Money Laundering Legislation National Measures
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Money Laundering Legislation National Measures Fraud Working Group Brussels - October 2002 European Banking Federation Rue Montoyer 10 B - 1000 Brussels www.fbe.be TABLE OF CONTENTS INTRODUCTION NATIONAL MEASURES IN THE HOME COUNTRIES OF THE FBE MEMBERS AUSTRIA 1 BELGIUM 4 DENMARK 9 FINLAND 12 FRANCE 15 GERMANY 20 GREECE 24 ICELAND 29 IRELAND 33 ITALY 38 LUXEMBOURG 42 THE NETHERLANDS 46 NORWAY 51 PORTUGAL 56 SPAIN 59 SWEDEN 63 SWITZERLAND 66 UNITED KINGDOM 71 NATIONAL MEASURES IN OTHER EUROPEAN COUNTRIES ANDORRA 75 BULGARIA 78 CROATIA 82 CYPRUS 86 CZECH REPUBLIC 89 ESTONIA 92 HUNGARY 96 LATVIA 102 LITHUANIA 107 MALTA 110 POLAND 114 SLOVAK REPUBLIC 117 SLOVENIA 120 TURKEY 124 NATIONAL MEASURES IN THIRD COUNTRIES AUSTRALIA 127 GIBRALTAR 131 JAPAN 134 MONACO 138 NEW ZEALAND 142 UNITED STATES OF AMERICA 146 ANNEX 1: IDENTIFICATION AT A DISTANCE (I-III) 150 ANNEX 2: TERRORIST FINANCING (I-XXVII) 154 LIST OF ADDRESSES 155 INTRODUCTION NATIONAL MEASURES IN THE HOME COUNTRIES OF FBE MEMBERS AUSTRIA 1. MONEY LAUNDERING LEGISLATION - The Austrian Penal Code (Strafgezetzbuch) provides for a specific money laundering offence covering the proceeds of all serious crimes and deals with the confiscation of proceeds from crime and extradition. In August 2002 an amendment to the Penal Code widened the scope of money laundering to cover fully the requirements of the UN Convention on Organized Crime including the financing of terrorism. - Banking Act (§ 40, 41): stipulates a mandatory system based on reporting suspicions (to the Austrian Financial Intelligence Unit), including inter alia enhanced customer identification and record-keeping requirements (for transactions in excess of EUR 15,000 or the equivalent amount in foreign currency). Amended in 2000. - On 1 November 2000, the Austrian Banking Act was amended to prohibit the opening of so-called “anonymous” savings accounts; the provisions on the identification rules concerning depositing and withdrawing funds with regard to such savings accounts have been adapted accordingly. The transition period for existing anonymous accounts ended on 30 June 2002. 2. CENTRAL AUTHORITY FOR REPORTING The General Directorate for Public Security within the Federal Ministry of the Interior (Bundeskriminalamt – Geldwäschemeldestelle). 3. BUSINESSES COVERED BY THE LEGISLATION Only financial institutions are covered by the Banking Law, however the provisions of the Penal Code relating to money laundering as an offence also concern individual persons and are not limited to specific businesses or institutions. The Austrian Industrial Code (Gewerbeordnung) will be amended to implement fully the 2nd Money Laundering Directive. 4. FEEDBACK FOLLOWING NOTIFICATION OF A SUSPICIOUS OPERATION The Banking Law provides for feedback as a standard procedure. However, this is currently implemented in a pragmatic way through periodic direct contacts between banks (and/or their security officers) and the Unit for the Fight against Organised Crime set up within the General Directorate for Public Security. 5. OFFENCES COVERED IN ADDITION TO THOSE WHICH ARE DRUG-RELATED The legislation covers all assets of criminal origin. 1 Austria 6. CONSERVATION OF RECORDS AND DOCUMENTS Duration Identification documents: banking law obliges banks to keep evidence for at least 5 years after the end of the business relationship with the customer. Transaction documents: supporting evidence and records of all transactions for a period of at least five years following the execution of the transaction. 7. PERSONS RESPONSIBLE FOR REPORTING In general a person is appointed to act as the central point for reporting suspicious operations for the bank as a whole. He/she is the point of contact with the money laundering authorities. 8. PURPOSES FOR WHICH THE INFORMATION MAY BE USED Legislation only provides for the information collected to be used to combat criminal, not fiscal, offences. 9. LIABILITY OF BANK STAFF IN THE EVENT OF NOTIFICATION Under the Banking Law (§ 40, 41), bank staff have no liability if the notifications are made in good faith; banks are prohibited from warning customers that notifications have been made. 10. REACTION OF THE BANK AT THE TIME OF OR SUBSEQUENT TO A SUSPICIOUS OPERATION (EXECUTION/NON-EXECUTION) Credit institutions and financial institutions have to inform the General Directorate for Public Security if there is reasonable suspicion that: 9 a transaction which has already been concluded, is in progress or is about to be concluded is for the purpose of money laundering; or, 9 a customer has breached his duty to disclose fiduciary relationships. In case of doubt, instructions regarding deposits may be executed, but withdrawals may not be made. If, within 24 hours (end of the following banking day) of the proposed transaction being notified, the competent authority has not prohibited the transaction, the transaction may then be executed. 11. IDENTIFICATION a) Identification threshold amount Under the Banking Law, there is a mandatory system for customer identification when a permanent business relationship is established or in the case of transactions amounting to at least EUR 15,000 or the equivalent amount in foreign currency, irrespective of whether the transaction is carried out in a single operation or in several operations which are obviously closely linked. b) Means of identification Banks are obliged to register the identity of their customers. In general, means of identification are: 2 Austria 9 Natural persons: an official identification document, e.g. passport, Austrian national identity card; (Austrian) driver’s license, a national identity card of a member state of the European Union; 9 Legal persons: extracts from the Commercial Register (which is a computerized official on-line database containing all relevant information on a company) or a certificate of incorporation or registration. Under the Foreign Exchange Law banks and financial institutions are obliged, when entering into a business relationship with a customer, to verify the customer's status with regard to foreign exchange regulations. 9 Natural or legal persons acting for the account of a third person: Insofar as a natural or legal person acts as trustee for funds from non- residents, the depositor must inform the account holding institution of the beneficiary's identity (disclosure of the beneficiary's name and residence and the depositor must prove that he has the right under a power of attorney to act for the beneficiary). c) Identification at a distance In certain limited circumstances, an account may also be opened without the prospective account holder being obliged to go in person to the credit institution. In practice, banks also accept identification checks, but only through “reliable third parties” that carry out the identity checks on their behalf. Reliable third parties are, for instance, correspondent banks, which are also subject to the obligations of the EC Directive on money laundering, banks from countries that have comparable money laundering rules, such as US banks, or Austrian consulates abroad. A customer may not open an account if his or her identity cannot be established, i.e. in case of correspondence by letter or by telephone. Therefore, the opening of accounts by correspondence, telephone and, according to the jurisprudence of the Austrian Supreme Court, by fax, is not possible. 12. STEPS TAKEN TO INCREASE AWARENESS OF THE PHENOMENON OF MONEY LAUNDERING The Association keeps its members informed of legislative developments. Audiovisual aids have been made available. Internal training is organised within banks. 3 Austria BELGIUM 1. MONEY LAUNDERING LEGISLATION The EC Directive has been transposed in various stages: - Article 2 of the EC Directive (prohibition on money laundering) was transposed into the law of 17 July 1990. Under this law, moneylaundering constitutes the criminal offence of possession and handling of stolen goods (“recel”) "in the broad sense"; - The rules on banking practices laid down in the EC Directive (Articles 3, 4, 5 and 11) were first set out in a circular issued by the Banking and Finance Commission (BFC) on 17 July 1991 addressed to the credit sector. These standards have since been confirmed in the law of 11 January 1993 (the scope of which is broader as regards rationae personae). As far as substance is concerned, the circular and the law generally concur. However, there are some differences: 9 first, the obligations imposed under the circular are more detailed, and consequently more concrete, than those provided for under the law; 9 secondly, the law sometimes proposes alternative solutions with regard to detailed implementation of ethical obligations; 9 thirdly, in contrast with the law, the circular also imposes obligations on branches of Belgian banks established abroad. The Banking and Finance Commission (BFC) published an update of its circular in September 1993 that took into account the conclusions which could be drawn from the law of 11 January 1993 (the circular has subsequently been updated following the adaptations made to the regulations; the latest circular dates from May 1999). - The disclosure obligation was formalised in the law of 11 January 1993 and became applicable on 1 December 1993, with the setting up of the unit responsible for disclosures; - The law of 11 July 1994 extending the offences covered to illegal trafficking in hormones; - The law of 7 April 1995 extending the offences covered to illegal trafficking in human tissues and organs, fraud damaging the interests