58 Amendments of Bill NEWTON DUNN related to 2013/0025(COD)
Amendment 23 #
Proposal for a directive
Recital 7
Recital 7
(7) Legal professionals, as defined by the Member States, should be subject to the provisions of this Directive when participating in financial or corporate transactions, including providing tax advice, where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing, terrorist financing, criminal activity as defined in Article 3(4) or aggressive tax avoidance. There should, however, be exemptions from any obligation to report information obtained either before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Thus, legal advice should remain subject to the obligation of professional secrecy unless the legal counsellor is taking part in money laundering or, terrorist financing, criminal activity as defined in Article 3(4) or aggressive tax avoidance, the legal advice is provided for money laundering or, terrorist financing purposes, criminal activity as defined in Article 3(4) or aggressive tax avoidance, or the lawyer knows that the client is seeking legal advice for money laundering or, terrorist financing purposes or criminal activity as defined in Article 3 (4) or aggressive tax avoidance.
Amendment 25 #
Proposal for a directive
Recital 11
Recital 11
(11) The need for accurate and up-to-date information on the beneficial owner is a key factor in tracing criminals who might otherwise hide their identity behind a corporate structure. Member States should therefore ensure that companies retain information on their beneficial ownership, maintain central registers, and make this information available to competent authorities an, obliged entities, and, in the case of listed obliged entities, to the public. In addition, trustees should declare their status to obliged entities.
Amendment 37 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point f
Article 2 – paragraph 1 – point 3 – point f
(f) providers of gambling services.casinos;
Amendment 38 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point f a (new)
Article 2 – paragraph 1 – point 3 – point f a (new)
(fa) on-line gambling;
Amendment 39 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point f b (new)
Article 2 – paragraph 1 – point 3 – point f b (new)
(fb) other providers of gambling services which carry a high risk of being used for money laundering;
Amendment 40 #
Proposal for a directive
Article 3 – paragraph 1 – point 4 – point e a (new)
Article 3 – paragraph 1 – point 4 – point e a (new)
(ea) tax crimes related to direct taxes and indirect taxes;
Amendment 41 #
Proposal for a directive
Article 3 – paragraph 1 – point 4 – point f
Article 3 – paragraph 1 – point 4 – point f
(f) all offences, including tax crimes related to direct taxes and indirect taxes, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards those States which have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months;
Amendment 42 #
Proposal for a directive
Article 3 – paragraph 1 – point 7 – point d – point ii
Article 3 – paragraph 1 – point 7 – point d – point ii
(ii) members of parliaments or other legislative bodies;
Amendment 49 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The Commission shall make the opinion publicly available to assist Member States and obliged entities to identify, manage and mitigate the risk of money laundering and terrorist financing.
Amendment 50 #
Proposal for a directive
Article 7 – paragraph 5
Article 7 – paragraph 5
5. Member States shall make the results of their risk assessments publicly available to the other Member States, the Commission, and EBA, EIOPA and ESMA upon request.
Amendment 53 #
Proposal for a directive
Article 10 – paragraph 1 – point d
Article 10 – paragraph 1 – point d
(d) for providers of gambling servicecasinos, when carrying out occasional transactions amounting to EUR 2 000 or more, whether the transaction is carried out in a single operation or in several operations which appear to be linked; for on-line gambling when establishing the business relationship; for other providers of gambling services which carry a high risk of being used for money laundering;
Amendment 56 #
Proposal for a directive
Article 29 – paragraph 2
Article 29 – paragraph 2
2. Member States shall ensure that the information referred to in paragraph 1 of this Article can be accessed in a timely manner by competent authorities and by obliged entitiesand efficient manner by Union and international competent authorities and by obliged entities. Member States shall seek to constructively cooperate whenever possible and should maintain central registries of company beneficial ownership. Information of beneficial ownership of listed companies shall be made public.
Amendment 65 #
Proposal for a directive
Article 37 – paragraph 1
Article 37 – paragraph 1
Member States shall take all appropriate measures in order to protect employees of the obliged entityensure that the obliged entities prevent their own employees who report suspicions of money laundering or terrorist financing either internally or to the FIU from being exposed to threats or hostile action, including termination of employment, and that these should be provided with adequate legal protection if required.
Amendment 74 #
Proposal for a directive
Article 57 – paragraph 1
Article 57 – paragraph 1
1. Member States shall ensure that competent authorities publish any sanction or measure imposed for breach of the national provisions adopted in the implementation of this Directive without undue delay including information on the type and nature of the breach and the identity of persons responsible for it, unless such publication would. Where the publication of this information could cause seriously jeopardisey to the stability of the financial markets. Where publication w, or could cause a disproportionate damage to the parties involved, competent authorities shall publish the sanctMember States may decide to publish the information on an anonymous basis, and if so, shall request for approval of the Commission. Member States shall apply to the Commission for approval of anonymous publication. The application must include detailed economic analysis supporting the Member State's request. The Commission will have 15 working days to refuse the approval request for the information to be published anonymously. If the Commission has not responded within the 15 working days, the request will have be deemed to be accepted, and the Member States shall then publish the sanctions or measures imposed for breach of the national provisions on an anonymous basis.
Amendment 94 #
Draft legislative resolution
Citation 8 a (new)
Citation 8 a (new)
- having regard to commitments made at the G8 Summit of June 2013 in Northern Ireland;
Amendment 95 #
Draft legislative resolution
Citation 8 b (new)
Citation 8 b (new)
- having regard to the European Commission's recommendations of December 6th 2012 on aggressive tax planning;
Amendment 97 #
Draft legislative resolution
Citation 8 d (new)
Citation 8 d (new)
- having regard to the draft opinion of the Economic and Monetary Affairs Committee on the Directive amending Council Directive 78/660/EEC and 84/349/EEC as regards disclosure and non-financial and diversity information by certain large companies as groups;
Amendment 102 #
Proposal for a directive
Recital 4
Recital 4
(4) Money laundering and terrorist financing are frequently carried out in an international context. Measures adopted solely at national or even European Union level, without taking account of international coordination and cooperation, would have very limited effects. The measures adopted by the European Union in this field should therefore be consistent withmpatible with and at least as stringent as other action undertaken in other international fora. It is noted that avoiding tax and mechanisms of non-disclosure and concealment can be used as strategies employed in money laundering and terrorist financing in order to avoid detection. The European Union action should continue to take particular account of the Recommendations of the FATF, which constitutes the foremost international body active in the fight against money laundering and terrorist financing. With the view to reinforce the efficacy of the fight against money laundering and terrorist financing, Directives 2005/60/EC and 2006/70/EC should be aligned with the new FATF Recommendations adopted and expanded in February 2012.
Amendment 112 #
Proposal for a directive
Recital 7
Recital 7
(7) Legal professionals, as defined by the Member States, should be subject to the provisions of this Directive when participating in financial or corporate transactions, including providing tax advice, where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing, terrorist financing, criminal activity as defined in Article 3 (4) or aggressive tax avoidance. There should, however, be exemptions from any obligation to report information obtained either before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Thus, legal advice should remain subject to the obligation of professional secrecy unless the legal counsellor is taking part in money laundering or, terrorist financing, criminal activity as defined in Article 3(4) or aggressive tax avoidance, the legal advice is provided for money laundering or, terrorist financing purposes, criminal activity as defined in Article 3(4) or aggressive tax avoidance, or the lawyer knows that the client is seeking legal advice for money laundering or terrorist financing purposes, criminal activity as defined in Article 3(4) or aggressive tax avoidance.
Amendment 113 #
Proposal for a directive
Recital 9
Recital 9
(9) It is important to expressly highlight that ‘tax crimes’ related to direct and indirect taxes are included in the broad definition of ‘criminal activity’ under this Directive in line with the revised FATF Recommendations. The European Council of 23 May 2013 called for the need to deal with tax evasion and fraud and to fight money laundering, within the internal market and vis-à-vis non-cooperative third countries and jurisdictions, in a comprehensive manner. The definition of tax crimes is an important step in this regard, as too is public disclosure of certain financial information by large Companies operating in the Union on a country-by-country basis, which assists with detection of tax crimes. Furthermore, it is also important to ensure that obliged entities and legal professionals, as defined by Member States, do not seek to frustrate the intent of this Directive nor facilitate or engage in, aggressive tax planning.
Amendment 115 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
Amendment 120 #
Proposal for a directive
Recital 11
Recital 11
(11) The need for accurate and up-to-date information on the beneficial owner is a key factor in tracing criminals who might otherwise hide their identity behind a corporate structure. Member States should therefore ensure that companies retainmaintain a central public register disclosing adequate, accurate and current information on their beneficial ownership and make this information available to competent authorities and obliged entitof companies. In addition, trustees should declare their status to obliged entities.
Amendment 122 #
Proposal for a directive
Recital 11
Recital 11
(11) The need for accurate and up-to-date information on the beneficial owner is a key factor in tracing criminals who might otherwise hide their identity behind a corporate structure. Member States should therefore ensure that companies retain information on their beneficial ownership and make this information available to competent authorities and obliged entities. In addition, trustees should declare their status to obliged entitieshrough central registers available to public.
Amendment 125 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) The establishment of beneficial ownership registers by Member States would significantly improve the fight against money laundering, terrorist financing, corruption, tax crimes, fraud and other financial crimes. This could be achieved by improving the operations of the existing business registers in the Member States. The interconnectivity of registers is vital to make use of the information contained therein, due to the cross-border nature of business transactions. The interconnection of business registers across the Union is already set out in Directive 2012/17/EU of the European Parliament and of the Council which should be further developed.
Amendment 129 #
Proposal for a directive
Recital 13
Recital 13
(13) The use of the gambling sector to launder the proceeds of criminal activity is of concern. In order to miHowever, one must differentigate the risks related to the sector and to provide parity amongst the providers of gambling services, an obligation for all providers of gambling services to conduct customer due diligence for single transactions of EUR 2 000 or more should be laid down. Member States should consider applying this threshold to the collection of winnings as well as wagering a stake. Pbetween gambling services which bear a high risk of being used for money laundering and those gambling services where such a risk is very low. Further evidence and research are required to understand the nature and extent of the risks in different types of gambling sectors which should be obtained from Member States risk assessments. Accordingly, for the purposes of this Directive, providers of different gambling services with physical premises (e.gctors have to be treated differently. cCasinos and gaming houses) should ensure that customer due diligence, if it is taken at the point of entry to the premises, can be linked to the transactions conducted by the customer on those premises.
Amendment 138 #
Proposal for a directive
Recital 16
Recital 16
(16) The results of risk assessments at Member State level shouldall, where appropriate, be made available to obliged entities to enable them to identify, understand and mitigate their own risks.
Amendment 142 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
Amendment 143 #
Proposal for a directive
Recital 17 b (new)
Recital 17 b (new)
(17b) In order to provide the obliged entities with the means in which to comply with their obligations under this Directive, Member States shall develop official registers of beneficial ownership information of companies and provide, in cooperation with national supervisory authorities and FIUs, the obliged entities with information and tools in order to identify and verify politically exposed persons referred to in article 3 (7) a-f.
Amendment 154 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27a) Lead Authority (One Stop Shop) In the context of anti-money laundering requirements for obliged entities established in more than one Member State or providing services from one Member State to persons in other Member States, the home competent authority of the main establishment of the obliged entity should act as the lead authority responsible for the supervision of compliance by such obliged entities in all Member States in cooperation with the host competent authorities.
Amendment 159 #
Proposal for a directive
Recital 31
Recital 31
(31) Certain aspects of the implementation of this Directive involve the collection, analysis, storage and sharing of data. The processing of personal data should be permitted in order to comply with the obligations laid down in this Directive, including carrying out of customer due diligence, ongoing monitoring, investigation and reporting of unusual and suspicious transactions, identification of the beneficial owner of a legal person or legal arrangement, sharing of information by competent authorities and sharing of information by financial institutions and obliged entities. The personal data collected should be limited to what is strictly necessary for the purpose of complying with the requirements of this Directive and not further processed in a way inconsistent with Directive 95/46/EC. In particular, further processing of personal data for commercial purposes should be strictly prohibited.
Amendment 161 #
Proposal for a directive
Recital 32
Recital 32
(32) The fight against money-laundering and, terrorist financing and aggressive tax avoidance is recognised as an important public interest ground by all Member States.
Amendment 191 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point f
Article 2 – paragraph 1 – point 3 – point f
(f) providers of gambling services. With the exception of casinos and online gambling, Member States may decide to exempt fully or in part certain gambling services from national provisions transposing the provisions of this Directive on the basis of the low risk posed by the nature of operations of such service providers.
Amendment 193 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point f a (new)
Article 2 – paragraph 1 – point 3 – point f a (new)
(fa) With the exception of casinos and online gambling, Member States may decide to exempt certain gambling services from the provisions of this directive on the basis of the proven low risk posed by the nature of operations of such service providers. Any decision taken by a Member State pursuant to this paragraph shall be notified to the Commission.
Amendment 203 #
Proposal for a directive
Article 2 – paragraph 6
Article 2 – paragraph 6
6. In assessing the risk of money laundering or terrorist financing occurring for the purposes of this Article, Member States shall pay special attention to any financial activity which is regarded as particularly likely, by its nature, to be used or abused for money laundering or terrorist financing purposes. In a similar fashion, activities which are particularly unlikely to be used for money laundering or terrorist financing purposes shall be treated accordingly.
Amendment 218 #
Proposal for a directive
Article 3 – paragraph 1 – point 5 – point a – point ii
Article 3 – paragraph 1 – point 5 – point a – point ii
(ii) if there is any doubt that the person(s) identified in point (i) are the beneficial owner(s) or if no person can be found under point (i), the natural person(s) who exercises control over the management of a legal entity through other means;
Amendment 234 #
Proposal for a directive
Article 3 – paragraph 1 – point 11 a (new)
Article 3 – paragraph 1 – point 11 a (new)
(11a) 'non-face to-face' business relationships or transactions mean carrying out of a contract or a transaction, without the simultaneous physical presence of the contractor or intermediary and the consumer, by making exclusive use of one or more of the internet, telemarketing or other electronic means of communication up to and including the time at which the contract is concluded;
Amendment 235 #
Proposal for a directive
Article 3 – paragraph 1 – point 11 b (new)
Article 3 – paragraph 1 – point 11 b (new)
(11b) 'beneficiary' may depend on the context: (a) In trust law, a beneficiary is the person or persons who are entitled to the benefit of any trust arrangement. A beneficiary can be a natural or legal person or arrangement. All trusts other than charitable or statutory permitted non-charitable trusts are required to have ascertainable beneficiaries. While trusts must always have some ultimately ascertainable beneficiary, trusts may have no defined existing beneficiaries but only objects of a power until some person becomes entitled as beneficiary to income or capital on the expiry of a defined period, known as the accumulation period. This period is normally coextensive with the trust perpetuity period which is usually referred to in the trust deed as the trust period. (b) In the context of life insurance or another investment linked insurance policy, a beneficiary is the natural or legal person, or a legal arrangement, or category of persons, who will be paid the policy proceeds if an insured event occurs, which is covered by the policy.
Amendment 236 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that the provisions of this Directive are extended in whole or in part to professions and to categories of undertakings, other than the obliged entities referred to in Article 2(1), which engage in activities which are particularly likely to be used for money laundering or, terrorist financing purposes, criminal activity as defined in Article 3(4) or aggressive tax avoidance.
Amendment 238 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall, following a risk- based approach, ensure that the provisions of this Directive are extended in whole or in part to professions and to categories of undertakings, other than the obliged entities referred to in Article 2(1), which engage in activities which are particularly likely to be used for money laundering or terrorist financing purposes.
Amendment 249 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
The European Banking Authority (hereinafter ‘EBA’), European Insurance and Occupational Pensions Authority (hereinafter ‘EIOPA’) and European Securities and Markets Authority (hereinafter ‘ESMA’) shall provide a joint opinion on the money laundering and terrorist financing risks affecting the internal market. The joint opinion shall include proposals for minimum standards for risk assessments to be conducted by competent national authorities. These minimum standards shall be developed in cooperation with Member States and shall involve the industry and other relevant stakeholders through public consultations and private stakeholders meetings as appropriate.
Amendment 278 #
Proposal for a directive
Article 7 – paragraph 5
Article 7 – paragraph 5
5. Member States shall make the results of their risk assessments available to the other Member States, the Commission, and EBA, EIOPA and ESMA, ESMA and obliged entities upon request.
Amendment 294 #
Proposal for a directive
Article 10 – paragraph 1 – point d
Article 10 – paragraph 1 – point d
(d) for providers of gambling services, when carrying out occasional transactions amounting to EUR 2 000 or more, whether the transaction is carried out in a single operation or in several operations which appear to be linked; According to the provisions of this Directive, Member States may exclude from due diligence measures certain types of gambling services where the risk of money laundering is minimal due to the low stakes used or the means by which these gambling services are provided making them an impractical and inefficient method for laundering money;
Amendment 323 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1a. By way of derogation from Articles 10(a), (b) and (f), 11(2) and 12(1), Member States may allow the institutions and persons covered by this Directive not to apply customer due diligence in respect of:
Amendment 324 #
Proposal for a directive
Article 13 – paragraph 1 a – point 1 (new)
Article 13 – paragraph 1 a – point 1 (new)
(1) electronic money, as defined in Article 1(3)(b) of Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions, where, if the device cannot be recharged, the maximum amount stored in the device is no more than EUR 150, or where, if the device can be recharged, a limit of EUR 2 500 is imposed on the total amount transacted in a calendar year, except when an amount of EUR 1 000 or more is redeemed in that same calendar year by the bearer as referred to in Article 3 of Directive 2000/46/EC,
Amendment 347 #
Proposal for a directive
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
Obliged entities shall take reasonable measures, in line with the risk-based approach, to determine whether the beneficiaries of a life or other investment related insurance policy and/or, where required, the beneficial owner of the beneficiary are politically exposed persons. Those measures shall be taken at the latest at the time of the payout or at the time of the assignment, in whole or in part, of the policy. Where there are higher risks identified, in addition to taking normal customer due diligence measures, Member States shall require obliged entities to:
Amendment 350 #
Proposal for a directive
Article 21 a (new)
Article 21 a (new)
Article 21a Member States, in cooperation with national supervisory authorities and FIUs shall provide obliged entities with the necessary information or tools to identify and verify politically exposed persons referred to in article 3 (7) a-f. The list shall be accessible to competent authorities and obliged entities but shall not exempt obliged entities from their customer due diligence obligations, and obliged entities shall not rely exclusively on that information as sufficient to fulfil those obligations.
Amendment 361 #
Proposal for a directive
Article 29 – paragraph 1
Article 29 – paragraph 1
1. Member States shall ensure that corporate or legal entities established within their territory obtain and hold adequate, accurate and current information on their beneficial ownership in a central public register.
Amendment 377 #
Proposal for a directive
Article 29 – paragraph 2 a (new)
Article 29 – paragraph 2 a (new)
2a. Member States shall cooperate with third countries to encourage that equivalent central registers containing beneficial ownership information are established and information referred to in paragraph 1 of this Article on companies in their countries is made accessible to obliged entities within the EU.
Amendment 388 #
Proposal for a directive
Article 29 – paragraph 2
Article 29 – paragraph 2
2. Member States shall ensure that the information referred to in paragraph 1 of this Articlegeneral public, Union and International competent authorities and obliged entities can be accessed in a timely manner by competent authorities and by obliged entities in an efficient and timely manner all information contained in the central public register referred to in paragraph 1.
Amendment 392 #
Proposal for a directive
Article 29 – paragraph 2
Article 29 – paragraph 2
2. Member States shall ensure that the informationcentral registers referred to in paragraph 1 of this Article can be accessed in a timeinclude adequate, accurate and current information on the beneficial owner(s) established within their territory which shall generally mannerd speedily be available to the public at a minimal cost. These registers shall also be accessible by competent authorities and by, obliged entities and the public from other Member States.
Amendment 414 #
Proposal for a directive
Article 31 – paragraph 1 a (new)
Article 31 – paragraph 1 a (new)
1a. The persons referred to in Article 2(1)(3)(a), (b), and (d), shall inform the FIU and / or appropriate self-regulatory body of the profession concerned, as detailed in Article 33(1), if they suspect, or have reasonable grounds to suspect that their services are being misused for the purpose of criminal activity, in particular, that which is defined in Article 3 (4), and aggressive tax avoidance.
Amendment 435 #
Proposal for a directive
Article 37 – paragraph 1
Article 37 – paragraph 1
Member States shall take all appropriate measures in order to protect employeensure that individuals, including employees and representatives of the obliged entity, who report suspicions of money laundering or terrorist financing either internally or to the FIU from being exposed to threare duly protected from threats or hostile action, and from all forms of adverse treatment, adverse consequence, or adverse or discriminatory employment actions. Member States or hostile actionshall guarantee legal aid free of charge for such persons and shall provide secure communication channels, including anonymous channels, for persons to report suspicions of money laundering or terrorist financing.
Amendment 456 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1
Article 43 – paragraph 1 – subparagraph 1
Member States shall require that obliged entities take measures proportionate to their risks, nature and size so that their relevant employees are aware of the provisions adopted pursuant to this Directive, including relevant data protection requirements.
Amendment 457 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 2
Article 43 – paragraph 1 – subparagraph 2
These measures shall include participation of their relevant employees in special ongoing training programmes to help them recognise operations which may be related to money laundering or terrorist financing and to instruct them as to how to proceed in such cases.
Amendment 475 #
Proposal for a directive
Article 45 – paragraph 6 – introductory part
Article 45 – paragraph 6 – introductory part
6. Member States shall ensure that competent authorities thatwhen applying a risk- sensitivebased approach to supervision, competent authorities:
Amendment 482 #
Proposal for a directive
Article 53 – paragraph 1
Article 53 – paragraph 1
1. Member States shall encouragrequire their FIUs to use protected channels of communication between FIUs and to use the decentralised computer network FIU.netthemselves.
Amendment 489 #
Proposal for a directive
Article 54 – paragraph 1
Article 54 – paragraph 1
Member States shall ensure thatcourage their FIUs to cooperate with Europol regarding analyses carried out having a cross-border dimension concerning at least two Member States.
Amendment 542 #
Proposal for a directive
Annex 3 – paragraph 1 – point 3 – point c
Annex 3 – paragraph 1 – point 3 – point c
(c) countries subject to sanctions, embargos or similar measures issued by, for example, the United Nations and the European Union;