertakings; and extends beyond it to auditors, external accountants and tax advisors, notaries and other independent legal professionals in specified transactions, trust or company service providers, estate agents, providers of certain gambling services, and persons trading in goods for cash payments above the threshold. Non-life insurance falls outside scope. The category is broad, but the regulated financial sector is at its center.
The construction of the provision warrants attention. It does not require that the corruption offence relate to the obliged entity's anti-money-laundering responsibilities. The professional-activities qualifier captures the exercise of the role generally - a relationship manager at a credit institution who solicits or pays a bribe in the course of a corporate transaction; a portfolio manager at an investment firm who facilitates the concealment of corruption proceeds; a senior officer at a fund manager who participates in trading in influence; an executive at a life insurance undertaking who structures a payment to disguise its origin - each falls within the provision's scope.
Implications for internal investigations conducted within regulated financial firms
The aggravator modifies the questions an internal investigation must answer.
The first concerns scope. Where the aggravator may apply, the investigation cannot be confined to the corruption offence. It must extend to the AML-related controls operative at the time, the role of compliance and second-line functions, and the documentation of professional duties as discharged by the relevant individuals. The investigation produces the record on which the institution will, where appropriate, contest the application of the aggravator - or, in the alternative, frame its cooperation and remediation.
The second concerns the individual's position. Where an individual is exposed to the aggravator, the investigation must establish, with care, whether the conduct was committed in the exercise of professional activities or outside them; whether it was directed against the institution's interests or for its benefit; and whether the institution had in place effective controls that the individual circumvented or misused. These distinctions affect both individual and corporate exposure, and they are fact-intensive. They cannot be addressed in the abstract.
The third concerns the documentation of compliance programmes. The mitigating circumstance at Article 16(c) - the implementation of effective internal controls, ethics awareness and compliance programmes - operates in respect of the legal person. The aggravator at Article 15(2)(f) operates in respect of the natural person (but also in respect of the company). An investigation that establishes the effective operation of the compliance programme supports the corporate mitigation argument; an investigation that establishes that the individual acted outside or against the operation of that programme distinguishes the individual's exposure from the institution's. Both rest on the same evidentiary discoveries during the investigation.
Closing observation
The aggravator at Article 15(2)(f) is directed at the regulated financial sector. Its application is not automatic. It is among the optional aggravators that Member States may transpose, and its operation in any given case depends on judicial discretion.
Romania is among the Member States that will determine, in transposition, whether and how to incorporate the provision into national law. That determination is, however, of limited consequence for Romanian AML-obliged entities operating across the EU: in any Member State that transposes the aggravator, those entities will encounter it through their local operations, regardless of the position adopted in Bucharest.
The practical question, for credit institutions, investment firms, fund managers and life insurance undertakings with EU-wide footprint, is therefore not whether Romania implements Article 15(2)(f). It is how compliance programmes are designed and how internal investigations are conducted to account for an aggravator that will be in force across part, but not all, of the firm's operating perimeter.
This article is part of the EU Anti-Corruption Directive Romania Corporate Exposure Hub.