Chapitre 1 Chapitre 1

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1 A Guide t Directive (EU) 2015/849 f 20 May 2015 n the preventin f the use f the financial system fr the purpses f mney laundering r terrrist financing (the Furth AML Directive ) This guide has been prepared fr CEPI-CEI member assciatins t assist them in mnitring the implementatin f the Furth AML Directive. It highlights pints f practical imprtance fr real estate prfessinals

2 The Furth AML Directive aims t strengthen EU rules n anti-mney laundering and terrrist financing taking int accunt the 2012 recmmendatins f the Financial Actin Task Frce (FATF) It fcuses n risk assessment and takes a risk-based apprach, impsing rules n due diligence which vary accrding t whether there is a high r lw risk. It impses minimum requirements, Member States are free t impse stricter requirements if they cnsider it necessary t d s accrding t the risk. It will increase transparency in the identificatin f beneficial wners, all Member States will be required t hld infrmatin n beneficial wners f all crprate and ther legal entities in a natinal central register. It widens the scpe f the due diligence requirements. The threshld fr cash transactins fr traders in gds is lwered t EUR and dmestic, as well as freign, plitically expsed persns (PEPS) are subject t enhanced vigilance measures. The Eurpean Cmmissin can nw identify specifically high risk third cuntries, requiring additinal cntrls fr clients cming frm these cuntries All EU Member States have tw years frm when the Directive cmes int frce (26 June 2015) t implement its measures s that the Directive must be transpsed int natinal law by July A Guide t the Furth AML Directive

3 What are the mst imprtant elements f the Directive fr real estate prfessinals? Scpe f the Directive The Directive creates bligatins fr the bliged entities including estate agents. This is the same as the Third AML Directive. Hwever, the Furth AML Directive als cntains wrding in the intrductry recitals t the Directive t the effect that estate agents culd be understd t include letting agents, where applicable. The recitals cntain a statement f reasns fr the terms f the Directive, they serve fr interpretatin. The riginal prpsal fr the revisin f the Directive included letting agents as being within the bliged entities. This is smething t which CEPI-CEI bjected as being cnfusing and unnecessary. This wrding was remved, but replaced by the current wrding abve. The explanatin given at the time was that this wrding is intended t apply in cuntries where letting agents exist, leaving flexibility t ther Member States as t whether r nt t include letting agents in their wn natinal measures. It is understd that this is a decisin which will have t be based n the actual risks invlved in a particular market and it is imprtant that it is given careful cnsideratin. A Guide t the Furth AML Directive

4 Risk assessment and plicies Articles 6-9 The Eurpean Cmmissin is required t cnduct a risk assessment and reprt n thse risks at EU level by 26 June This reprt has t be made available t Member States and bliged entities. Each Member State must als make a risk assessment and designate an authrity t crdinate the natinal respnse t that risk. Obliged entities must als carry ut a risk assessment, the steps t be taken cncerning which must be prprtinate t the nature and size f the bliged entities. These risk assessments must be dcumented, kept up-t-date and made available t the relevant cmpetent authrities. Obliged entities must als have in place plicies, cntrls and prcedures t mitigate and manage effectively the risks f mney laundering identified at the varius levels, again prprtinate t the nature and size f the bliged entities. Obliged entities must have in place plicies, cntrls and prcedures t manage the risks effectively. These must include the develpment f mdel risk management practices, custmer due diligence, reprting, recrd-keeping, internal cntrl and cmpliance management including (depending n the size f the business) the appintment f a cmpliance fficer at management level and emplyee screening (with apprval frm senir management fr the plicies, cntrls and prcedures put in place). A Guide t the Furth AML Directive

5 Custmer Due Diligence Articles Custmer due diligence measures have t be applied in the fllwing circumstances: when establishing a business relatinship; when carrying ut an ccasinal transactin that amunts t EUR r mre r cnstitutes a transfer f funds exceeding EUR 1 000; when there is a suspicin f mney laundering r terrrist financing; when there are dubts abut the veracity r adequacy f previusly btained custmer identificatin data. They must include: identifying the custmer and verifying the custmer s identity (befre the establishment f a business relatinship r the carrying ut f the transactin Article 14); Identifying the beneficial wner and taking reasnable measures t verify that persn s identity, as regards legal persns, trusts, cmpanies, fundatins and similar legal arrangements; assessing and, as apprpriate, btaining infrmatin n the purpse and intended nature f the business relatinship; cnducting nging mnitring f the business relatinship. Obliged entities must be able t demnstrate that the measures are apprpriate in view f the risks f mney laundering and terrrist financing that have been identified. When assessing the risks they must take int accunt at least the purpse f the relatinship, the size f the transactin and the regularity r duratin f the business relatinship. A Guide t the Furth AML Directive

6 Simplified custmer due diligence Articles Where a Member State r an bliged entity identifies areas f lwer risk, bliged entities may be allwed t apply simplified custmer due diligence measures. Obliged entities must first ascertain that the business relatinship r transactin presents a lwer degree f risk. Obliged entities must carry ut sufficient mnitring f the transactins and business relatinships t enable the detectin f unusual r suspicius transactins. The factrs t be taken int accunt include the ptentially lwer risk situatins listed in Annex II t the Directive. Guidelines must be addressed t the cmpetent authrities n the risk factrs t be taken int cnsideratin and the measures t be taken in situatins where simplified custmer due diligence measures are apprpriate. A Guide t the Furth AML Directive

7 Enhanced custmer due diligence Articles In certain cases f higher risk, and when dealing with high-risk third cuntries, bliged entities must apply enhanced custmer due diligence measures. Obliged entities must examine, as far as reasnably pssible, the backgrund and purpse f all cmplex and unusually large transactins, and all unusual patterns f transactins. The factrs t be taken int accunt include at least the ptentially higher-risk situatins set ut in Annex III f the Directive. Guidelines must be issued t the cmpetent authrities n the risk factrs t be taken int cnsideratin and the measures t be taken in situatins where enhanced custmer due diligence measures are apprpriate. Fr transactins r business relatinships with plitically expsed persns (PEPs), their family members r knwn clse assciates, bliged entities must als: have in place apprpriate risk management systems t determine whether the custmer r the beneficial wner f the custmer is a PEP; btain senir management apprval fr establishing r cntinuing business relatinships with PEPs; take adequate measures t establish the surce f wealth and surce f funds that are invlved in business relatinships r transactins with such persns; cnduct enhanced, nging mnitring f thse business relatinships. A Guide t the Furth AML Directive

8 Perfrmance by third parties Articles Obliged entities may be allwed t rely n third parties t meet the custmer due diligence requirements. Hwever the bliged entity which relies upn a third party still remains respnsible fr meeting thse requirements. Third parties means bliged entities r thers that apply supervised custmer due diligence requirements (but nt thse established in high-risk third cuntries). Infrmatin must be btained frm the third party relied upn. Obliged entities may cmply thrugh a grup prgramme prvided that: the bliged entity relies n infrmatin prvided by a third party that is part f the same grup. that grup applies custmer due diligence measures and rules in accrdance with this Directive r equivalent the effective implementatin f which is supervised at grup level by a cmpetent authrity. A Guide t the Furth AML Directive

9 Beneficial wnership infrmatin Articles Member States must ensure that crprate and ther legal entities hld adequate, accurate and current infrmatin n their beneficial wnership and that thse entities are required t prvide infrmatin n their legal and beneficial wner t bliged entities when they are taking custmer due diligence measures. This infrmatin must be held in a central register in each Member State. The infrmatin held must be accessible t bliged entities when they are carrying ut custmer due diligence. Any fees charged must nt exceed the administrative csts. There are exemptins fr access t infrmatin in exceptinal circumstances, such as the risk f fraud, kidnapping, blackmail, vilence r intimidatin, r where the beneficial wner is a minr. Similar rules apply t the trustees f any express trust wh must hld infrmatin n beneficial wnership regarding the trust including the identity f the settlr, trustee and prtectr (if any), the beneficiaries and any ther natural persn exercising effective cntrl ver the trust. This infrmatin must be held in a central register when the trust generates tax cnsequences. A Guide t the Furth AML Directive

10 Reprting bligatins Articles Each Member State must establish a Financial Intelligence Unit (FIU) t prevent and detect mney laundering. The FIU is respnsible fr receiving and analysing suspicius transactin reprts and ther infrmatin relevant t mney laundering. Obliged entities must cperate with the FIU by reprting t it when the bliged entity knws, suspects r has reasnable grunds t suspect that funds are the prceeds f criminal activity r are related t terrrist financing. All suspicius activities, including attempted transactins, must be reprted. Member States may designate an apprpriate self-regulatry bdy f the prfessin cncerned in the case f bliged entities including estate agents. Such a self-regulatry bdy will receive the infrmatin referred t abve and frward it t the FIU. A self-regulatry bdy means a bdy that represents members f a prfessin and has a rle in regulating them, in perfrming certain supervisry r mnitring type functins and in ensuring the enfrcement f the rules relating t them. Obliged entities must refrain frm carrying ut transactins which they knw r suspect t be related t prceeds f criminal activity until they have cmpleted the necessary actin and cmplied with any further specific instructins frm the FIU r cmpetent authrities. A Guide t the Furth AML Directive

11 Data and recrds Articles Obliged entities must retain dcuments and infrmatin including: a cpy f the dcuments and infrmatin necessary fr custmer due diligence fr five years after the end f the business relatinship; supprting evidence and recrds f transactins fr five years after the end f the business relatinship. Upn the expiry f the retentin perids persnal data must be deleted unless natinal law prvides therwise. Persnal data prcessed by bliged entities must be used nly fr the purpses f this Directive, and nt fr cmmercial purpses. Obliged entities must prvide new clients with the fllwing infrmatin abut data prtectin befre establishing a business relatinship r carrying ut an ccasinal transactin including a general ntice abut the bligatins f bliged entities t prcess persnal directive fr preventin f mney laundering purpses: the identity f the cntrller and f his representatin (if any); the purpses f the prcessing fr which the data are intended; any further infrmatin such as: the recipients r categries f recipients f the data; whether replies t the questins are bligatry r vluntary, as well as the pssible cnsequences f failure t reply; the existence f the right f access t and the right t rectify the data cncerning him in s far as necessary. A Guide t the Furth AML Directive

12 Internal prcedures and training Articles Obliged entities that are part f a grup must implement grup-wide plicies and prcedures. Obliged entities must take measures prprtinate t their risks, nature and size s that their emplyees are aware f the prvisins adpted and data prtectin requirements. These measures must include special training prgrammes t help recgnise pssible mney laundering peratins and instructins as t hw t prceed. Member States must make sure that bliged entities have access t up-t-date infrmatin n mney laundering practices and indicatins leading t the recgnitin f suspicius transactins tgether with timely feedback n reprts f suspected mney laundering. Obliged entities must (where applicable) identify the member f the management bard wh is respnsible fr the implementatin f the requirements necessary t cmply with this Directive. A Guide t the Furth AML Directive

13 Sanctins Articles Sanctins fr the breach f natinal rules implementing the Directive by bliged entities must be effective, prprtinate and dissuasive. Member States may impse criminal sanctins and lay dwn rules n administrative sanctins and measures (Member States may decide nt t impse administrative sanctins fr breaches subject t criminal sanctins). Sanctins and measures (fr legal persns) can be applied t the members f the management bdy r thers respnsible fr the breach. There are minimum rules n sanctins fr serius, repeated r systematic breaches f the requirements n custmer due diligence, suspicius transactin reprting, recrd-keeping and internal cntrls requiring. a public statement which identifies the natural r legal persn and the nature f the breach; an rder requiring the natural r legal persn t stp the cnduct and nt repeat it; withdrawal r suspensin f authrisatin (if applicable); a temprary ban frm exercising managerial functins in bliged entities (fr the persn respnsible); maximum administrative pecuniary sanctins f at least twice the amunt f the benefit derived frm the breach (if it can be determined) r at least EUR Cmpetent authrities may als be empwered t impse additinal sanctins. When determining the type and level f sanctins the cmpetent authrities shuld take int accunt the gravity f the breach, degree f respnsibility, financial strength, benefit derived, lsses t third parties, level f cperatin and previus breaches. A Guide t the Furth AML Directive

14 Cnclusin The Directive makes sme imprtant changes t the scpe f the rules fr the preventin f mney laundering and terrrist financing. Estate agents (and letting agents where applicable) are directly affected but Member States can chse t extend the rules t ther prfessins. Any decisins have t take a risk-based apprach s it is imprtant t have an awareness and understanding f the risks in particular markets. Therefre it is imprtant t pay clse attentin t the way in which these measures are implemented. CEPI-CEI member assciatins are encuraged t cnsider carefully hw best the measures can be adapted t their particular natinal circumstances and are f curse invited t direct any questins they may have abut the Eurpean legislatin t the CEPI-CEI Secretariat. CEPI-CEI aisbl Brussels, September 2015 Fr further infrmatin abut the cntents f this guide please cntact Janet Griffiths at CEPI-CEI aisbl avenue de Tervueren 36, bte 2, B Brussels tel , fax janet.griffiths@cepi-eci.eu. Remarks: All rights are reserved, cpyright 2015 CEPI-CEI. N part f this guide may be reprduced, stred r transmitted in any frm r by any means withut acknwledgement f the surce. This guide is intended fr the infrmatin and use f CEPI-CEI member assciatins nly. A Guide t the Furth AML Directive

15 Annex I Useful surces f infrmatin: Full text f Directive (EU) 2015/849 n the preventin f the use f the financial system fr the purpses f mney laundering r terrrist financing Eurpean Cmmissin webpage n financial crime Financial Actin Task Frce (FATF) A Guide t the Furth AML Directive