MLD4

Commission Publishes Delegated Regulation Supplementing MLD4

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On May 14, a Delegated Regulation ((EU) 2019/758) supplementing the Fourth Money Laundering Directive ((EU) 2015/849) (MLD4) with regulatory technical standards (RTS) specifying the minimum action and the type of additional measures credit and financial institutions must take to mitigate money laundering and terrorist financing risk in certain third countries was published in the Official Journal of the EU (OJ). READ MORE →

European Commission Adopts New Delegated Regulation Identifying High-Risk Third Countries under MLD4

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On February 13, the European Commission adopted a Delegated Regulation (C(2019) 1326 final) which supplements the Fourth Money Laundering Directive ((EU) 2015/849) (“MLD4“) by identifying 23 high-risk third countries with strategic deficiencies. The Delegated Regulation will repeal Delegated Regulation (EU) 2016/1675 which currently lists 16 countries as high-risk. READ MORE →

Council of EU Adds Pakistan to List of High-Risk Third Countries Under MLD4

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The Council of EU published the minutes of a meeting held in its configuration as the General Affairs Council (12279/18) on September 18, 2018.

On page 13 of the minutes, the Council confirms that it will not object to the addition of Pakistan to the list of high-risk third countries set out in Commission Delegated Regulation (EU) 2016/1675, which supplements the Fourth Money Laundering Directive ((EU) 2015/849) (“MLD4“).

The European Parliament will now consider the Delegated Regulation and decide whether to raise an objection. If the Parliament does not object, the Delegated Regulation will be published in the Official Journal of the EU (the “OJ“). It will enter into force 20 days after its publication in the OJ and will apply from that date.

New EU and UK Anti-Money Laundering Rules: The Fifth AML Directive Extends to Cryptocurrencies

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The Fifth Anti-Money Laundering Directive (“MLD5“) entered into force in July 2018. MLD5 updates the legal framework under the Fourth Anti-Money Laundering Directive (“MLD4“) and must be implemented by the EU member states by January 2020. In response to the growing concerns over terrorist financing and the revelations of the Panama Papers, the amendments in MLD5:

  • increase transparency with respect to the beneficial ownership registers, which EU member states are required to establish under MLD4;
  • clarify and harmonize the enhanced due diligence measures that need to be applied to business relationships or transactions involving “high risk third countries”;
  • require EU member states to create and maintain a list of public functions that qualify as “politically exposed persons” or “PEPs” in their jurisdiction;
  • restrict the anonymous use of prepaid cards in order to mitigate the risk that they may be used for terrorist financing;
  • grant new powers for financial intelligence units, including the power to request, obtain and use information from any obliged entity based on their own analysis and intelligence, rather than just when triggered by a prior suspicious activity report; and
  • require member states to establish centralised registers or data retrieval systems to enable financial intelligence units and national competent authorities to access information about the identities of holders of bank and payment accounts and safe-deposit boxes.

In addition to these broad objectives, MLD5—for the first time—brings certain virtual currency service providers within the scope of EU anti-money laundering and terrorist financing regulations. Click here to read the full Orrick-authored alert.

ESMA Statements on ICO Risks for Firms and Investors

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Following the European Securities and Markets Authority‘s (“ESMA“) observation in rapid-growth initial coin offerings (“ICOs“)s, on November 13, 2017, ESMA issued two statements on ICOs.

ESMA notes in a statement for firms that where ICOs qualify as financial instruments, it is likely that the firms involved in ICOs will be conducting regulated investment activities, whereby they need to comply with the relevant legislation, including:

  • Markets in Financial Instruments Directive (2004/39/EC) (“MiFID“). Where the coin or token qualifies as a financial instrument, the process by which a coin or token is created, distributed or traded is likely to involve some MiFID activities and services, such as placing, dealing in or advising on financial instruments.
  • Alternative Investment Fund Managers Directive (2011/61/EU) (“AIFMD“). An ICO scheme could qualify as an alternative investment fund (“AIF“), to the extent that it is used to raise capital from a number of investors, with a view to investing it in accordance with a defined investment policy.
  • Prospectus Directive (2003/71/EC) requires publication of a prospectus before the offer of transferable securities to the public or the admission to trading of such securities on a regulated market situated or operating within a member state. Also, the Prospectus Directive specifies that the prospectus should contain the necessary information that is material to an investor for making an informed assessment of the facts and that the information shall be presented in an easily analyzable and comprehensible form.
  • Fourth Money Laundering Directive ((EU) 2015/849) (“MLD4“).

ESMA stresses that any failure by firms to comply with the applicable rules will constitute a breach. Firms involved in ICOs must give due consideration as to whether their activities constitute regulated activities.

A statement for investors by ESMA also alerts them of the high risk of losing all of their invested capital as ICOs are highly speculative investments. ICOs are vulnerable to the risk of fraud or money laundering.

Depending on how they are structured, ICOs may fall outside of the scope of EU law and regulations, in which case investors cannot benefit from the protection that these laws and regulations provide. Also, the price of the coin or token is typically extremely volatile, and investors may not be able to redeem them for a prolonged period.

Council of the EU Presidency Compromise Proposal on MLD4

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On March 3, the Council of the EU published a compromise proposal (dated January 28, 2014) on the European Commission’s proposed Directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (known as the Fourth Money Laundering Directive or MLD4).

MLD4 will amend and replace the Third Money Laundering Directive and is designed to further strengthen the EU’s defenses against money laundering and terrorist financing, while also ensuring that the EU framework is aligned with the Financial Action Task Force standards.  Compromise Proposal.

European Parliament Committee Publishes Opinion on Money Laundering Directive 4

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On January 7, the European Parliament published an opinion, written by its Committee on Legal Affairs (or JURI) relating to the Directive that is proposed to amend and replace the Third Money Laundering Directive (2005/60/EC) (or MLD3).

JURI’s opinion on the new Directive or the Fourth Money Laundering Directive (MLD4) is addressed to the European Parliament’s Economic and MLD4Committee (ECON) and its Civil Liberties, Justice and Home Affairs Committee (LIBE), who are expected to vote on a draft report on January 22.  The opinion sets out detailed amendments that JURI believes should be made to MLD4 on a range of matters, including whistleblowing, personal data and beneficial ownership information.

MLD4 is expected to come before the European Parliament in March 2014, with the new regime likely to come into force some time in 2016.  Opinion.

UK House of Commons Scrutinizes MLD4 and Revised Wire Transfer Regulation Proposals

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On January 2, the United Kingdom House of Commons Scrutiny Committee published its 28th Session 2013-2014 report.  In particular, the report considers the European Commission’s proposed MLD4 Directive on money laundering and terrorist financing and the proposed Wire Transfer Regulation.

Areas of concern over MLD4 highlighted in the report include supranational risk assessments, e-money, politically exposed persons, third country policy and sanctions and supervision.  Report.

Council of EU Publishes UK Issues Paper on MLD4

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On November 24, the Council of the European Union published a note (dated November 8, 2013) from the Council Presidency to Council Delegations which includes a UK issues paper on the fourth Money Laundering Directive (MLD4).  The issues paper states that the UK welcomes MLD4, but notes certain points for discussion.  In particular, the UK highlights the issue of beneficial ownerships of companies and misuse of trusts.

The UK suggests that central registries of company beneficial ownership would help to break through corporate secrecy and reveal who truly owns companies.  To further this aim, the UK has pledged to make the UK’s central registry of company beneficial ownership publically accessible.  The UK is also taking part in an automatic information exchange pilot with France, Italy, Spain and Germany in order to tackle tax evasion and the use of trusts for illegal purposes.

According to an EU press release, these issues were discussed at the November 2013 ECOFIN conference.  Note.  Press Release.