The Act of 1 March 2018 on Counteracting Money Laundering and Terrorist Financing (Journal of Laws 2018, item 723; the ‘Act’) implements the European Parliament’s Fourth Anti-Money Laundering Directive in Poland. The new rules have applied since 13 July, but further changes are coming: the Parliament has already published a proposal for a Fifth AML Directive.
OBLIGED ENTITIES
EXHAUSTIVE LIST
Article 2 exhaustively lists the entities required to apply the Act. The broad list mainly comprises financial institutions, including banks, investment funds, insurers, cooperative savings and credit unions, companies operating regulated markets, currency exchange businesses and many others.
NEW ENTITIES
[shelf-company service providers] Beyond traditional financial institutions, the Act adds two groups. The first comprises businesses providing services such as forming companies, acting as management board members, providing registered offices, business or correspondence addresses, acting or arranging for another person to act as trustee of an express trust, or acting or arranging for another person to exercise shareholder rights for non-public companies.
[cryptocurrency exchanges] The second newly covered category is businesses exchanging virtual currencies. The European Parliament responded to the growth of cryptocurrencies to limit the opportunities for using these new tools to launder money.
[EUR 10,000 in cash] The Act also applies to businesses accepting cash payments equal to or exceeding EUR 10,000, previously EUR 15,000.
EXEMPT ENTITIES
Antiquarian businesses, auction houses, dealers in metals or stones and consignment businesses have been exempted from the Act’s regime.
BENEFICIAL OWNER
WHO IS IT?
A beneficial owner is a natural person who directly or indirectly controls an entity. For companies, the statutory criteria include a natural person holding more than 25% of the shares or controlling more than 25% of the votes in the decision-making body, including as pledgee or usufructuary or under agreements with other persons entitled to vote. There may be several beneficial owners; each natural person is identified separately under the statutory control criteria.
REGISTER
The Central Register of Beneficial Owners provisions took effect on 13 October 2019. Under the original Act, companies had seven days from registration in the National Court Register or a change in their details to report, excluding Saturdays and statutory public holidays. Companies already registered were given six months from the entry into force of the register provisions. The original first-filing deadline was stated as 13 April 2020 and was subsequently extended. Failure to report carried a fine of up to PLN 1,000,000. These are historical rules.
THE AML ACT AND OTHER RULES
AML AND THE GDPR
It is crucial to determine whether an entity is obliged under AML rules. A mistaken assessment risks substantial penalties under the AML Act or GDPR. The Act requires processing customer and obliged-entity data and provides a basis for doing so. Where due diligence is voluntary, rather than required by AML rules, another legal basis is needed. Without even consent, the weakest processing basis, the activity is unlawful and risks a penalty from the President of the Personal Data Protection Office.
FOURTH AND FIFTH AML DIRECTIVES
The Fourth AML Directive is a step towards completing European mechanisms against money laundering and terrorist financing. The next stage is intended to be the Fifth Directive, whose proposal has already been published. The new rules would interconnect national registers so every EU citizen could verify beneficial owners.
