42 Amendments of Isabel BENJUMEA BENJUMEA related to 2021/0239(COD)
Amendment 170 #
Proposal for a regulation
Recital 28
Recital 28
(28) The consistent implementation of group-wide AML/CFT policies and procedures is key to the robust and effective management of money laundering and terrorist financing risks within the group. To this end, group-wide policies, controls and procedures should be adopted and implemented by the parent undertaking. Obliged entities within the group should be required to exchange information when such sharing is relevant for preventing money laundering and terrorist financing. Information sharing should be subject to sufficient guarantees in terms of confidentiality, data protection and use of information. AMLA should have the task of drawing up draft regulatory standards specifying the minimum requirements of group-wide procedures and policies, including minimum standards for information sharing within the group and the role and responsibilities of parent undertakings that are not themselves obliged entities. These draft regulatory rules should be proportionate, seeking to avoid imposing an excessive burden on obliged entities and providing a framework for competition between sectors.
Amendment 172 #
Proposal for a regulation
Recital 29
Recital 29
(29) In addition to groups, other structures exist, such as networks or partnerships, in which obliged entities might share common ownership, management and compliance controls. To ensure a level playing field across the sectors whilst avoiding overburdening it, AMLA should identify those situations where similar group-wide policies should apply to those structures in a proportionate manner, without undermining the sector's competitiveness.
Amendment 174 #
Proposal for a regulation
Recital 30
Recital 30
(30) There are circumstances where branches and subsidiaries of obliged entities are located in third countries where the minimum AML/CFT requirements, including data protection obligations, are less strict than the Union AML/CFT framework. In such situations, and in order to fully prevent the use of the Union financial system for the purposes of money laundering and terrorist financing and to ensure the highest standard of protection for personal data of Union citizens, those branches and subsidiaries should comply with AML/CFT requirements laid down at Union level. Where the law of a third country does not permit compliance with those requirements, for example because of limitations to the group's ability to access, process or exchange information due to an insufficient level of data protection or banking secrecy law in the third country, obliged entities should take additional measures to ensure the branches and subsidiaries located in that country effectively handle the risks. AMLA should be tasked with developing draft technical standards specifying the type of such additional measures with a view to striking a balance between underpinning the EU's guarantee requirements and creating a level playing field for obliged entities located in third countries.
Amendment 192 #
Proposal for a regulation
Recital 50
Recital 50
(50) Third countries “subject to a call for action” by the relevant international standard-setter (the FATF) present significant strategic deficiencies of a persistent nature in their legal and institutional AML/CFT frameworks and their implementation which are likely to pose a high risk to the Union’s financial system. The persistent nature of the significant strategic deficiencies, reflective of the lack of commitment or continued failure by the third country to tackle them, signal a heightened level of threat emanating from those third countries, which requires an effective, consistent and harmonised mitigating response at Union level. Therefore, obliged entities should be required to apply the whole set of available enhanced due diligence measures to occasional transactions and business relationships involving those high-risk third countries to manage and mitigate the underlying risks. Furthermore, the high level of risk justifies the application of additional specific countermeasures, whether at the level of obliged entities or by the Member States. Such approach would avoid divergence in the determination of the relevant countermeasures, which would expose the entirety of Union’s financial system to risks. Given its technical expertise, AMLA can provide useful input to the Commission in identifying the appropriate countermeasurescountermeasures proportionate to the level of risk. When particular circumstances so warrant, AMLA and the Commission may consider third countries 'subject to a call for action' those territories which, while part of a State that does not pose a threat to the EU's financial system, have particular characteristics that pose a significant threat to the EU's financial system.
Amendment 195 #
Proposal for a regulation
Recital 51
Recital 51
(51) Compliance weaknesses in both the legal and institutional AML/CFT framework and its implementation of third countries which are subject to “increased monitoring” by the FATF are susceptible to be exploited by criminals. This is likely to represent a risk for the Union’s financial system, which needs to be managed and mitigated. The commitment of these third countries to address identified weaknesses, while not eliminating the risk, justifies a mitigating response, which is less severe than the one applicable to high-risk third countries. In these cases, Union’s obliged entities should apply enhanced due diligence measures to occasional transactions and business relationships when dealing with natural persons or legal entities established in those third countries that are tailored to the specific weaknesses identified in each third country. Such granular identification of the enhanced due diligence measures to be applied would, in line with the risk-based approach, also ensure that the measures are proportionate to the level of risk. To ensure such consistent and proportionate approach, the Commission should be able to identify which specific enhanced due diligence measures are required in order to mitigate country-specific risks or risks in the territory in question. Given AMLA’s technical expertise, it can provide useful input to the Commission to identify the appropriate enhanced due diligence measures proportionate to the level of risk of the activities carried out in third countries.
Amendment 199 #
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, 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 the territory in question, or country-specific enhanced customer due diligence, such as in the case of third countries with compliance weaknesses.
Amendment 421 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Obliged entities shall appoint one executive member of their board of directors or, if there is no board, of its equivalent governing body who shall be responsible for the implementationtaking of measures to ensure compliance withsupervise the implementation of this Regulation (‘compliance manager’). Where the entity has no governing body, the function should be performed by a member of its senior management. This paragraph is without prejudice to national provisions on joint civil or criminal liability of governing bodies.
Amendment 428 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The compliance manager shall be responsible for implementingsupervising the implementation of the obliged entity’s policies, controls and procedures and for receiving information on significant or material weaknesses in such policies, controls and procedures. The compliance manager shall regularly report on those matters to the board of director or equivalent governing body. For parent undertakings, that person shall also be responsible for overseeing group-wide policies, controls and procedures.
Amendment 437 #
Proposal for a regulation
Article 9 – paragraph 3 – introductory part
Article 9 – paragraph 3 – introductory part
3. Obliged entities shall have a compliance officer, to be appointed by the board of directors or governing body, who shall be in charge of the day-to-day operation of the obliged entity’s anti- money laundering and countering the financing of terrorism (AML/CFT) policies. That person shall also be responsible for reporting suspicious transactions to the Financial Intelligence Unit (FIU) in accordance with Article 50(6).
Amendment 500 #
Proposal for a regulation
Article 17 – paragraph 1 – subparagraph 1
Article 17 – paragraph 1 – subparagraph 1
The first subparagraph shall not apply to notaries, external and in-house lawyers and other independent legal professionals, auditors, external accountants and tax advisors, to the strict extent that those persons ascertain the legal position of their client, or perform the task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings.
Amendment 576 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
1. Third countries with significant strategic deficiencies in their national AML/CFT regimes shall be identified by the Commission and designated as ‘high- risk third countries’. The Commission shall also identify as a ‘high-risk territory’ jurisdictions whose strategic deficiencies pose a particular threat to the EU financial system, even if they are part of a third country that does not qualify as a ‘high-risk third country’.
Amendment 577 #
Proposal for a regulation
Article 23 – paragraph 2 – introductory part
Article 23 – paragraph 2 – introductory part
2. In order to identify the countries or territories referred to in paragraph 1, the Commission is empowered to adopt delegated acts in accordance with Article 60 to supplement this Regulation, where:
Amendment 578 #
Proposal for a regulation
Article 23 – paragraph 2 – point a
Article 23 – paragraph 2 – point a
(a) significant strategic deficiencies in the legal and institutional AML/CFT framework of the third country or territory have been identified; or
Amendment 579 #
Proposal for a regulation
Article 23 – paragraph 2 – point b
Article 23 – paragraph 2 – point b
(b) significant strategic deficiencies in the effectiveness of the third country’s or territory’s AML/CFT system in addressing money laundering or terrorist financing risks have been identified;
Amendment 583 #
Proposal for a regulation
Article 23 – paragraph 4
Article 23 – paragraph 4
4. Where a third country or territory is identified in accordance with the criteria referred to in paragraph 3, obliged entities shall apply enhanced due diligence measures listed in Article 28(4), points (a) to (g) with respect to the business relationships or occasional transactions involving natural or legal persons from that third country or territory.
Amendment 585 #
Proposal for a regulation
Article 23 – paragraph 5
Article 23 – paragraph 5
5. The delegated act referred to in paragraph 2 shall identify among the countermeasures listed in Article 29 the specific countermeasures mitigating country-specific risks stemming from high- risk third countries or territories.
Amendment 587 #
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 basis 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 or territory and are proportionate and adequate to the risks.
Amendment 590 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
1. Third countries or territories with compliance weaknesses in their national AML/CFT regimes shall be identified by the Commission.
Amendment 591 #
Proposal for a regulation
Article 24 – paragraph 2 – introductory part
Article 24 – paragraph 2 – introductory part
2. In order to identify the countries or territories referred to in paragraph 1, the Commission is empowered to adopt delegated acts in accordance with Article 60 to supplement this Regulation, where:
Amendment 592 #
Proposal for a regulation
Article 24 – paragraph 2 – point a
Article 24 – paragraph 2 – point a
(a) compliance weaknesses in the legal and institutional AML/CFT framework of the third country or territory have been identified;
Amendment 593 #
Proposal for a regulation
Article 24 – paragraph 2 – point b
Article 24 – paragraph 2 – point b
(b) compliance weaknesses in the effectiveness of the third country’s or territory’s AML/CFT system in addressing money laundering or terrorist financing risks have been identified.
Amendment 597 #
Proposal for a regulation
Article 24 – paragraph 4
Article 24 – paragraph 4
4. The delegated act referred to in paragraph 2 shall identify the specific enhanced due diligence measures among those listed in Article 28(4), points (a) to (g), that obliged entities shall apply to mitigate risks related to business relationships or occasional transactions involving natural or legal persons from that third country or territory.
Amendment 601 #
Proposal for a regulation
Article 25 – paragraph 1
Article 25 – paragraph 1
1. The Commission is empowered to adopt delegated acts in accordance with Article 60 identifying third countries or territories that pose a specific and serious threat to the financial system of the Union and the proper functioning of the internal market other than those covered by Articles 23 and 24.
Amendment 605 #
Proposal for a regulation
Article 25 – paragraph 2 – point a – introductory part
Article 25 – paragraph 2 – point a – introductory part
(a) the legal and institutional AML/CFT framework of the third country or territory, in particular:
Amendment 610 #
Proposal for a regulation
Article 25 – paragraph 2 – point b
Article 25 – paragraph 2 – point b
(b) the powers and procedures of the third country’s or territory’s competent authorities for the purposes of combating money laundering and terrorist financing including appropriately effective, proportionate and dissuasive sanctions, as well as the third country’s practice in cooperation and exchange of information with Member States’ competent authorities;
Amendment 611 #
Proposal for a regulation
Article 25 – paragraph 2 – point c
Article 25 – paragraph 2 – point c
(c) the effectiveness of the third country’s or territory’s AML/CFT system in addressing money laundering or terrorist financing risks;
Amendment 620 #
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 or territory.
Amendment 625 #
Proposal for a regulation
Article 25 – paragraph 5
Article 25 – paragraph 5
5. Where the identified specific and serious threat from the concerned third country or territory amounts to a significant strategic deficiency, Article 23(4) shall apply and the delegated act referred to in paragraph 2 shall identify specific countermeasures as referred to in Article 23(5).
Amendment 626 #
Proposal for a regulation
Article 25 – paragraph 6
Article 25 – paragraph 6
6. Where the identified specific and serious threat from the concerned third country or territory amounts to a compliance weakness, the delegated act referred to in paragraph 2 shall identify specific enhanced due diligence measures as referred to in Article 24(4).
Amendment 627 #
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 basis 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 or territory and are proportionate and adequate to the risks.
Amendment 630 #
Proposal for a regulation
Article 25 a (new)
Article 25 a (new)
Amendment 663 #
Proposal for a regulation
Article 28 – paragraph 6
Article 28 – paragraph 6
6. Enhanced customer due diligence measures shall not be invoked automatically with respect to branches or subsidiaries of obliged entities established in the Union which are located third countries or territories referred to in Articles 23, 24 and 25 where those branches or subsidiaries fully comply with the group-wide policies, controls and procedures in accordance with Article 14.
Amendment 665 #
Proposal for a regulation
Article 29 – paragraph 1 – point a – introductory part
Article 29 – paragraph 1 – point a – introductory part
(a) countermeasures that obliged entities are to apply to persons and legal entities involving high-risk third countries or territories and, where relevant, other countries posing a threat to the Union’s financial system consisting in:
Amendment 666 #
Proposal for a regulation
Article 29 – paragraph 1 – point a – point iii
Article 29 – paragraph 1 – point a – point iii
(iii) the limitation of business relationships or transactions with natural persons or legal entities from those third countries or territories;
Amendment 667 #
Proposal for a regulation
Article 29 – paragraph 1 – point b – introductory part
Article 29 – paragraph 1 – point b – introductory part
(b) countermeasures that Member States are to apply with regard to high-risk third countries or territories and, where relevant, other countries posing a threat to the Union’s financial system consisting in:
Amendment 668 #
Proposal for a regulation
Article 29 – paragraph 1 – point b – point i
Article 29 – paragraph 1 – point b – point i
(i) refusing the establishment of subsidiaries or branches or representative offices of obliged entities from the country concerned, or otherwise taking into account the fact that the relevant obliged entity is from a third country or territory that does not have adequate AML/CFT regimes;
Amendment 669 #
Proposal for a regulation
Article 29 – paragraph 1 – point b – point ii
Article 29 – paragraph 1 – point b – point ii
(ii) prohibiting obliged entities from establishing branches or representative offices of obliged entities in the third country or territory concerned, or otherwise taking into account the fact that the relevant branch or representative office would be in a third country or territory that does not have adequate AML/CFT regimes;
Amendment 670 #
Proposal for a regulation
Article 29 – paragraph 1 – point b – point iii
Article 29 – paragraph 1 – point b – point iii
(iii) requiring increased supervisory examination or increased external audit requirements for branches and subsidiaries of obliged entities located in the third country or territory concerned;
Amendment 671 #
Proposal for a regulation
Article 29 – paragraph 1 – point b – point iv
Article 29 – paragraph 1 – point b – point iv
(iv) requiring increased external audit requirements for financial groups with respect to any of their branches and subsidiaries located in the third country or territory concerned;
Amendment 673 #
Proposal for a regulation
Article 29 – paragraph 1 – point b – point v
Article 29 – paragraph 1 – point b – point v
(v) requiring credit and financial institutions to review and amend, or if necessary terminate, correspondent relationships with respondent institutions in the third country or territory concerned.
Amendment 676 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
With respect to cross-border correspondent relationships, including relationships established for securities transactions or fund transfers, involving the execution of payments with a third-country or third- territory respondent institution, in addition to the customer due diligence measures laid down in Article 16, credit institutions and financial institutions shall be required, when entering into a business relationship, to:
Amendment 874 #
Proposal for a regulation
Article 51 – paragraph 2
Article 51 – paragraph 2
2. Notaries, external and in-house lawyers and other independent legal professionals, auditors, external accountants and tax advisors shall be exempted from the requirements laid down in Article 50(1) to the extent that such exemption relates to information that they receive from, or obtain on, one of their clients, in the course of ascertaining the legal position of their client, or performing their task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings, whether such information is received or obtained before, during or after such proceedings.