Data protection, anti-money laundering and tax evasion: Seeking an equilibrium between public policy and fundamental rights

This paper explores the interaction between data protection rules and important (even urgent) public policies addressing the issues raised by the financial crisis. In particular, the proposed amendments to the Anti-Money Laundering (AML) Directive are referred to, which are designed to answer concerns that money laundering and terrorism financing may rely on innovative means and have thus become more dynamic and unpredictable. The amendments also rest on the awareness that tax evasion and elusion threaten economic development and the recovery of the economy from the financial crisis. There is little doubt that such economic circumstances require urgent legislative intervention. A more incisive legislation, however, imposes a burden on individuals and on their fundamental rights to privacy and data protection. Like many other mechanisms, innovative policy tools rely on the availability and intensive processing of information, which includes personal data. Can these conflicting interests (ie, the achievement of public policy goals and the protection of the individual) be reconciled or shall either of the two be subordinated to the other? A combination of the two is, in the author’s opinion, possible. From this perspective, purpose limitation and proportionality in the processing of the relevant personal data shall be the guiding principles in this balancing exercise. Such principles have been implemented with some imperfection in the proposed amendments to the AML Directive. Nonetheless, as the legislative process is ongoing and the debate on the topic is still open, there is time to improve and achieve a correct implementation of data protection rules.