On 31 October 2021 entered into force second part of the amendment Act dated 1 March 2018 to prevent money laundering and terrorist financing. The changes introduced are an implementation into the Polish legal order Directive (EU) of the European Parliament and of the Council of 30 May 2018 amending Directive 2015/849 on the prevention of the use of the financial system for money laundering or terrorist financing and amending Directive 2009/138 and Directive 2013/36/ EU (hereinafter referred to as the V AML Directive).
The purpose of the Amending Act, to the extent applicable from 31 October this year, is the introduction of obligations to entrepreneurs to seal the anti-money laundering and terrorist financing system.
first a change worth discussing is to extend the list of entities subject to registration in the Central Register of Real Beneficiaries. Until now the entry was subject to: public limited liability companies, limited liability companies, limited liability companies, simple limited liability companies, public limited liability companies. The amendment extended the catalogue to the following entities:
- (b) establish economic relations or acquire real estate in Poland on behalf of or on behalf of the trust,
- partnerships,
- European economic interest groups,
- European companies,
- cooperatives,
- European cooperatives,
- associations subject to registration in the KRS
Foundations.
It should be pointed out that the above entities which were active before 31 October 2021, have time to submit a notification to the CRBR by 31 January 2022 Newly created entities, i.e. rod 31 October 2021, are required to submit a notification to the CRBR within the time limit 7 working days from the date of entry of the entity in the National Court Register. For failure to submit a notification within the time limit, that entity may be fined up to 1,000,000. zł.
In order to make it easier for the disclosure entities in the CRBR to be informed of the beneficial owners, an obligation was introduced to interact with the beneficial owner. The disclosing entity in the CRBR may from now on require the beneficiary to provide all the necessary real beneficiary data. In the absence of such data, the actual beneficiary may be fined a fine of 50,000 PLN.
In addition, 31 October 2021 the accuracy of the entry in the CRBR will be subject to review. First, that institution is required to verify the data contained in the customer register and then record any discrepancies between the data in the CRBR and the actual beneficiary of its client established by it.
The difference then noted must be notified to the Minister of Finance, who will be able to open an investigation in such a case, to determine whether the information provided in the CRBR is correct and up to date.
In the event of a finding of irregularities, the Minister of Finance may correct these data ex officio and, for the fact that the beneficial owner is not indicated in accordance with the facts, may be punished by an entity with a financial penalty of 1,000,000 PLN.
This means that the institutions are subject to an obligation to verify the accuracy of the data posted by their customers, which de facto means that the institutions are required to be, as it were, a control body of the first degree in relation to the Minister of Finance.
Each verification of the data provided by clients of the obliged institutions is an additional sealing of the anti-money laundering and terrorist financing system.
However, it may be very difficult for institutions to carry out an additional obligation, since the verification of the beneficial owner’s data sometimes requires an accurate examination of the structure of their clients’ internal relations.
An important change is also the extension of the penalty for not updating the data in the CRBR. So far, the entities required to report information about the real beneficiaries may have been fined 1,000,000 PLN for lack of notification, the amendment extends this penalty also for the shoulder of data update in the CRBR.
The amendment also amended the financial security measures applied by the obliged institutions.
In accordance with the new rules, the obliged institution should apply financial security measures in the event of a change of the entity or its beneficiary, and where the institution under the law is obliged to contact the customer during the year in question to verify information concerning its beneficial owners.
This obligation derives, inter alia, from provisions Act dated 9 March 2017 on the exchange of tax information with other countries.