44 Amendments of Aurore LALUCQ related to 2021/0239(COD)
Amendment 162 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23a) The Union legislation does not currently include provisions that describe the systems and controls that financial institutions, payment service providers or crypto-asset service providers should have to have in place to comply with targeted financial sanctions obligations. Where the legislation provides for certain exemptions from customer due diligence measures or from the obligation to obtain information on the payer or the payee in the context of funds transfers, there may be an apparent conflict between risk- based exemptions and the absolute requirement to comply with applicable sanctions regimes, which is an obligation of result. According to the assessment conducted by the European Banking Authority, there are different interpretations across Member States on the obligations on payment service providers to screen the payer or the payee against sanctions lists, as each payment service provider is expected to screen only its customer in some Member States, whereas, in others, each payment service provider has to screen both the payer and the payee. This situation could create regulatory arbitrage and gaps which could weaken the Union targeted financial sanctions regime. It is therefore necessary to establish common standards on the measures that financial institutions, payment service providers or crypto-asset service providers should take to comply with their financial sanctions obligations and clarify how they should comply with their obligations under the Union targeted financial sanctions regime, in particular in situations where certain exemptions from customer due measures and from the obligation to obtain information on the payer or the payee or on the originator or the beneficiary in the context of transfers of funds or crypto-assets are applied, as well as in situations where it may not be possible to identity with sufficient certainty the customer or beneficial owner, in particular when a transaction or a transfer involves an unhosted wallet or an unregulated entity.
Amendment 166 #
Proposal for a regulation
Recital 24 a (new)
Recital 24 a (new)
(24a) Designations made by the United Nations Security Council which impose restrictive measures in response to a threat are not immediately enforceable by the Union. Those UN sanctions become eventually applicable in the Union not immediately, but following a due process leading to the adoption of Union measures imposing targeted financial sanctions against designated persons. During the period where the information on sanctioned persons becomes public, and the actual application of EU targeted financial sanctions, there is a risk of asset flight. For this reason, some Member States decided at national level that UN designations become immediately applicable until the adoption of similar measures by the Union while other Member States may rely on preventative measures. However, there are no common rules at Union level and fragmented measures at national level. Hence, it is necessary to ensure appropriate common mitigating measures when no appropriate measures are in place at national level in order to manage the money laundering and terrorist financing risks identified following a UN designation. UN designations are made following a threat to international peace that can emanate from terrorist activities, violation of human rights and other predicate offences. Obliged entities should consider the enhanced risks of money laundering and terrorist financing posed by persons designated by the UN pending the review of this information of the Union, or before the actual entering into force of Union targeted financial sanctions. During this period time, obliged entities should report to the competent FIU any business relationship or transaction with persons considering the suspicion of money laundering, terrorist financing or predicate offence emanating from the UN listing. The FIU should decide to suspend any transaction, withhold its consent, or suspend any account until the review of the information and the adoption, or not, of targeted financial sanctions by the Union. Such measure is without prejudice of the possibility of Member States to apply temporary measures which ensure a higher level of protection of the financial system of the Union such as temporary measures applying directly UN designations pending the adoption of measures by the Union.
Amendment 219 #
Proposal for a regulation
Recital 65
Recital 65
(65) Detailed rules should be laid down to identify the beneficial owners of corporate and other legal entities and to harmonise definitions of beneficial ownership. While a specified percentage shareholding or ownership interest does not automatically determine the beneficial owners, it should be one factor among others to be taken into account. Member States should be able, however, to decide that a percentage lower than 25% may be an indication of ownership or control. Control through ownership interest of 25% plusat least one of the shares or voting rights or other ownership interest should be assessed on every level of ownership, meaning that this threshold should apply to every link in the ownership structure and that every link in the ownership structure and the combination of them should be properly examined.
Amendment 260 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 – point a
Article 2 – paragraph 1 – point 6 – point a
(a) an undertaking other than a credit institution or an investment firm, which carries out one or more of the activities listed in points (2) to (12), (14) and (15) of Annex I to Directive 2013/36/EU of the European Parliament and of the Council43 , including the activities of currency exchange offices (bureaux de change), or theand creditors as defined in Article 4 proint (2) of Directive 2014/17/EU of the European Parliament and of the Council, and in Article 3, point (b) of Directive 2008/48/EC of the European Parliament and of the Council, or an undertaking whose the principal activity of which is to acquire holdings, including a financial holding company and a mixed financial holding company; _________________ 43 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
Amendment 262 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 – point a a (new)
Article 2 – paragraph 1 – point 6 – point a a (new)
(aa) a central securities depository as defined in Article 2 point (1) of Regulation 909/2014/EU of the European Parliament and of the Council;
Amendment 263 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 – point a b (new)
Article 2 – paragraph 1 – point 6 – point a b (new)
(ab) an account information service provider as defined in Article 4 point (19) of Directive (EU) 2015/2366 of the European Parliament and of the Council;
Amendment 281 #
Proposal for a regulation
Article 2 – paragraph 1 – point 22
Article 2 – paragraph 1 – point 22
(22) ‘beneficial owner’ means any natural person who ultimately owns or, controls or benefits from a legal entity or an express trust or similar legal arrangement, or an organisation that has legal capacity under national law, as well as any natural person on whose behalf or for the benefit of whom a transaction or activity or business relationship is being conducted;
Amendment 285 #
Proposal for a regulation
Article 2 – paragraph 1 – point 24
Article 2 – paragraph 1 – point 24
(24) ‘formal nominee arrangement’ means a contract or a formal arrangement with an equivalent legal value to a contract,n equivalent arrangement between thea nominee and the nominator, where the nominator is a legal entity or natural person that issues instructions to a nominee to act on their behalf in a certain capacity, including as a director or shareholder, and the nominee is a legal entity or natural person instructed by the nominator to act on their behalf;
Amendment 307 #
Proposal for a regulation
Article 2 – paragraph 1 – point 27 a (new)
Article 2 – paragraph 1 – point 27 a (new)
(27a) ‘high-net-worth customer means a customer whose business relationship with the obliged entity is worth at least EUR 1 million or the equivalent in national currency in liquid financial assets;
Amendment 311 #
Proposal for a regulation
Article 2 – paragraph 1 – point 29 a (new)
Article 2 – paragraph 1 – point 29 a (new)
Amendment 334 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point b – point i
Article 3 – paragraph 1 – point 3 – point b – point i
(i) buying and selling of real or virtual property or business entities;
Amendment 403 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. By [2 years after the entry into force of this Regulation], AMLA shall issue guidelines on the elements that obliged entities should take into account when deciding on the extent of their internal policies, controls and procedures, after consulting the European Banking Authority, shall develop draft regulatory technical standards and submit them to the Commission for adoption. Those draft regulatory technical standards shall specify the elements that obliged entities should take into account when deciding on the extent of their internal policies, controls and procedures based on their assessed level of risk. They shall also include guidance on how to determine the number of staff to be entrusted with compliance functions as set out in Article 9, taking into account the nature and size of obliged entities and the inherent risks of the sector in which they operate.
Amendment 406 #
Proposal for a regulation
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4a. The Commission is empowered to supplement this Regulation by adopting the regulatory technical standards referred to in paragraph 4 of this Article in accordance with Articles 38 to 41 of Regulation [please insert reference – proposal for establishment of an Anti- Money Laundering Authority - COM/2021/421 final].
Amendment 450 #
1. A parent undertaking shall ensure that the requirements on internal procedures, risk assessment and staff referred to in Section 1 of this Chapter apply in all branches and subsidiaries of the group in the Member States and, for groups whose parent undertaking is established in the Union in third countries. The group-wide policies, controls and procedures shall also include data protection policies and policies, controls and procedures for sharing information within the group for AML/CFT purposes. To this end, a parent undertaking shall perform a group-wide risk assessment, taking into account the risks identified by all branches and subsidiaries of the group, and use it to establish and implement group-wide policies, controls and procedures. The group-wide policies, controls and procedures shall also include data protection policies and policies, controls and procedures for sharing information within the group for AML/CFT purposes. Obliged entities that are part of a group shall implement the aforementioned group-wide policies, controls and procedures, taking into account their specificities and risks to which they are exposed.
Amendment 451 #
Proposal for a regulation
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. The policies, controls and procedures pertaining to the sharing of information referred to in paragraph 1 shall require obliged entities within the group to exchange information when such sharing is relevant for preventing money laundering and terrorist financing, including customer due diligence and risk management. The sharing of information within the group shall cover in particular the identity and characteristics of the customer, its beneficial owners or the person on behalf of whom the customer acts, the nature and purpose of the business relationship and of the transactions, as well as, where applicable, the analysis of atypical transactions and the suspicions that funds are the proceeds of criminal activity or are related to terrorist financing reported to FIU pursuant to Article 50, unless otherwise instructed by the FIU. The group-wide policies, procedures and controls shall require that entities within a group which are not obliged entities according to Article 3 of this Regulation to provide relevant information to obliged entities within the same group for them to comply with requirements set out in this Regulation.
Amendment 452 #
Proposal for a regulation
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
Groups shall put in place group-wide policies, controls and procedures to ensure that the information exchanged pursuant to the first and second subparagraph is subject to sufficient guarantees in terms of confidentiality, data protection and use of the information, including to prevent its disclosure.
Amendment 455 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Where branches or subsidiaries of obliged entities are located in third countries where the minimum AML/CFT requirements are less strict than those set out in this Regulation, the obliged entity concernedparent undertaking shall ensure that those branches or subsidiaries comply with the requirements laid down in this Regulation, including requirements concerning data protection, or equivalent.
Amendment 456 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Where the law of a third country does not permit compliance with the requirements laid down in this Regulation, obliged entitiesthe parent undertaking shall take additional measures to ensure that branches and subsidiaries in that third country effectively handle the risk of money laundering or terrorist financing, and the head office shall inform the supervisors of their home Member State of those additional measures. Where the supervisors of the home Member State consider that the additional measures are not sufficient, they shall exercise additional supervisory actions, including requiring the group not to establish any business relationship, to terminate existing ones or not to undertake transactions, or to close down its operations in the third country.
Amendment 472 #
Proposal for a regulation
Article 15 – paragraph 5 – point b a (new)
Article 15 – paragraph 5 – point b a (new)
(ba) the criteria to be taken into account for identifying occasional transactions, including those involving crypto-assets;
Amendment 473 #
Proposal for a regulation
Article 15 – paragraph 5 – point b b (new)
Article 15 – paragraph 5 – point b b (new)
(bb) the criteria to be taken into account to identify business relationships;
Amendment 484 #
Proposal for a regulation
Article 16 – paragraph 1 – point c a (new)
Article 16 – paragraph 1 – point c a (new)
(ca) obtain and assess information on whether the customer or the beneficial owner is persons involved are subjected to targeted financial sanctions relating to terrorism and terrorism financing, proliferation financing and to other applicable Union targeted financial sanctions;
Amendment 490 #
Proposal for a regulation
Article 16 – paragraph 2 a (new)
Article 16 – paragraph 2 a (new)
2a. Without prejudice to any other measures required to comply with the obligation to apply targeted financial sanctions, credit and financial institutions and crypto-asset service providers shall screen the customer’s identity as well as the beneficial owner’s identity against the relevant sanctions lists of designated persons in order to verify that the customer is not a designated individual, entity or group subject to targeted financial sanctions.
Amendment 494 #
Proposal for a regulation
Article 16 – paragraph 3 a (new)
Article 16 – paragraph 3 a (new)
3a. AMLA shall issue guidelines on the measures to be applied by obliged entities for assessing whether the customer or the beneficial owner is subject to targeted financial sanction, including how to identify entities controlled by persons subject to targeted financial sanctions.
Amendment 566 #
Proposal for a regulation
Article 21 a (new)
Article 21 a (new)
Amendment 703 #
Proposal for a regulation
Article 35 – paragraph 2
Article 35 – paragraph 2
2. Obliged entities shall apply one or more of the measures referred to in Article 28(4) on a risk-sensitive basis to mitigate the risks posed by the business relationship, until such time as that person is deemed to pose no further higher risk, but in any case for not less than 124 months following the time when the individual is no longer entrusted with a prominent public function.
Amendment 704 #
Proposal for a regulation
Article 36 a (new)
Article 36 a (new)
Article 36a Persons subject to restrictive measures by international organisations 1. Obliged entities shall report to the competent FIU any business relationship or transaction with persons subject to UN sanctions in the temporary period between the moment the UN designation is made publicly available and the moment targeted financial sanctions adopted by the Union become applicable. Obliged entities shall refrain from carrying out any transaction related to a person subject to UN sanctions until they have notified the competent FIU and have complied with any further specific instruction from the FIU. 2. When the competent FIU receives such a notification referred to in Paragraph 1, it shall decide to suspend any transaction, withhold its consent or suspend any account up to 10 calendar days or until the adoption of targeted financial sanctions by the Union. 3. This Article is without prejudice to the possibility of Member States to apply temporary measures which ensure a higher level of protection of the financial system of the Union such as temporary measures applying directly UN designations pending the adoption of EU targeted financial sanctions.
Amendment 705 #
Proposal for a regulation
Article 36 a (new)
Article 36 a (new)
Amendment 707 #
Proposal for a regulation
Article 37 a (new)
Article 37 a (new)
Amendment 745 #
Proposal for a regulation
Article 42 – paragraph 1 – introductory part
Article 42 – paragraph 1 – introductory part
1. In case of corporate entitiesand other legal entities regardless of form or structure, the beneficial owner(s) as defined in Article 2(22) shall be the natural person(s) who owns, control(s), directly or indirectly, or benefits from, the corporate entity, either through an ownership interest or through control via other means.
Amendment 746 #
Proposal for a regulation
Article 42 – paragraph 1 – introductory part
Article 42 – paragraph 1 – introductory part
1. In case of corporate entitiesand other legal entities regardless of form or structure, the beneficial owner(s) as defined in Article 2(22) shall be the natural person(s) who owns, control(s), directly or indirectly, or benefits from, the corporate entity, either through an ownership interest or through control via other means.
Amendment 752 #
Proposal for a regulation
Article 42 – paragraph 1 – subparagraph 1
Article 42 – paragraph 1 – subparagraph 1
For the purpose of this Article, ‘control through an ownership interest’ shall mean an ownership of 25% plus one of that least one shares or voting rights or other ownership interest in the corporate entity, including through bearer shareholdings or being party to a contract or financial instrument related to the shares, votes, assets or income of the corporate or legal entity, on every level of ownership.
Amendment 769 #
Proposal for a regulation
Article 42 – paragraph 1 – subparagraph 2 – point a
Article 42 – paragraph 1 – subparagraph 2 – point a
(a) the right to appoint or remove more than half of theany members of the board or similar officers of the corporate entity;
Amendment 774 #
Proposal for a regulation
Article 42 – paragraph 1 – subparagraph 2 – point d a (new)
Article 42 – paragraph 1 – subparagraph 2 – point d a (new)
(da) power of attorney to manage or dispose of the entity’s assets or income, in particular bank or securities accounts;
Amendment 780 #
Proposal for a regulation
Article 42 – paragraph 3
Article 42 – paragraph 3
3. Member States shall notify to the Commission by [3 months from the date of application of this Regulation] a list of the types of corporate and other legal entities existing under their national laws with beneficial owner(s) identified in accordance with paragraph 1. The notification shall include the specific categories of entities, description of characteristics, names and, where applicable, legal basis under the national laws of the Member States. It shall also include an indication of whether, due to the specific form and structures of legal entities other than corporate entities, the mechanism under Article 45(3) applies, accompanied by a detailed justification of the reasons for that. In this notification, Member States shall also include other legal entities or vehicles which, under national law, identification of beneficial ownership information is not deemed applicable, in particular if that is the case for investment vehicles such as special purpose vehicles or entities, protected cell companies or series limited liability companies.
Amendment 786 #
Proposal for a regulation
Article 42 – paragraph 4
Article 42 – paragraph 4
4. The Commission shall make recommendations to Member States on the specific rules and criteria to identitfy the beneficial owner(s) of legal entities other than corporate entities by [1 year from the date of application of this Regulation] and indicate whether, on a risk sensitive basis, any specific rules should apply. These recommendations shall be public. 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 791 #
Proposal for a regulation
Article 42 – paragraph 5 – point a
Article 42 – paragraph 5 – point a
(a) companies listed on a regulated market that is subject to disclosure requirements consistent with Union legislation or subject to equivalent international standards, provided that beneficial ownership information is gathered and available in equivalent terms as those set out in this Chapter; and
Amendment 797 #
Proposal for a regulation
Article 43 – paragraph 1 – point a
Article 43 – paragraph 1 – point a
(a) the economic and legal settlor(s);
Amendment 800 #
Proposal for a regulation
Article 43 – paragraph 2 – subparagraph 1
Article 43 – paragraph 2 – subparagraph 1
Member States shall notify to the Commission by [3 months from the date of application of this Regulation] a list of legal arrangements and of legal entities, similar to express trusts, where the beneficial owner(s) is identified in accordance with paragraph 1. In the case where the parties of the express trust laid down in paragraph 1 point (a), (b), (c), or (d) are corporate or legal entities or arrangements themselves, the beneficial owner shall be the natural person who is the beneficial owner of those entities or arrangements, or the ultimate natural person who exercises control through a chain of control or ownership of corporate or legal entities or arrangements.
Amendment 829 #
Proposal for a regulation
Article 46 – paragraph 4 a (new)
Article 46 – paragraph 4 a (new)
4a. Where the trustee or person holding an equivalent position in a similar legal arrangement is not established or resides in the Union, beneficial ownership information shall be obtained and held in the conditions laid down in paragraph 1 by either the settlor or the beneficiary, provided that: 1) the express trust or legal arrangement is governed under the law of one Member State; or 2) either the settlor or the beneficiary are residents in one Member State.
Amendment 835 #
(ba) (c ) own or acquire a majority or minority stake in bodies governed by public law, as defined under Article 2(1), point (4) of Directive 2014/24/EU of the European Parliament and of the Council.
Amendment 836 #
Proposal for a regulation
Article 48 – paragraph 1 – point b b (new)
Article 48 – paragraph 1 – point b b (new)
(bb) (d) benefit from public funds through public procurement procedures or contracts, governed either under EU law or national law.
Amendment 841 #
Proposal for a regulation
Article 49 – paragraph 2 a (new)
Article 49 – paragraph 2 a (new)
By [2 years after the date of entry into force of this Directive], AMLA shall develop draft regulatory technical standards and submit them to the Commission for adoption. Those draft regulatory technical standards shall define indicators to classify the level of gravity of infringements and criteria to be taken into account when setting the level of administrative sanctions, including ranges of pecuniary sanctions relative to the turnover of the entity that shall be applied as references for effective, proportionate and dissuasive sanctions. The Commission is empowered to supplement this Regulation by adopting the regulatory technical standards referred to in paragraph 1a of this Article in accordance with Articles 38 to 41 of Regulation [please insert reference – proposal for establishment of an Anti- Money Laundering Authority - COM/2021/421 final].
Amendment 929 #
Proposal for a regulation
Article 59 – paragraph 1
Article 59 – paragraph 1
1. Persons trading in goods or providing services may accept or make a payment in cash only up to an amount of EUR 102 000 or equivalent amount in national or foreign currency, whether the transaction is carried out in a single operation or in several operations which appear to be linked.
Amendment 941 #
Proposal for a regulation
Article 59 a (new)
Article 59 a (new)