Ruling [DE] ¦ Money laundering: fulfillment of the qualifying criteria only by obliged parties; order for confiscation permissible under new law

Money Laundering after the 2021 Reform: BGH clarifies who qualifies under § 261(4) StGB and how to apply confiscation across old and new law

Background and case overview

In its judgment of 8 August 2022 (5 StR 372/21), the Federal Court of Justice (BGH) addressed two key issues in German money laundering law following the 2021 reform: who can fulfill the aggravated offense under § 261(4) StGB (new version), and how courts must handle confiscation when the substantive criminal provision has changed between the time of the offense and the judgment. The case involved a defendant convicted at first instance of several counts of commercial receiving (Hehlerei), fraud, and two counts of money laundering linked to self-laundering transactions intended to conceal proceeds from prior illicit sales of stolen car parts. The Landgericht had also ordered multiple confiscations, including extended confiscation.

Qualification under § 261(4) StGB n.F. is limited to true AML “obliged entities”

The BGH’s first core holding is that the aggravated form in § 261(4) StGB n.F. applies only when the offender acts “as an obliged entity” within the meaning of § 2 GwG and does so in the exercise of the very business or profession that makes them an obliged entity. This aligns with Directive (EU) 2018/1673, which targets conduct by obliged entities within their regulated role. The Court stressed that the aggravated provision does not capture acts committed outside the scope of the obliged activity. In the case at hand, the defendant’s self-laundering moves — purchasing and selling cars with illicit proceeds to conceal origin — were carried out for private purposes, not within any GwG-relevant professional activity. As a result, only the basic offense in § 261(1) StGB n.F. was applicable.

This clarification is practically significant. It prevents automatic escalation to the aggravated penalty where an individual merely happens to be a professional in a sector listed in § 2 GwG but commits laundering outside that professional context. The Court explicitly left open whether purely illegal operators could ever be “Güterhändler” under § 2(1) No. 16 GwG; it did not need to decide the point because the conduct here was private, not within any business activity that could trigger the qualification.

Applying the mildest law: the 2021 reform lowers the base penalty for § 261(1) StGB

The second major point concerns the “mildest law” principle under § 2(3) StGB. The 2021 reform broadened predicate offenses but lowered the minimum penalty for the basic money laundering offense to allow for fines or imprisonment up to five years, eliminating the previous three-month minimum custodial threshold. Because the new law is milder in terms of the main penalty, it had to be applied to the defendant’s money laundering counts, even though the acts predated the reform. The Landgericht had mistakenly sentenced within the old higher minimum framework; the BGH set aside the individual sentences for the two money laundering counts and the overall aggregate sentence.

Bastian Schwind-Wagner_Follow "The BGH has narrowed the aggravated money laundering offense to true obliged-entity conduct performed in that capacity and confirmed that once the post-2021 § 261 is the milder law, its confiscation regime must be applied in full. Extended confiscation remains available but demands precise, time-specific proof that assets were present during an anchoring offense."

No “mixing and matching” old and new rules, including for confiscation

Critically, the BGH reaffirmed the long-standing principle of strict alternativity: courts must apply either the old or the new law as a whole, not combine favorable bits from each. Once the 2021 § 261(1) StGB is selected as the milder law based on the main penalty, the consequences for confiscation must follow the new regime of §§ 73 ff. StGB, as referenced in § 261(10) StGB n.F., even if the earlier law might have treated confiscation differently or more leniently. The Court confirmed that a confiscation permissible under the new law can be ordered even if it would not have been permissible under the old law. § 2(5) StGB does not authorize splitting regimes for confiscation; it merely aligns temporal application rules for confiscation with those for penalties.

In this case, while the trial court had grounded parts of its confiscation on § 74 StGB a.F. in conjunction with § 261 a.F., the BGH explained that under the new law the vehicle acquired through self-laundering constitutes “the obtained” under § 73(1) StGB via § 261(10) sentence 3 StGB n.F. Where the object obtained is no longer available, the value must be confiscated under § 73c StGB. The BGH therefore upheld, as corrected in legal basis and clarified in tenor, the confiscation of the BMW (as obtained) and the value confiscation for the Mercedes (at least EUR 15,000).

Extended confiscation demands proof of temporal availability and specificity

The BGH also scrutinized extended confiscation under § 73a StGB. For the amount of EUR 92,800 in cash found in safety deposit boxes, the Court clarified that the tenor should reflect extended value confiscation and upheld it, noting the trial court’s reasoning under § 73a(1), § 73c StGB was sound despite a drafting slip. By contrast, the separate extended value confiscation of EUR 22,936.16 failed because the trial court did not establish that these assets were concretely present in the defendant’s estate at the time of an anchoring offense. The Court emphasized that extended confiscation requires temporal and factual specificity: when and in what amounts were the assets obtained, and were they present at the time of an offense to which extended confiscation can attach? Moreover, if specific proceeds can be tied to identified earlier offenses, ordinary confiscation under § 73 StGB takes precedence over extended confiscation.

Operational takeaways for financial crime practitioners

For compliance officers and defense counsel, the decision sets clear boundaries.

First, aggravated laundering liability under § 261(4) StGB n.F. turns on whether the act occurred within the obliged entity’s professional activity — not merely on the person’s status.

Second, when reforms change penalties, courts must select the truly milder overall law based on main penalties and then apply its entire framework, including confiscation references.

Third, confiscation analysis must distinguish between “obtained” objects and “money laundering objects,” and between ordinary and extended confiscation.

Finally, extended confiscation must be supported by precise findings on the existence and timing of assets; broad net-worth inferences won’t suffice.

Outcome

The BGH upheld the convictions but set aside the individual sentences for the two money laundering counts and the aggregate sentence, remanding for resentencing under the milder 2021 framework. It corrected and largely upheld certain confiscations under the new law, overturned the EUR 22,936.16 extended value confiscation for lack of requisite findings, and annulled an imprecise confiscation of listed items for lack of specificity.

Dive deeper

• BGH ¦ Judgment of August 8, 2022, 5 StR 372/21 ¦ Link