Explanatory Memorandum to the Anti-Money-Laundering Law of 18 September 2017 - Articles 11 and 12
Article 11 of the draft Law transposes Article 46, paragraph 1 of Directive 2015/849 and takes over the current provisions of Article 17, first paragraph, of the Law of 11 January 1993 as well as further developing them. This Article is pursuant to Article 8, § 2, 3° of the present draft and supplements it. Whilst this latter Article provides for the obligation of informing the persons concerned about ML/TF risks and training them on the measures implemented to reduce such risks, draft Article 11 covers only the second aspect. It should also be noted that draft Article 9, § 2, first paragraph gives the AMLCO the responsibility of ensuring the education and training of the persons involved.
Based on this, § 1 of draft Article 11 describes what the training of the persons concerned should involve in practice, i.e. essentially:
- the general legal framework that applies in the area of AML/CFT, and
- the policies, procedures and internal control measures in force within the obliged entity, in line with the general legal framework.
The second paragraph specifies that the obliged entities should not content themselves with offering a purely theoretical training course but must ensure that the persons concerned are genuinely able to apply the measures in force and, in particular, to identify suspicious transactions and in such cases to proceed in a proper and appropriate way.
Finally, the third paragraph states that the obliged entities must ascertain that the persons concerned are aware of the internal reporting procedures referred to in Article 10 and of the procedures for reporting to the supervisory authorities as referred to in Article 90 of the draft Law. This knowledge is after all indispensable for these procedures to be effective.
Paragraph 2 of draft Article 11 states that it does not suffice to offer a one-off training course to those concerned, for example when they join the company, but rather that the obliged entities must offer ongoing training. The objective of this is to ensure that account is taken of the changeable nature of ML/TF risks and of the legal, regulatory and procedural framework of AML/CFT. In contrast, § 2 allows the intensity and thoroughness of the training given as well as the frequency of updates to courses to be determined based on the functions and responsibilities of the persons concerned, to take into account their potentially different levels of exposure to ML/TF risks by virtue of the tasks and responsibilities they undertake.
Draft Article 12 relates to the obliged entities listed in draft Article 5, § 1, 23° to 25° and transposes Article 46, point 1, third paragraph of Directive 2015/849 which provides for the following: “Where a natural person falling within any of the categories listed in point (3) of Article 2(1) performs professional activities as an employee of a legal person, the obligations in this Section shall apply to that legal person rather than to the natural person”. Lawyers, bailiffs, notaries, and estate agents always have independent status even if they exercise this activity for a legal firm which is a legal person, for a notary firm or bailiff firm, or an estate agent. It is a different matter, however, for accounting professions. They may have the title of company auditor, auditor, chartered accountant or tax consultant and exercise that profession as an employee of a company that also has the capacity of company auditor, audit firm, chartered accountant or tax consultant.