On 4 December 2024, with Sentence no. 4419/2024, the Ordinary Court of Venice – Business Section expressed its opinion on the matter of anti-money laundering, in particular with regard to the liability of financial intermediaries.
The specific case concerns a Bank Sued by a Company Under Insolvency Procedure for Failure to Report Suspicious Withdrawals to the Competent Authorities carried out by the directors of the same Company, later declared insolvent: the dispute concerned large withdrawals of cash from the company's current accounts without – according to the procedural bodies – adequate documentary justification.
The Bank rejected all charges, highlighting that the client Company's accounts were managed in compliance with the regulations and that the disputed transactions were justified by the operational needs of the Company, which later went bankrupt.
Let us recall the obligations imposed on banks by anti-money laundering legislation:
- Obligation to assess the risk and continuously monitor financial transactions (art. 15 and art. 17 of the Legislative Decree 231/2007).
- Obligation to immediately report suspicious transactions involving money laundering or terrorist financing (Article 35 of the Legislative Decree 231/2007).
- Obligation to retain documentation relating to operations for a minimum period of ten years.
The Court clarified some key points:
- Reporting requirement, not prohibition: Banks are required to report suspicious transactions to the Financial Information Unit (UIF), but are not required to prohibit cash withdrawals, even if they are large amounts.
- Risk assessment: the reporting obligation is triggered when the bank has “reasonable grounds to suspect” that a transaction may be linked to money laundering or terrorist financing. The risk assessment is based on several factors, such as the type of customer, the geographic area and the services offered.
- Role of the UIF: It is the UIF that carries out financial investigations on the reports received and, if necessary, forwards them to the Guardia di Finanza and the Anti-Mafia Investigation Directorate for investigations.
- Sanctions: Failure to report suspicious transactions entails administrative sanctions, unless the act constitutes a crime.
In this specific case, the Court therefore held that the Bank – represented and defended, among others, by the lawyer Claudio Bonora, Partner of our firm – had no obligation to report the withdrawals made by the directors of the client company, as there were no concrete elements to suspect illicit activities. Furthermore, even if the report had been made, this would not necessarily have prevented the bankruptcy of the Company, attributable mainly to the conduct of the directors themselves.
The sentence therefore highlights a crucial aspect: the Anti-money laundering legislation does not aim to impose on banks absolute control over their customers' financial flows, but to create a reporting system that allows the competent authorities to intervene in the event of well-founded suspicions. The responsibility for the bankruptcy of a company, in the absence of evidence of collusion or gross negligence on the part of the bank, remains exclusively with the directors.
Reporting is an obligation for financial intermediaries, the omission of which must be assessed and, if necessary, sanctioned within the scope of the regulatory provisions, but does not create compensation rights for the customer and/or third parties.
And this is in light of the public purpose of the provisions established by the anti-money laundering regulations.
With the judgment under comment, Italian jurisprudence aligns itself with the jurisprudence of the main European countries (see the recent ruling of 21 September 2022 issued by the French Court of Cassation and the decisions of the Brussels Court issued in March and November 2022), jurisprudence that the Bank's defense has usefully produced in court.
Content by the Lawyer. Claudio Bonora and of the lawyer. Marco Mancinelli.
