Activities of Clare DALY related to 2021/0241(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on information accompanying transfers of funds and certain crypto-assets (recast)
Amendments (47)
Amendment 100 #
Proposal for a regulation
Recital 17
Recital 17
(17) This Regulation should also apply without prejudice toProcessing of personal data under this Regulation should take place in full compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council46 . Further processing of personal data for commercial purposes should be strictly prohibited. The fight against money laundering and terrorist financing is recognised as an important public interest ground by all Member States. In applying this Regulation, the transfer of personal data to a third country must be carried out in accordance with Chapter V of Regulation (EU) 2016/679 . It is important that payment service providers and crypto-asset service providers operating in multiple jurisdictions with branches or subsidiaries located outside the Union should not be prevented from transferring data about suspicious transactions within the same organisation, provided that they apply adequate safeguards. In addition, the crypto-asset service providers of the originator and the beneficiary, the payment service providers of the payer and of the payee and the intermediary payment service providers should have in place appropriate technical and organisational measures to protect personal data against accidental loss, alteration, or unauthorised disclosure or access. __________________ 46 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
Amendment 104 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to reflect the special characteristics of national payment and crypto-asset transfer systems, and provided that it is always possible to trace the transfer of funds back to the payer or the transfer of crypto-assets back to the beneficiary , Member States should be able to exempt from the scope of this Regulation certain domestic low-value transfers of funds, including electronic giro payments, or low-value transfers of crypto-assets, used for the purchase of goods or services.
Amendment 108 #
Proposal for a regulation
Recital 22
Recital 22
(22) In order not to impair the efficiency of payment systems and crypto-asset transfer services , and in order to balance the risk of driving transactions underground as a result of overly strict identification requirements against the potential terrorist threat posed by small transfers of funds or crypto-assets , the obligation to check whether information on the payer or the payee , or, for transfers of crypto-assets, the originator and the beneficiary, is accurate should, in the case of transfers of funds where verification has not yet taken place, be imposed only in respect of individual transfers of funds or crypto-assets that exceed EUR 1000, unless the transfer appears to be linked to other transfers of funds or transfers of crypto-assets which together would exceed EUR 1000, the funds or crypto-assets have been received or paid out in cash or in anonymous electronic money, or where there are reasonable grounds for suspecting money laundering or terrorist financing.
Amendment 119 #
Proposal for a regulation
Recital 27 a (new)
Recital 27 a (new)
(27a) In the case of a transfer of crypto- assets from or to a distributed ledger address not linked to a crypto-asset service provider, known as an 'unhosted wallet', the crypto-asset service provider or other obliged entity should obtain and retain the required originator and beneficiary information from their customer, whether originator or beneficiary, or, wherever possible and appropriate, from the agent behind the unhosted wallet. The crypto-asset service provider should verify the accuracy of the information with respect to its own customer. In addition, in case of a transfer from or to an unhosted wallet, crypto-asset service providers should also verify the accuracy of information with respect to the external originator or beneficiary behind the unhosted wallet. An exception regarding the obtainment, verification or retention of information with respect to the external agents behind unhosted wallets cannot be provided, as such exception would favour these distributed ledger addresses that are not linked to an obliged entity, undermining the possibilities to detect and report suspicious transactions. However, in order to provide for a period of adjustment, the provisions regarding the obligation to verify information with respect to the agents behind unhosted wallets should come into effect three years after this Regulation enters into force.
Amendment 120 #
Proposal for a regulation
Recital 27 b (new)
Recital 27 b (new)
(27b) The European Banking Authority in cooperation with the European Securities and Markets Authority should provide guidelines for crypto-asset service providers on the obtainment, verification and retention of the required originator or beneficiary information with respect to unhosted wallets taking into account and supporting the development of technological solutions.
Amendment 126 #
Proposal for a regulation
Recital 33
Recital 33
(33) As regards transfers of crypto- assets, the crypto-asset service provider of the beneficiary should implement effective procedures to detect whether the information on the originator or the beneficiary is missing or incomplete. These procedures should include, where appropriate, monitoring after or during the transfers, in order to detect whether the required information on the originator or the beneficiary is missing. It should not be required that the information is attached directly to the transfer of crypto-assets itself, as long as it is submitted immediately and securely, and available upon request to appropriate authorities.
Amendment 135 #
Proposal for a regulation
Recital 40
Recital 40
(40) As it may not be possible in criminal investigations to identify the data required or the individuals involved in a transaction until many months, or even years, after the original transfer of funds or transfer of crypto-assets , and in order to be able to have access to essential evidence in the context of investigations, it is appropriate to require payment service providers or crypto-asset service providers to keep records of information on the payer and the payee or the originator and the beneficiary for a period of time for the purposes of preventing, detecting and investigating money laundering and terrorist financing. That period should be limited to five years, after which all personal data should be deleted unless national law provides otherwise. If necessary for the purposes of preventing, detecting or investigating money laundering or terrorist financing, after carrying out an assessment of the necessity and proportionality of the measure, Member States should be able to allow or require retention of records for a further period of no more than five years, without prejudice to national criminal law on evidence applicable to ongoing criminal investigations and legal proceedings.
Amendment 137 #
Proposal for a regulation
Recital 41
Recital 41
(41) In order to improve compliance with this Regulation, and in accordance with the Commission Communication of 9 December 2010 entitled ‘Reinforcing sanctioning regimes in the financial services sector’, the power to adopt supervisory measures and the sanctioning powers of competent authorities should be enhanced. Member States should ensure that competent authorities have appropriate resources to effectively fulfil their tasks. Administrative sanctions and measures should be provided for and, given the importance of the fight against money laundering and terrorist financing, Member States should lay down sanctions and measures that are effective, proportionate and dissuasive. Member States should notify the Commission and the Joint Committee of EBA, EIOPA and ESMA (the ‘ESAs’) thereof.
Amendment 146 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. This Regulation shall also apply to transfers of crypto-assets executed by means of kiosks connected to a distributed ledger network known as crypto-asset automated teller machines (“crypto- ATMs”).
Amendment 150 #
Proposal for a regulation
Article 2 – paragraph 3 – subparagraph 2
Article 2 – paragraph 3 – subparagraph 2
However, this Regulation shall apply for any transfer effectuated with a crypto- asset debit card, including to pay for goods or services, and when a payment card, an electronic money instrument or a mobile phone, or any other digital or IT prepaid or postpaid device with similar characteristics, is used in order to effect a person-to-person transfer of funds or crypto-assets .
Amendment 152 #
Proposal for a regulation
Article 2 – paragraph 4 – subparagraph 2 – point b
Article 2 – paragraph 4 – subparagraph 2 – point b
(b) they constitute transfers of funds or crypto-assets to a public authority as payment for taxes, fines or other levies within a Member State;
Amendment 158 #
Proposal for a regulation
Article 2 – paragraph 5 – introductory part
Article 2 – paragraph 5 – introductory part
5. A Member State may decide not to apply this Regulation to transfers of funds or transfers of crypto-assets within its territory to a payee's payment account or a beneficiary’s account permitting payment exclusively for the provision of goods or services where all of the following conditions are met:
Amendment 161 #
Proposal for a regulation
Article 2 – paragraph 5 – point a
Article 2 – paragraph 5 – point a
(a) the payment service provider or the crypto-asset service provider of the payee or the beneficiaryf the payee is subject to [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849];
Amendment 164 #
Proposal for a regulation
Article 2 – paragraph 5 – point b
Article 2 – paragraph 5 – point b
(b) the payment service provider of the payee or the crypto-asset service provider of the beneficiary is able to trace back, through the payee, by means of a unique transaction identifier, the transfer of funds or, for transfers of crypto-assets, through the beneficiary, by means allowing to identify individually the transfers of crypto-assets on the distributed ledger, from the person who has an agreement with the payee or the beneficiary for the provision of goods or services;
Amendment 170 #
Proposal for a regulation
Article 2 – paragraph 5 – point c
Article 2 – paragraph 5 – point c
(c) the amount of the transfer of funds or crypto-assets does not exceed EUR 1000.
Amendment 176 #
Proposal for a regulation
Article 3 – paragraph 1 – point 10
Article 3 – paragraph 1 – point 10
(10) ‘transfer of crypto-assets’ means any transaction at least partially carried out by electronic means on behalf of an originator through a crypto-asset service provider, with a view to making crypto- assets available to a beneficiary through a crypto-asset service providerwith the aim to moving crypto-assets from one distributed ledger address or crypto-asset account to another, carried out or received by at least one crypto-asset service provider acting on behalf of either an originator or a beneficiary, irrespective of whether the originator and the beneficiary are the same person and irrespective of whether the crypto-asset service provider of the originator and that of the beneficiary are one and the same.
Amendment 182 #
Proposal for a regulation
Article 3 – paragraph 1 – point 17 a (new)
Article 3 – paragraph 1 – point 17 a (new)
(17a) ‘unhosted wallet‘ means a distributed ledger address that is not linked to a crypto-asset services provider;
Amendment 214 #
Proposal for a regulation
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
1. The crypto-asset service provider or other obliged entity of the originator shall ensure that transfers of crypto-assets are accompanied by the following information on the originator:
Amendment 217 #
Proposal for a regulation
Article 14 – paragraph 1 – point b
Article 14 – paragraph 1 – point b
(b) the originator’s wallet address, where available, and the crypto-asset account number of the originator, where an account is used to process the transaction;
Amendment 225 #
Proposal for a regulation
Article 14 – paragraph 2 – introductory part
Article 14 – paragraph 2 – introductory part
2. The crypto-asset service provider or other obliged entity of the originator shall ensure that transfers of crypto-assets are accompanied by the following information on the beneficiary:
Amendment 227 #
Proposal for a regulation
Article 14 – paragraph 2 – point b
Article 14 – paragraph 2 – point b
(b) the beneficiary’s account number's wallet address, where available, and the crypto-asset account number of the beneficiary, where such an account exists and is used to process the transaction.
Amendment 233 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
3. By way of derogation from paragraph 1, point (b), and paragraph 2, point (b), in the case of a transfer not made from or to an account, the crypto-asset service provider of the originator shall ensure that the transfer of crypto-assets can be individually identified and record the originator and beneficiary address identifiers on the distributed ledger.
Amendment 236 #
Proposal for a regulation
Article 14 – paragraph 4
Article 14 – paragraph 4
4. The information referred to in paragraphs 1 and 2 does not have toshall accompany a transfer of funds in a way that allows for the full application of Regulation 2016/679, as appropriate, including rules on rectification of data or deletion of data once retention periods have expired. Where the crypto-asset service provider of the beneficiary is a regulated entity established within the Union, or where the crypto-asset service provider of the beneficiary is established in a third country that is subject to an adequacy decision in accordance with Article 45 of Regulation 2016/679, the information referred to in paragraphs 1 and 2 shall be transferred in a secure manner and immediately with the transfer of crypto- assets. In all other cases, the crypto-asset service provider of the originator shall proceed with the execution of the transfer without transmitting the information referred to in paragraph 1 and 2. Such information shall however be retained and made available to competent authorities upon request. The information referred to in paragraph 1, points (a) and (c), and paragraph 2, point (a), shall not be attached directly to, or be included in, the transfer of crypto- assets.
Amendment 239 #
Proposal for a regulation
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. In the case of a transfer of crypto- assets to an unhosted wallet, the crypto- asset service provider of the originator or other obliged entity shall obtain and retain the information referred to in paragraphs 1 and 2 from its customer or, if possible, in case of the information referred to in paragraph 2, from the beneficiary behind the unhosted wallet and make such information available to competent authorities upon request.
Amendment 242 #
Proposal for a regulation
Article 14 – paragraph 5 a (new)
Article 14 – paragraph 5 a (new)
5a. In case of a transfer of crypto- assets to an unhosted wallet, the crypto- asset service provider of the originator or other obliged entity shall, in addition to the provisions laid out in paragraph 5, verify the accuracy of the information referred to in paragraph 2 on the basis of documents, data or information obtained from a reliable and independent source, before transferring crypto-assets.
Amendment 243 #
Proposal for a regulation
Article 14 – paragraph 6 – point a
Article 14 – paragraph 6 – point a
(a) the identity of the originator has been verified in accordance with Article 16, 18(3) and 37 of Regulation [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing3 of Directive (EU) 2015/849] [ and the information obtained pursuant to that verification has been stored in accordance with Article 5640 of Regulation [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849]that Directive or
Amendment 245 #
Proposal for a regulation
Article 14 – paragraph 6 – point b
Article 14 – paragraph 6 – point b
(b) Article 21(2) and (3) of Regulation [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing14(5) of Directive (EU) 2015/849] applies to the originator.
Amendment 247 #
Proposal for a regulation
Article 14 – paragraph 6 a (new)
Article 14 – paragraph 6 a (new)
6a. Verification as referred to in paragraph 5a shall be deemed to have taken place where: (a) the identity of the crypto-assets transfer beneficiary has been verified, as for a customer relationship, in accordance with Article 13 of Directive(EU) 2015/849 and the information obtained pursuant to that verification has been stored in accordance with Article 40 of that Directive; (b) Article 14(5) of Directive (EU) 2015/849 applies to the crypto-assets transfer beneficiary.
Amendment 249 #
Proposal for a regulation
Article 14 – paragraph 6 b (new)
Article 14 – paragraph 6 b (new)
6 b. The provisions laid out in paragraph 5a and 6a shall come into effect three years after this Regulation has entered into force. The European Banking Authority in cooperation with the European Securities and Markets Authority shall provide guidelines for crypto-asset service providers on the obtainment, verification and retention of information referred to in paragraph 4a, 5a and 6a for the case of a transfer of crypto-assets to an unhosted wallet.
Amendment 253 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. In the case of a batch file transfer from a single originator, Article 14(1) shall not apply to the individual transfers bundled together therein, provided that the batch file contains the information referred to in Article 14(1), (2) and (3), that that information has been verified in accordance with Article 14(5), (5a), (6), (6a) and (6b), and that the individual transfers carry the payment account numberare accompanied by the wallet address, where available and the crypto- asset account number, where an account is used to process the transaction, of the originator or, where Article 14(3) applies the individual identification of the transfer.
Amendment 256 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
Amendment 262 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. The crypto-asset service provider of the beneficiary shall implement effective procedures, including, where appropriate, monitoring after or during the transfers, in order to detect whether the information referred to in Article 14(1) and (2), on the originator or the beneficiary is included in, or follows,submitted with the transfer of crypto-assets or batch file transfer.
Amendment 263 #
Proposal for a regulation
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
1a. In the case of a transfer of crypto- assets from an unhosted wallet, the crypto-asset service provider or other obliged entity of the beneficiary shall obtain and retain the information referred to in Article 14 paragraphs (1) and (2) from its customer or, if possible, in case of the information referred to in Article 14 paragraph (1), from the originator behind the unhosted wallet and make such information available to competent authorities upon request.
Amendment 267 #
Proposal for a regulation
Article 16 – paragraph 2
Article 16 – paragraph 2
2. In the case of transfers of crypto- assets exceeding EUR 1 000, whether those transfers are carried out in a single transaction or in several transactions which appear to be linked, bBefore making the crypto-assets available to the beneficiary, the crypto- asset service provider of the beneficiary shall verify the accuracy of the information on the beneficiary referred to in paragraph 1 on the basis of documents, data or information obtained from a reliable and independent source, without prejudice to the requirements laid down in Articles 83 and 84 of Directive (EU) 2015/2366.
Amendment 271 #
Proposal for a regulation
Article 16 – paragraph 2 a (new)
Article 16 – paragraph 2 a (new)
2a. In case of a transfer of crypto- assets from an unhosted wallet, the crypto-asset service provider or other obliged entity of the beneficiary shall, in addition to the provisions laid out in paragraph 2, verify the accuracy of the information on the originator referred to in Article 14 paragraph 1 on the basis of documents, data or information obtained from a reliable and independent source, before making the crypto-assets available to the beneficiary, without prejudice to the requirements laid down in Articles 83 and 84 of Directive (EU) 2015/2366.
Amendment 274 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
Amendment 279 #
Proposal for a regulation
Article 16 – paragraph 4 – introductory part
Article 16 – paragraph 4 – introductory part
4. Verification as referred to in paragraphs 2 and 3 shall be deemed to have taken place where one of the following applies:
Amendment 280 #
Proposal for a regulation
Article 16 – paragraph 4 – point a
Article 16 – paragraph 4 – point a
(a) the identity of the crypto-assets transfer beneficiary has been verified in accordance with [replace with right reference in AMLR to replace Articles 16, 18(3) and 37 of Regulation [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing3 of Directive (EU) 2015/849] and the information obtained pursuant to that verification has been stored in accordance with Article 56 of Regulation [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849]40 of that Directive;
Amendment 282 #
Proposal for a regulation
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) Article 21(2) and (3) of Regulation [please insert reference – proposal for a regulation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing14(5) of Directive (EU) 2015/849] applies to the crypto-assets transfer beneficiary.
Amendment 284 #
Proposal for a regulation
Article 16 – paragraph 4 a (new)
Article 16 – paragraph 4 a (new)
4a. Verification as referred to in paragraph 2a shall be deemed to have taken place where: (a) the identity of the originator has been verified, as for a customer relationship, in accordance with Article 13 of Directive (EU) 2015/849 and the information obtained pursuant to that verification has been stored in accordance with Article 40 of that Directive, or (b) Article 14(5)of Directive (EU) 2015/849 applies to the originator.
Amendment 286 #
Proposal for a regulation
Article 16 – paragraph 4 b (new)
Article 16 – paragraph 4 b (new)
4 b. The provisions laid out in paragraph 2a and 4a shall come into effect three years after this Regulation has entered into force. The European Banking Authority in cooperation with the European Securities and Markets Authority shall provide guidelines for crypto-asset service providers on the obtainment, verification and retention of information referred to in paragraph 1a, 2a and 4a for the case of a transfer of crypto-assets from an unhosted wallet.
Amendment 291 #
Proposal for a regulation
Article 17 – paragraph 1 – subparagraph 2
Article 17 – paragraph 1 – subparagraph 2
Where the crypto-asset service provider of the beneficiary becomes aware, when receiving transfers of crypto-assets, that the information referred to in Article 14(1) or (2) or Article 15 is missing or incomplete, the crypto-asset service provider shall reject the transfer or ask for the required information on the originator and the beneficiary before or after making the crypto- assets available to the beneficiary, on a risk-sensitive basis.
Amendment 294 #
Proposal for a regulation
Article 17 – paragraph 2 – subparagraph 1
Article 17 – paragraph 2 – subparagraph 1
Where a crypto-asset service provider repeatedly fails to provide the required information on the originator or the beneficiary, the crypto- asset service provider of the beneficiary shall take steps, which may initially include the issuing of warnings and setting of deadlines, and return the transferred crypto-assets to the originator’s account or address. Alternatively, the crypto-asset service provider of the beneficiary may hold the transferred crypto-assets without making them available to the beneficiary, pending review by the competent authority responsible for monitoring compliance with anti-money laundering and counter terrorist financing provisions.
Amendment 297 #
Proposal for a regulation
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. Where a crypto-asset service provider repeatedly or systematically fails to provide the required information pursuant to Articles 14 and 16, it shall no longer be authorized to operate in the EU and, in case of a third country, shall not make or receive any transfers to or from EU registered service providers.
Amendment 300 #
Proposal for a regulation
Article 18 a (new)
Article 18 a (new)
Amendment 311 #
Proposal for a regulation
Article 21 – paragraph 1 a (new)
Article 21 – paragraph 1 a (new)
1a. Where, on [the date of application of this Regulation], legal proceedings concerned with the prevention, detection, investigation or prosecution of suspected money laundering or terrorist financing are pending in a Member State, and an obliged entity holds information or documents relating to those pending proceedings, the obliged entity may retain that information or those documents, in accordance with national law, for a period of 5 years after the end of a business relationship from [the date of application of this Regulation]. Member States may, without prejudice to national criminal law on evidence applicable to ongoing criminal investigations and legal proceedings, allow or require the retention of such information or documents for a further period of 5 years after the end of a business relationship where the necessity and proportionality of such further retention have been established for the prevention, detection, investigation or prosecution of suspected money laundering or terrorist financing.
Amendment 316 #
Proposal for a regulation
Article 22 – paragraph 4
Article 22 – paragraph 4
4. In accordance with Article 39 of [please insert reference – proposal for a directive on the mechanisms to be put in place by the Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and repealing Directive (EU) 2015/849], competent authorities shall have appropriate resources and all the supervisory and investigatory powers that are necessary for the exercise of their functions. In the exercise of their powers to impose administrative sanctions and measures, competent authorities shall cooperate closely to ensure that those administrative sanctions or measures produce the desired results and coordinate their action when dealing with cross-border cases.