teaha2020

Preventing and combating money laundering – Modifications and completions

In the Official Gazette number 620 of July 15, 2020, was published EMERGENCY ORDINANCE (OUG) no. 111 of July 1, 2020, on amending and supplementing Law no. 129/2019 for preventing and combating money laundering and terrorist financing, as well as for modification and completion of some normative acts, for the completion of art.218 of the Government Emergency Ordinance no. 99/2006 on credit institutions and capital adequacy, for amending and supplementing Law no. 207/2015 on the Fiscal Procedure Code, as well as for completing art. 12 paragraph (5) of Law no. 237/2015 on authorization and supervision insurance and reinsurance activity.

The authorities and institutions provided in par. (1), when acting in the field of application of this law, shall cooperate in the elaboration and implementation of policies and activities to combat money laundering and terrorist financing.

In applying the provisions of paragraph (3), the authorities and institutions provided in para. (1) Lett. a), b) and d) send to the Office information on the fulfillment of their responsibilities, according to the action plan established by the national risk assessment, the way in which they collaborate with other authorities and, insofar as this information is available, the financial resources and human resources allocated to preventing and combating money laundering and terrorist financing.

The Office centralizes the information received according to par. (61) and submits a report to the European Commission on measures taken to prevent and combat money laundering and terrorist financing in accordance with the action plan established by the national risk assessment, the authorities involved, each contribution, internal cooperation, human and financial resources allocated to combating money laundering and terrorist financing.

The Office may provide relevant additional information to the other Member States carrying out the risk assessment, as appropriate. A summary of the risk assessment and its updates, which do not contain classified information, shall be made available to the public by posting on the Office’s website.

The National Integrity Agency draws up the list of important public positions provided in the national legislation, mentioned in par. (2) Lett. a) – g), based on the data and information transmitted immediately by the entities in charge of which this obligation resides. The National Integrity Agency updates this list based on the data and information communicated by the entities in charge of this obligation, sent no later than 5 days from the date of the change intervention.

The international organizations accredited on the Romanian territory immediately draw up the list of important public positions, in the sense of par. (2) Lett. h), which they send to the National Integrity Agency. The National Integrity Agency updates this list based on the data and information communicated by the international organizations accredited on the Romanian territory, transmitted no later than 5 days from the date of the change intervention.

The lists provided in par. (31) and (32) are published on the website of the National Integrity Agency in a structured form and are transmitted, exclusively by electronic means of communication, whenever required, to the European Commission.

The National Integrity Agency establishes, through a methodology approved by its president, the transmission method, as well as the structure of the data and information to be managed/reported and will communicate the chosen method to the entities in charge of this obligation. “

For the purposes of this law, the real beneficiary means any natural person who ultimately owns or controls the client and/or the natural person in the name or in whose interest a transaction, operation or activity is carried out, directly or indirectly.

The definition of real beneficiary includes at least:

  1. in the case of companies subject to registration in the trade register and foreign corporate entities
  1. The natural person or persons who ultimately own or control the company subject to registration in the trade register by exercising directly or indirectly the ownership of a sufficient percentage of the number of shares or voting rights or by participating in the company’s equity respectively, including by holding bearer shares, or by exercising control by other means, other than a company listed on a regulated market that is subject to disclosure requirements in accordance with European Union law or equivalent international standards that ensure appropriate transparency of the information regarding the exercise of the property right. The possession of 25% plus one share or participation in the capital of a company in a percentage of over 25% by a natural person is an indication of the direct exercise of the property right. Holding 25% plus one share or participation in the capital of a company in a percentage of over 25% by a foreign corporate entity, which is under the control of a natural person, or by several foreign corporate entities, which are under the control of the same natural person, it is an indication of the indirect exercise of the property right;
  2. if, after all due diligence and provided there are no grounds for suspicion, no person is identified in accordance with point 1 or if there is any doubt that the identified person is the real beneficiary, the natural person occupying a senior management position, namely: the administrator/administrators, members of the board of directors / supervisory board, directors with delegated competencies from the director /board of directors, members of the board of directors. The reporting entities shall keep records of the measures taken to identify the beneficial owners in accordance with point 1 and this point, as well as of the difficulties encountered in the process of verifying the identity of the real (beneficial) owner;
  3. in the case of trusts or similar legal constructions – all the following persons:
  1. the constituent (s), as well as the persons designated to represent his / her interests in accordance with the law
  2. trustee /trustees;
  3. the beneficiary/beneficiaries or, if his / their identity is not identified, the category of persons in whose main interest the trust or similar legal construction is constituted or operates;

4  any other natural person exercising ultimate control over the trust or similar legal construction under foreign law by direct or indirect exercise of the right of ownership or by other means;

  1. in the case of non-profit legal entities:
  1. associates or founders;
  2. members of the board of directors;
  3. the persons with executive functions empowered by the board of directors to exercise its attributions;
  4. in the case of associations, the category of natural persons or, as the case may be, the natural persons in whose main interest they have been constituted, respectively, in the case of foundations, the category of natural persons in whose main interest they have been constituted.