37 Amendments of Dragoş TUDORACHE related to 2021/0239(COD)
Amendment 126 #
Proposal for a regulation
Recital 2
Recital 2
(2) The main challenge identified in respect to the application of the provisions of Directive (EU) 2015/849 laying down obligations for private sector actors, the so- called obliged entities, is the lack of direct applicability of those rules and a fragmentation of the approach along national lines. Whereas those rules have existed and evolved over three decades, they are still implemented in a manner not fully consistent with the requirements of an integrated internal market. Therefore, it is necessary that rules on matters currently covered in Directive (EU) 2015/849 which may be directly applicable by the obliged entities concerned are addressed in a new Regulation in order to achieve the desired uniformity of application and to eliminate divergences and inconsistencies of implementation practices within Member States.
Amendment 132 #
Proposal for a regulation
Recital 5
Recital 5
(5) Since the adoption of Directive (EU) 2015/849, recent developments in the Union’s criminal law framework have contributed to strengthening the prevention and fight against money laundering, its predicate offences and terrorist financing. Directive (EU) 2018/1673 of the European Parliament and of the Council25 has led to a common understanding of the money laundering crime and its predicate offences. Directive (EU) 2017/1371 of the European Parliament and of the Council26 defined financial crimes affecting the Union’s financial interest, which should also be considered predicate offences to money laundering. Directive (EU) 2017/541 of the European Parliament and of the Council27 has achieved a common understanding of the crime of terrorist financing. As those concepts are now clarified in Union criminal law, it is no longer needed for the Union’s AML/CFT rules to define money laundering, its predicate offences or terrorist financing. Instead, the Union’s AML/CFT framework should be fully coherent with the Union’s criminal law framework with the aim to improve public safety and protection of EU citizens. _________________ 25 Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law (OJ L 284, 12.11.2018, p. 22). 26 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29). 27 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6).
Amendment 168 #
Proposal for a regulation
Recital 25
Recital 25
(25) It is important that obliged entities take all measures at the level of their management to implement internal policies, controls and procedures and to implement AML/CFT requirements. While a person at management level should be identified as being responsible for implementing the obliged entity’s policies, controls and procedures, the responsibility for the compliance with AML/CFT requirements should rest ultimately with the governingmanagement body of the entity. Tasks pertaining to the day-to-day implementation of the obliged entity’s AML/CFT policies, controls and procedures should be entrusted to a compliance officer.
Amendment 190 #
Proposal for a regulation
Recital 49
Recital 49
(49) In order to protect the proper functioning of the Union financial system from money laundering and terrorist financing, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission to identify third countries, whose shortcomings in their national AML/CFT regimes represent a threat to the integrity of the Union’s internal market. The changing nature of money laundering and terrorist financing threats from outside the Union, facilitated by a constant evolution of technology and of the means at the disposal of criminals, requires that quick and continuous adaptations of the legal framework as regards third countries be made in order to address efficiently existing risks and prevent new ones from arising. The Commission should take into account information from other EU bodies, such as law enforcement agencies, international organisations and standard setters in the field of AML/CFT, such as FATF public statements, mutual evaluation or detailed assessment reports or published follow-up reports, and adapt its assessments to the changes therein, where appropriate.
Amendment 197 #
Proposal for a regulation
Recital 52
Recital 52
(52) Countries that are not publicly identified as subject to calls for actions or increased monitoring by international standard setters might still pose a threat to the integrity of the Union’s financial system. To mitigate those risks, it should be possible for the Commission to take action by identifying, based on a clear set of criteria and with the support of AMLA and other EU bodies, such as law enforcement agencies, involved in the AML/CFT framework, third countries posing a specific and serious threat to the Union’s financial system, which may be due to either compliance weaknesses or significant strategic deficiencies of a persistent nature in their AML/CFT regime, and the relevant mitigating measures. Those third countries should be identified by the Commission. According to the level of risk posed to the Union’s financial system, the Commission should require the application of either all enhanced due diligence measures and country-specific countermeasures, as it is the case for high-risk third countries, or country-specific enhanced customer due diligence, such as in the case of third countries with compliance weaknesses.
Amendment 209 #
Proposal for a regulation
Recital 60 a (new)
Recital 60 a (new)
(60a) Business relationships and transactions involving high-net-worth individuals, particularly those designated by EU sanction regime or residing in high risk third countries, who present one or several factors of higher risk could seriously compromise the integrity of the Union’s financial system and cause serious vulnerabilities in the internal market. Obliged entities should therefore apply enhanced customer due diligence measures as laid down in this Regulation with respect to those individuals
Amendment 211 #
Proposal for a regulation
Recital 62
Recital 62
(62) Obliged entities may outsource tasks relating to the performance of customer due diligence to an agent or external service provider, such as an AML compliance entity, unless they are established in third countries that are designated as high-risk, as having compliance weaknesses or as posing a threat to the Union’s financial system. These outsourcing activities should support obliged entities, to obtain complete, timely and accurate information by using decision-making tools, such as global news, business, regulatory and legal databases. In the case of agency or outsourcing relationships on a contractual basis between obliged entities and external service providers not covered by AML/CFT requirements, any AML/CFT obligations upon those agents or outsourcing service providers could arise only from the contract between the parties and not from this Regulation. Therefore, the responsibility for complying with AML/CFT requirements should remain entirely with the obliged entity itself. The obliged entity should in particular ensure that, where an outsourced service provider is involved for the purposes of remote customer identification, the risk-based approach is respected.
Amendment 230 #
Proposal for a regulation
Recital 73
Recital 73
(73) In view of the specific structure of certain legal entities such as foundations, and the need to ensure sufficient transparency about their beneficial ownership, such entities and legal arrangements similar to trusts should be subject to equivalent beneficial ownership requirements as those that apply to express trusts. However, these requirements shall not lead to excessive burden on civil society organisations, with a restrictive or coercive effect on their work.
Amendment 231 #
Proposal for a regulation
Recital 77
Recital 77
(77) Suspicious transactions, including attempted transactions, and other information relevant to money laundering, its predicate offences and terrorist financing, should be reported to the FIU, which should serve as a single central national unit for receiving and, analysing reported suspicions and for disseminating to the competent authorities the results of its analyses. FIU's shall strengthen cooperation with competent authorities to ensure that meaningful information is exchanged in a timely and constructive manner. All suspicious transactions, including attempted transactions, should be reported, regardless of the amount of the transaction. Reported information may also include threshold-based information. The disclosure of information to the FIU in good faith by an obliged entity or by an employee or director of such an entity should not constitute a breach of any restriction on disclosure of information and should not involve the obliged entity or its directors or employees in liability of any kind.
Amendment 302 #
Proposal for a regulation
Article 2 – paragraph 1 – point 25 – point d – point i a (new)
Article 2 – paragraph 1 – point 25 – point d – point i a (new)
(ia) other functions falling under the definition of politically exposed person, according to the country of origin;
Amendment 317 #
Proposal for a regulation
Article 2 – paragraph 1 – point 36 a (new)
Article 2 – paragraph 1 – point 36 a (new)
(36a) 'AML compliance entity' means an external entity or digital platform, acting in full respect of GDPR, which contributes to the effective compliance with the AML rules of the obliged entities subject to the obligations set out in this Regulation.
Amendment 343 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point e
Article 3 – paragraph 1 – point 3 – point e
(e) persons trading in luxury goods and precious metals and stones;
Amendment 371 #
Amendment 391 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Article 6a Minimum requirements regarding citizenship and residence by investment schemes A Member State whose national law grants citizenship or residence rights in exchange for any kind of investment, such as capital transfers, purchase or renting of property, investment in government bonds, investment in corporate entities, donation or endowment of an activity contributing to the public good and contributions to the state budget, shall ensure that public authorities that process applications for such citizenship and residence rights carry out at least the following measures: (a) require that transactions are carried out by means of a business relationship with an obliged entity established in that Member State; (b) request information from involved obliged entities about customer due diligence measures carried out; (c) obtain and record detailed information, substantiated by verified documents, on the identity of the applicant, on any of the applicant’s business interests and employment activities in the previous 10 years and on the applicant’s source of funds and source of wealth; (d) require clearance from law enforcement authorities, substantiated by evidence of the absence of any criminal activities on the part of the applicant; (e) ensure that the applicant shall not have connections with suspicious activities, including close business relations with persons having a criminal record related to money laundering, terrorist financing or predicate offences, or with individuals designated by EU sanction regimes; (f) any applicant shall be subject to minimum physical presence requirements. The applicant's presence shall be regularly monitored by relevant authorities and non-compliance with physical presence requirements result in the non-granting or withdrawal of citizenship or residence rights.
Amendment 423 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Obliged entities shall appoint one executive member of their board of directors or, if there is no board, of its equivalent governingmanagement body who shall be responsible for the implementation of measures to ensure compliance with this Regulation (‘compliance manager’). Where the entity has no governingmanagement body, the function should be performed by a member of its senior management.
Amendment 431 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The compliance manager shall be responsible for implementing the obliged entity’s policies, controls and procedures and for receiving information on significant or material weaknesses in such policies, controls and procedures. The compliance manager shall regularly report on those matters to the board of director or equivalent governingmanagement body. For parent undertakings, that person shall also be responsible for overseeing group- wide policies, controls and procedures.
Amendment 438 #
Proposal for a regulation
Article 9 – paragraph 3 – introductory part
Article 9 – paragraph 3 – introductory part
3. Obliged entities shall have a compliance officer, to be appointed by the board of directors or governingmanagement body, who shall be in charge of the day-to-day operation of the obliged entity’s anti- money laundering and countering the financing of terrorism (AML/CFT) policies. That person shall also be responsible for reporting suspicious transactions to the Financial Intelligence Unit (FIU) in accordance with Article 50(6).
Amendment 462 #
Proposal for a regulation
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. By way of derogation from points (a), (b) and (c) of paragraph 1 and Article 19, and based on an appropriate risk assessment which demonstrates a low risk, obliged entities are allowed not to apply certain customer due diligence measures with respect to electronic money, where all of the following risk- mitigating conditions are met: (a) the payment instrument is not reloadable, or has a maximum monthly payment transactions limit of EUR 150 which can be used only in that Member State; (b) the maximum amount stored electronically does not exceed EUR 150; (c) the payment instrument is used exclusively to purchase goods or services; (d) the payment instrument cannot be funded with anonymous electronic money; (e) the issuer carries out sufficient monitoring of the transactions or business relationship to enable the detection of unusual or suspicious transactions.
Amendment 463 #
Proposal for a regulation
Article 15 – paragraph 1 b (new)
Article 15 – paragraph 1 b (new)
1b. The derogation provided for in paragraph 1a is not applicable in the case of redemption in cash or cash withdrawal of the monetary value of the electronic money, or in the case of remote payment transactions.
Amendment 498 #
Proposal for a regulation
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. Where an obliged entity is unable to comply with the customer due diligence measures laid down in Article 16(1), it shall refrain fromnot carrying out a transaction or establishing a business relationship, and shall terminate the business relationship and consider filingfile a suspicious transaction report to the FIU in relation to the customer in accordance with Article 50.
Amendment 571 #
Proposal for a regulation
Article 22 – paragraph 2 – point c a (new)
Article 22 – paragraph 2 – point c a (new)
(ca) the residual risk, taking into account a proper risk assessment, the risk mitigating measures put in place by the obliged entities, also considering innovation and technical developments to detect and prevent suspicious transactions.
Amendment 596 #
Proposal for a regulation
Article 24 – paragraph 3
Article 24 – paragraph 3
3. The Commission, when drawing up the delegated acts referred to in paragraph 2 shall take into account information on jurisdictions under increased monitoring by EU bodies, such as law enforcement agencies, international organisations and standard setters with competence in the field of preventing money laundering and combating terrorist financing, as well as relevant evaluations, assessments, reports or public statements drawn up by them.
Amendment 607 #
Proposal for a regulation
Article 25 – paragraph 2 – point a – point v
Article 25 – paragraph 2 – point a – point v
(v) requirements relating to the availability of accurate and timely information of the beneficial ownership of legal persons and arrangements to competent authoritiesheld by a public authority or body functioning as beneficial ownership mechanism that is as efficient, if the alternative mechanism is deemed appropriate by the Commission, based on the recommendation of AMLA;
Amendment 613 #
Proposal for a regulation
Article 25 – paragraph 2 – point c a (new)
Article 25 – paragraph 2 – point c a (new)
(ca) the recurrence of the involvement of the third country into money laundering and terrorist financing schemes in criminal analysis and investigations of Member States supported by Europol;
Amendment 624 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
4. The Commission, when drawing up the delegated acts referred to in paragraph 1, shall take into account in particular relevant evaluations, assessments or reports drawn up by EU bodies, such as law enforcement agencies, international organisations and standard setters with competence in the field of preventing money laundering and combating terrorist financing.
Amendment 635 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
3. In issuing and reviewing the guidelines referred to in paragraph 1, AMLA shall take into account evaluations, assessments or reports of EU bodies, such as law enforcement agencies, international organisations and standard setters with competence in the field of preventing money laundering and combating terrorist financing.
Amendment 715 #
Proposal for a regulation
Article 40 – paragraph 1 – subparagraph 1
Article 40 – paragraph 1 – subparagraph 1
The obliged entity shall remain fully liable for any action of agents or external service providers, including AML compliance entities, to which activities are outsourced.
Amendment 740 #
Proposal for a regulation
Article 40 – paragraph 3
Article 40 – paragraph 3
3. Where an obliged entity outsources a task pursuant to paragraph 1, it shall ensure that the agent or external service provider applies the measures and procedures adopted by the obliged entity. The conditions for the performance of such tasks shall be clearly specified and laid down in a written agreement between the obliged entity and the outsourced entity. The obliged entity shall perform regular controls to ascertain the effective implementation of such measures and procedures by the outsourced entity. The frequency of such controls shall be determined on the basis of the critical nature of the tasks outsourced.
Amendment 779 #
Proposal for a regulation
Article 42 – paragraph 2 a (new)
Article 42 – paragraph 2 a (new)
Amendment 785 #
Proposal for a regulation
Article 42 – paragraph 4
Article 42 – paragraph 4
4. The Commission shall make recommendations to Member Statedecide via implementing acts on the specific rules and criteria to identity the beneficial owner(s) of legal entities other than corporate entities by [1 year6 months from the date of application of this Regulation]. In the event that Member States decide not to apply any of the recommendations, they shall notify the Commission thereof and provide a justification for such a decision.
Amendment 816 #
Proposal for a regulation
Article 45 – paragraph 2
Article 45 – paragraph 2
2. Where, after having exhausted all possible means of identification pursuant to Articles 42 and 43, no person is identified as beneficial owner, or where there is any doubt that the person(s) identified is the beneficial owner(s), the corporate or other legal entities shall keep records of the actions taken in order to identify their beneficial owner(s) and file a suspicious transaction report in accordance with Article 17.
Amendment 818 #
Proposal for a regulation
Article 45 – paragraph 2 a (new)
Article 45 – paragraph 2 a (new)
2a. Where there are reasons to doubt the accuracy of the beneficial ownership information, corporate or other legal entities shall provide to the competent authorities additional information on a risk-sensitive basis, including resolutions of the board of directors and minutes of their meetings, partnership agreements, trust deeds, power of attorney or other contractual agreements and documentation.
Amendment 821 #
Proposal for a regulation
Article 45 – paragraph 3 – point a
Article 45 – paragraph 3 – point a
(a) a statement, accompanied by a justification and supporting documents, that there is no beneficial owner or that the beneficial owner(s) could not be identified and verified;
Amendment 831 #
Proposal for a regulation
Article 48 – paragraph 1 – introductory part
Article 48 – paragraph 1 – introductory part
1. Beneficial ownership information of legal entities incorporated outside the Union or of express trusts or similar legal arrangements administered outside the Union shall be collected in accordance with national systems and held in the central register referred to in Article 10 of Directive [please insert reference – proposal for 6th Anti-Money Laundering Directive - COM/2021/423 final] set up by the Member State where such entities or trustees of express trusts or persons holding equivalent positions in similar legal arrangements:
Amendment 840 #
Proposal for a regulation
Article 49 – paragraph 1
Article 49 – paragraph 1
Member States shall lay down the rules on sanctions applicable to infringements of the provisions of this Chapter in accordance with Article 40 of Directive [please insert reference – proposal for 6th Anti-Money Laundering Directive - COM/2021/423 final] and shall take all measures necessary to ensure that they are implemented. The sanctions provided for must be effective, proportionate and dissuasive.
Amendment 866 #
Proposal for a regulation
Article 50 – paragraph 5
Article 50 – paragraph 5
5. AMLA shall issue and periodically update guidance on indicators of unusual or suspicious activity or behaviours with the assistance of other EU bodies involved in the AML/CFT framework.
Amendment 885 #
Proposal for a regulation
Article 55 – paragraph 1
Article 55 – paragraph 1
1. To the extent that it is strictly necessary for the purposes of preventing money laundering and terrorist financing, obliged entities may processand AML compliance entities may process personal data, including special categories of personal data referred to in Article 9(1) of Regulation (EU) 2016/679 and personal data relating to criminal convictions and offences referred to in Article 10 of that Regulation subject to the safeguards provided for in paragraphs 2 and 3. On the basis of this Regulation, only to the extent that it is necessary and proportionate for the purposes of the prevention of money laundering and terrorist financing, obliged entities may share this data with other obliged entities.