New employer obligations just around the corner. The Sejm has passed an amendment to the Anti-Money Laundering Act.

Parliamentary amendments

In December, we reported that the Ministry of Finance submitted a draft amendment to the Act on counteracting money laundering and financing of terrorism and certain other Acts. The draft envisaged, among other things, imposing on obliged institutions the necessity to carry out new reporting obligations and to classify transactions conducted.

The Sejm passed the amendment on 25 February, together with two clarifying amendments. The amendment is related to the need to implement EU directives. Its main aim is to implement the so-called fifth EU AML Directive, which seeks to increase the transparency of financial flows and enhance the effectiveness of authorities detecting funds originating from criminal activity or serving terrorist activities.

The changes include the addition of a new category of obliged institutions, namely entrepreneurs within the meaning of the Act of 6 March 2018 – Entrepreneurs’ Law (Journal of Laws 2019, items 1292 and 1495, and 2020, items 424 and 1086), whose core business activity is the provision of services consisting of preparing declarations, keeping tax books, providing advice, opinions, or explanations regarding tax or customs law provisions, who are not other obliged institutions;” as well as entrepreneurs within the meaning of the Act of 6 March 2018 – Entrepreneurs’ Law conducting activities consisting of:
a) trading or brokering trade in works of art, collectibles and antiques within the meaning of Article 120(1)(1–3) of the Act of 11 March 2004 on goods and services tax (Journal of Laws 2020, item 106, as amended3)), including when such activities are conducted:
– in art galleries or auction houses, or
– using a free port, understood as a zone or premises where goods are treated as not being within the customs territory of the Member States or third countries, including using a free customs zone,
b) storing works of art, collectibles and antiques within the meaning of Article 120(1)(1–3) of the Act of 11 March 2004 on goods and services tax, when such activity is conducted using a free port, referred to in point a dash two – in relation to transactions with a value equal to or exceeding the equivalent of €10,000, regardless of whether the transaction is carried out as a single operation or several operations that appear to be connected;”

Who is the beneficial owner?

According to the draft, this means any natural person who directly or indirectly exercises control over the client through rights arising from legal or factual circumstances, enabling decisive influence over the activities or actions undertaken by the client, or any natural person on whose behalf business relationships are established or occasional transactions are conducted, including:
a) in the case of a legal person other than a company whose securities are admitted to trading on a regulated market subject to disclosure requirements under European Union law or equivalent third country law:
– a natural person who is a shareholder holding ownership of more than 25% of the total number of shares or stocks of that legal person,
– a natural person holding more than 25% of the total voting rights in the governing body of that legal person, also as a pledgee or usufructuary, or based on agreements with other persons entitled to vote,
– a natural person exercising control over the legal person or legal persons that collectively hold ownership of more than 25% of the total number of shares or stocks, or collectively hold more than 25% of the total voting rights in the governing body of that legal person, also as a pledgee or usufructuary, or based on agreements with other persons entitled to vote,
– a natural person exercising control over the legal person through powers referred to in Article 3(1)(37) of the Act of 29 September 1994 on accounting (Journal of Laws 2019, item 351, as amended4)),
– a natural person holding a senior managerial position where there is documented inability to identify or doubts as to the identity of the natural persons referred to in the first to fourth dashes, and in cases where no suspicion of money laundering or terrorist financing has been found,
b) in the case of a trust:
– the settlor,
– the trustee,
– the supervisor, if appointed,
– the beneficiary or – where the natural persons benefiting from the trust have not yet been identified – a group of persons in whose main interest the trust was created or operates,
– another person exercising control over the trust,
– another natural person with rights or obligations equivalent to those referred to in the first to fifth dashes,
c) in the case of a natural person conducting business activity, where no circumstances indicating control by another natural person or persons have been found, it is assumed that such natural person is simultaneously the beneficial owner;”

Other obligations

In addition to the above obligations, obliged institutions will be required to develop internal anti-money laundering procedures, appoint an AML officer – a person responsible for implementing and complying with procedures and for providing anti-money laundering training to employees.

More information about the adopted amendment can be found on our website: https://atl-law.pl/ministerstwo-planuje-wprowadzenie-nowych-obowiazkow-dla-przedsiebiorcow-projekt-nowelizacji-ustawy-o-przeciwdzialaniu-praniu-pieniedzy/