Current case law on the Money Laundering Act

Recent case law on the Money Laundering Act (GwG) provides important clarifications - but also new uncertainties - particularly in the area of account blocking and exemption from liability following suspicious activity reports.

Obligation to release after three-day period

Several regional courts (including Wiesbaden and Frankfurt am Main) have dealt with the interpretation of Section 46 (1) No. 2 GwG. Result: After expiry of the three-day standstill period, a conspicuous transaction for which a suspicious transaction report has been submitted must generally be released if no feedback is received from the authorities.

The Wiesbaden Regional Court ordered a bank to pay out a blocked account balance - an account block that went beyond the deadline was inadmissible. The Regional Court of Frankfurt am Main ruled accordingly: even in the case of cross-border transfers, no further blocking may take place without an official order. Both judgements emphasise that Section 46 GwG stipulates a mandatory release obligation after the deadline has expired - there is no further discretionary leeway for the obligated parties.

Deviating administrative practice and amended BaFin AuAs

BaFin, on the other hand, took a different view in the past: obligated parties should check after three days whether it still appears necessary to adhere to the block. This divergent interpretation created considerable uncertainty in practice.

The updated BaFin Interpretation and Application Guidance (AuA AT 2025) now attempts to build a bridge by emphasising that after the deadline has expired, the transaction should "generally" be released if there are no concrete grounds for suspicion. Only if there is a strong suspicion of money laundering or terrorist financing should obliged entities continue to halt the transaction.

In addition, the future AML Regulation (Art. 71 and 72) also contains requirements for transaction approval: after the three-day period has expired, an additional risk assessment must be carried out by obliged entities. It is not yet clear how this will be implemented in practice.

Exemption from liability for suspicious activity reports

The Higher Regional Court of Frankfurt am Main confirmed in a judgement that obligated parties are generally exempt from liability in accordance with Section 48 GwG if they correctly submit a suspicious activity report. This protection only ceases to apply in cases of intent or gross negligence. Incorrect documentation in accordance with Section 8 GwG (e.g. incomplete reasons for submitting the report) does not automatically give rise to liability for obliged entities.

It is also important to note that obliged entities are not obliged to conduct their own criminal investigations before submitting a SAR. Objective anomalies in a specific individual case are decisive.

Conclusion

The case law clarifies: After three days, there is an obligation to release frozen assets if no official order has been received. At the same time, uncertainty remains, as detention is still required if suspicion arises. For obliged entities, this means that internal processes and documentation standards need to be even more secure - particularly with regard to the future requirements of the AML Regulation.

Note: For a detailed analysis, see the article by our experts Markus Haufellner, Dr Lars Haffke and Emilie Heinrichs in the BKR (Haufellner/Haffke/Heinreichs, "Aktuelle Entwicklungen im Geldwäscherecht", Zeitschrift für Bank und Kapitalmarktrecht (BKR), 2025, 392)