Activities of Franco ROBERTI related to 2021/0239(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing
Legal basis opinions (0)
Amendments (78)
Amendment 189 #
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 EU bodies also already involved in the EU AML/CFT framework and from 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 198 #
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 also already 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 202 #
Proposal for a regulation
Recital 54
Recital 54
(54) Potential external threats to the Union’s financial system do not only emanate from third countries, but can also emerge in relation to specific customer risk factors or products, services, transactions or delivery channels which are observed in relation to a specific geographical area outside the Union. There is therefore a need to identify money laundering and terrorist financing trends, risks and methods to which Union’s obliged entities may be exposed. AMLA is best placed to, with the support of other EU bodies also already involved in the AML/CFT framework, can detect any emerging ML/TF typologies from outside the Union, to monitor their evolution with a view to providing guidance to the Union’s obliged entities on the need to apply enhanced due diligence measures aimed at mitigating such risks.
Amendment 217 #
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% plus one10% 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 312 #
Proposal for a regulation
Article 2 – paragraph 1 – point 31 – point d
Article 2 – paragraph 1 – point 31 – point d
(d) a public authority with designated responsibilities for combating and preventing money laundering or terrorist financing;
Amendment 328 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point a
Article 3 – paragraph 1 – point 3 – point a
(a) auditors, external accountants, wealth or asset managers and tax advisors, and any other natural or legal person that undertakes to provide, directly or by means of other persons to which that other person is related, material aid, assistance or advice on tax, investment or personal finance matters as principal business or professional activity;
Amendment 331 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point b – introductory part
Article 3 – paragraph 1 – point 3 – point b – introductory part
(b) notaries, lawyers and other independent legal professionals, where they participate, whether by acting on behalf of and for their client in any financial or real estate transaction, or by assisting in the planning or carrying out of transactions for their client concerning any of the following:
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 339 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point d
Article 3 – paragraph 1 – point 3 – point d
(d) estate agents, including when acting as intermediaries in the letting of immovable property for transactions for which the monthly rent amounts to EUR 102 000 or more, or the equivalent in national currency;
Amendment 340 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point d
Article 3 – paragraph 1 – point 3 – point d
(d) estate agents, including when acting as intermediaries in the letting of immovable property for transactions for which the monthly rent amounts to EUR 102 000 or more, or the equivalent in national currency;
Amendment 345 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point e a (new)
Article 3 – paragraph 1 – point 3 – point e a (new)
(ea) persons trading in high value goods and services, including motor vehicles, aircrafts and watercrafts, vessels and aircrafts, where the value of the transaction or linked transactions amounts to at least EUR 2 000 or the equivalent in national currency;
Amendment 350 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point i
Article 3 – paragraph 1 – point 3 – point i
(i) persons trading or acting as intermediaries in the trade of works of art, including when this is carried out by art galleries and auction houses, where the value of the transaction or linked transactions amounts to at least EUR 102 000 or the equivalent in national currency;
Amendment 351 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point i
Article 3 – paragraph 1 – point 3 – point i
(i) persons trading or acting as intermediaries in the trade of works of art, including when this is carried out by art galleries and auction houses, where the value of the transaction or linked transactions amounts to at least EUR 102 000 or the equivalent in national currency;
Amendment 355 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point j
Article 3 – paragraph 1 – point 3 – point j
(j) persons storing, trading or acting as intermediaries in the trade of works of art when this is carried out within free zones and customs warehouses, where the value of the transaction or linked transactions amounts to at least EUR 102 000 or the equivalent in national currency;
Amendment 356 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 – point j
Article 3 – paragraph 1 – point 3 – point j
(j) persons storing, trading or acting as intermediaries in the trade of works of art when this is carried out within free zones and customs warehouses, where the value of the transaction or linked transactions amounts to at least EUR 102 000 or the equivalent in national currency;
Amendment 370 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 a (new)
Article 3 – paragraph 1 – point 3 a (new)
(3a) company owners of any kind with annual turnover of more than a billion euros and with offices in at least two European countries;
Amendment 390 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
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 491 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. By [2 years after the date of application of this Regulation], AMLA, , based also on consultations with EU bodies also already involved in the AML/CFT framework, shall issue guidelines on the risk variables and risk factors to be taken into account by obliged entities when entering into business relationships or carrying out occasional transactions.
Amendment 497 #
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 considershall filinge1a a suspicious transaction report to the FIU in relation to the customer in accordance with Article 50. _________________ 1a In this proposal, when an OE cannot determine the UBO, or identify the customer’s identity, or obtain information on the purpose and intended nature of the business relationship or if they cannot ensure that ensure that the transactions conducted are consistent with the obliged entity's knowledge of the customer, the business and risk profile, including where necessary the source of funds… no systematic STR is filed. The OE can only “consider” filing it. This is not enough in Europol’s view.
Amendment 530 #
Proposal for a regulation
Article 18 – paragraph 4 – point b
Article 18 – paragraph 4 – point b
(b) the use of electronic identification means and relevant trust services as set out in Regulation (EU) 910/2014 with at least the assurance level "high".
Amendment 532 #
Proposal for a regulation
Article 18 – paragraph 4 – subparagraph 1
Article 18 – paragraph 4 – subparagraph 1
For the purposes of verifying the information on the beneficial owner(s), obliged entities shall also consulttake the necessary measures including the consultation of the central registers referred to in Article 10 of Directive [please insert reference – proposal for 6th Anti-Money Laundering Directive - COM/2021/423 final] as well as additional information. Obliged entities shall determine the extent of the additional information to be consultedmeasures to be taken, having regard to the risks posed by the transaction or the business relationship and the beneficial owner. The obliged entities shall be satisfied that they know who the beneficial owner is, including, as regards legal persons, trusts, companies foundations and similar legal arrangements, taking necessary measures to understand the ownership and control structure of the customer.
Amendment 536 #
Proposal for a regulation
Article 18 – paragraph 4 – subparagraph 1 a (new)
Article 18 – paragraph 4 – subparagraph 1 a (new)
By way of derogation from paragraph 1 to 4, an obliged entity may refrain from the identification and verification of the customer or beneficial owner if the obliged entity has already verified and identified the person in question on a previous occasion in the previous six months in line with the requirements laid down in paragraph 1 to 4 and there is no reasonable doubt that the information obtained on that previous occasion is no longer accurate.
Amendment 588 #
Proposal for a regulation
Article 23 – paragraph 6
Article 23 – paragraph 6
6. The Commission shall review the delegated acts referred to in paragraph 2 on a regular basiat least every two years to ensure that the specific countermeasures identified pursuant to paragraph 5 take account of the changes in the AML/CFT framework of the third country and are proportionate and adequate to the risks.
Amendment 595 #
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 onfrom EU bodies also already involved in the EU AML/CFT framework and from jurisdictions under increased monitoring by 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 598 #
Proposal for a regulation
Article 24 – paragraph 5
Article 24 – paragraph 5
5. The Commission shall review the delegated acts referred to in paragraph 2 on a regular basiat least every two years to ensure that the specific enhanced due diligence measures identified pursuant to paragraph 4 take account of the changes in the AML/CFT framework of the third country and are proportionate and adequate to the risks.
Amendment 614 #
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 617 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. For the purposes of determining the level of threat referred to in paragraph 1, the Commission may request AMLA to adopt an opinion aimed at assessing the specific impact on the integrity of the Union’s financial system due to the level of threat posed by a third country. To do so, AMLA can contact other EU bodies also already involved in the EU AML/CFT framework, as well as Europol.
Amendment 622 #
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 also already involved in the AML/CFT framework and by international organisations and standard setters with competence in the field of preventing money laundering and combating terrorist financing.
Amendment 628 #
Proposal for a regulation
Article 25 – paragraph 7
Article 25 – paragraph 7
7. The Commission shall review the delegated acts referred to in paragraph 2 on a regular basiat least every two years to ensure that the measures referred to in paragraphs 5 and 6 take account of the changes in the AML/CFT framework of the third country and are proportionate and adequate to the risks.
Amendment 634 #
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 also already involved in the AML/CFT framework, of international organisations and standard setters with competence in the field of preventing money laundering and combating terrorist financing.
Amendment 641 #
Proposal for a regulation
Article 27 – paragraph 1 – point a
Article 27 – paragraph 1 – point a
(a) verify the identity of the customer and the beneficial owner after the establishment of the business relationship, provided that the specific lower risk identified justified such postponement, but in any case no later than 360 days of the relationship being established;
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 705 #
Proposal for a regulation
Article 36 a (new)
Article 36 a (new)
Amendment 714 #
Proposal for a regulation
Article 40 – paragraph 1 – introductory part
Article 40 – paragraph 1 – introductory part
1. Obliged entities may outsource tasks deriving from requirements under this Regulation for the purpose of performing customer due diligence to an agent or external service provider established within the European Union, whether a natural or legal person, with the exception of natural or legal persons residing or established in third countries identified pursuant to Section 2 of this Chapter.
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 755 #
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 on10% or more of the shares or voting rights or other ownership interest in the corporate entity, including through bearer shareholdings, on every level of ownership.
Amendment 759 #
Proposal for a regulation
Article 42 – paragraph 1 – subparagraph 1
Article 42 – paragraph 1 – subparagraph 1
For the purpose of this Article, ‘direct control through an ownership interest’ shall mean an ownership of 2510% plus one of the shares or voting rights or other ownership interest in the corporate entity, including through bearer shareholdings, on every level of ownership held by a natural person.
Amendment 763 #
Proposal for a regulation
Article 42 – paragraph 1 – subparagraph 1 a (new)
Article 42 – paragraph 1 – subparagraph 1 a (new)
For the purpose of this Article, ‘indirect control through an ownership interest’ shall mean an ownership of 10% plus one of the shares or voting rights or other ownership interest in the corporate entity held by another corporate entity, which is under the control of a natural person, or by multiple corporate entities, which are under the control of the same natural person(s).
Amendment 766 #
Proposal for a regulation
Article 42 – paragraph 1 – subparagraph 2 – introductory part
Article 42 – paragraph 1 – subparagraph 2 – introductory part
For the purpose of this Article, ‘control via other means’ shall include at leastfor example1a one of the following: _________________ 1a 5th AMLD did not define “control via other means”. The relations between the UBO and the corporate entity in a money laundering scheme can be very different, depending on the criminal case and the list proposed here is limitative. Those schemes evolve.
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 808 #
Proposal for a regulation
Article 44 – paragraph 2
Article 44 – paragraph 2
2. Beneficial ownership information shall be obtained within 14 calendar days from the creation of legal entities or legal arrangements. It shall be updated promptly, and in any case no later than 14 calendar days following any change of the beneficial owner(s), and on an annual basis. according to the frequency as set-out in Article 21.2 of this Regulation.
Amendment 828 #
Proposal for a regulation
Article 46 – title
Article 46 – title
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 837 #
Proposal for a regulation
Article 48 – paragraph 2
Article 48 – paragraph 2
2. Where the legal entity, the trustee of the express trust or the person holding an equivalent position in a similar legal arrangement enters into multiple business relationships or acquires real estate in different Member States, a certificate of proof of registration of the beneficial ownership information in a central register held by one Member State shall be considered as sufficient proof of registration. This certificate should in particular include reference to the requirements of Article 10.3 of Directive [please insert reference – proposal for 6th Anti-Money Laundering Directive - COM/2021/423final] in case no BO was identified.
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 842 #
Proposal for a regulation
Article 50 – paragraph 1 – introductory part
Article 50 – paragraph 1 – introductory part
1. Obliged entities shall report to the FIU all suspicious transactions, including attempted ns of money laundering, predicate offences and terrorist financing, including on attempted transactions.1a _________________ 1a “Suspicious transactions”. The scope of the obligation to report should not be narrowly confined to “transactions”: suspicions may arise in a wide range of different circumstances in the course of the diversified businesses carried out by the multiple categories of obliged entities. It is essential that STRs are filed when the facts, activities or information pertaining to suspicions are not only related to “transactions”. Ultimately, suspicions of ML, predicate offences or TF have to be reported to the FIU whatever the source and regardless of there being a “transaction” (even attempted). The provision in par. 1 should be broadened accordingly.
Amendment 850 #
Proposal for a regulation
Article 50 – paragraph 1 – subparagraph 1 – point a
Article 50 – paragraph 1 – subparagraph 1 – point a
(a) reporting to the FIU, on their own initiative, where the obliged entity knows, suspects or has reasonable grounds to suspect that funds or activities, regardless of the amount involved, are the, are related to proceeds of criminal activity or are related to terrorist financing, and by responding to requests by the FIU for additional information in such cases; 1a _________________ 1a “Funds”. Along the same lines, while article 50(1) sets out a broad scope for the notion of “suspicion” to reported, article 50(2) seems to unduly limit this reporting obligation only to cases where there are “funds” involved. It is important, instead, to clarify that the reports are due, in cases of suspicion, not only in relation to “funds” but taking account of any relevant underlying fact, circumstance or information (concerning, e.g., the customer, his/her/its counterparts, other subjects or activities involved). Furthermore, while the reference to “funds” (dating back to the first AMLD) may have been appropriate when the scope of the obligation was limited to financial institutions, it certainly inappropriate now to encompass non financial activities subject to the same obligation.
Amendment 856 #
Proposal for a regulation
Article 50 – paragraph 1 – subparagraph 2
Article 50 – paragraph 1 – subparagraph 2
For the purposes of points (a) and (b), obliged entities shall reply to are request for information by the FIU within 5 days. In justified and urgent cases, FIUs shall be able to shorten such a deadline to 24 hours. or a different deadline set by the FIU taking account of the urgency and the complexity of the query.1a _________________ 1a Deadlines for replying to requests. Setting “ex ante” a mandatory deadline in the regulation, applicable in all cases for obliged entities to reply to requests for information by the FIU does not seem appropriate and can be detrimental. In fact, on one hand the upper limit of 5 days may not be sufficient for gathering necessary information, especially in complex cases that involve several transactions and business relationships or where data has to be collected across multiple entities in the group or in the cases of outsourcing arrangements (see article 20) or, finally, when it comes to certain categories of obliged entities which transmit to the FIU such information through self-regulatory bodies. In these cases, the need to comply with the deadline would lead to poor information gathering and response to the FIU. On the other hand, having a 5 days timespan for providing feedback to the FIU, or even 24 hours, would be counterproductive when the reaction has to be prompt and quicker, typically in cases where transactions are in progress and decisions on postponement or seizure have to be taken immediately. Moreover, the consequences of the failure to comply with the deadlines are unclear; in case of delay, would any sanction be applicable to the obliged entity? A suitable alternative to the proposed and excessively rigid one- size-fits-all approach of a threshold set in primary provisions would be to foresee that the FIU, when and to the extent appropriate, set a deadline for replies taking account of circumstances (e.g. complexity, urgency). This solution would allow for the necessary flexibility and could be assisted by administrative sanctions.
Amendment 857 #
2. For the purposes of paragraph 1, obliged entities shall assess transactions identified pursuant to Article 20 as atypical in order to detect those that can be suspected of being linked to money laundering or terrorist financing. A suspicion is based, for example, on the characteristics of the customer and his/her/its counterparts, the size, nature and methods of execution of the transaction or activity, the link between several transactions or activities and any other circumstance known to the obliged entity, including the origin of funds or assets and the consistency of the transaction or activity with the risk profile of the client.1a _________________ 1a The notion of "atypical transaction" (which is mentioned only in recital 40 in relation to automated monitoring systems for certain obliged entities) and that of “suspicion” should be defined or better described. While this objective could be achieved mostly through appropriate guidance by AMLA, this provision in the AMLR could nonetheless be made more specific by referencing, as relevant factors, at least also the characteristics of the customer’s counterparts, the methods of execution of the transaction (e.g. the splitting of operations) indications (or lack thereof) on the origin of involved funds or assets.
Amendment 865 #
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 also already involved in the AML/CFT framework.
Amendment 928 #
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 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 938 #
Proposal for a regulation
Article 59 – paragraph 4 a (new)
Article 59 – paragraph 4 a (new)
4a. When there are indications that payments in cash, below or above the threshold of 2000 euros, are related to criminal activity, Member States shall record that information, in particular the owner and the recipient of the cash, and ensure that the information collected is available to FIUs and other competent authorities in charge of investigations, including, in cross-border cases, to Europol.
Amendment 940 #
Proposal for a regulation
Article 59 – paragraph 6 a (new)
Article 59 – paragraph 6 a (new)
6a. Those sanctions should apply to the breach of the limit under this Regulation and should not take into account the potential criminal activity associated with the cash, which may be the object of further investigation and measures that fall outside the scope of this Regulation.