23 January 2018 The Council of Ministers adopted a draft law to counter money laundering and terrorist financing. The aim of the new law adopted by the Council of Ministers is first and foremost to harmonise regulations with European rules on the prevention of these activities.
20 May 2015 European Parliament adopted Directive 2015/849 on the prevention of the use of the financial system for money laundering or terrorist financing. The aim of the Directive is to ensure the security of the financial sector by preventing the use of the European Union's financial system for these purposes.
Security also involves maintaining the stability and integrity of the financial sector as well as strengthening the Union's internal market.
Remember the need to adapt to the changing international recommendations – Financial Action Task Force – and to pursue a coherent policy towards countries third, which show shortcomings in their anti-terrorism activities.
Adaptation of Polish legislation
Therefore, 23 January 2018 The Council of Ministers adopted a draft law to counter money laundering and terrorist financing. The aim of the new law adopted by the Council of Ministers is first and foremost to harmonise regulations with European rules on the prevention of these activities.
The essence of the solutions included in the draft law is to amend the definition of ‘real beneficiary’, which is understood as a natural person or natural persons exercising direct or indirect control over the client (through their powers which arise from legal or factual circumstances, enabling them to exercise decisive influence over the activities or activities undertaken by the client, as well as by a natural person or natural person) or who have the ability to derive economic benefits from the activities of that client.
This definition has also been extended to include the concept of a natural person having more than 25% the total number of votes in the client body (as a pledge or user) or on the basis of agreements with other voting rights.
Furthermore, the definition of trust client was added to the founder, trustee, supervisor (if established) and beneficiary.
The original definition of the real beneficiary raised a lot of doubts, resulting in the inability to fully identify the customer’s ownership structure. In many cases, identification ended with first structure level.
The lack of ability to identify individuals who would have met the criteria set out in the previous definition or the exhaustion of the tools to establish it resulted in a lack of further verification.
It should also be pointed out that the difficulties of defining the real beneficiary arise from the lack of a customer-beneficiary relationship.
The provisions on the obligations of the obliged institution, including the identification of the beneficial owner, are also to be amended. The practice of establishing the beneficiary on the basis of a customer’s statement will no longer be applicable, as an objective verification of the information contained in the statement is not possible.
Central Register of Real Beneficiaries
The next proposed changes are the creation of an information system for the processing of information about real beneficiaries, called the ‘Central Register of Real Beneficiaries’, on which the Minister responsible for Finance is responsible.
The information contained in the register would include: name, nationality, country of residence, PESEL number or, in the case of persons not holding the PESEL number, date of birth and information on the shares held by the beneficial owner.
This system is intended to identify the links between economic operators as well as the entities for which transactions will be carried out. It is crucial to show who actually benefits from the activity of an entity that owns or controls.
However, in this case, it should be remembered that the Ministry of Finance has not left itself any tools to verify the data reported in the register. In addition, economic operators may not have actual beneficiary data (in the case of complex international structures).
The new bill also introduces new rules for blocking bank accounts and stopping transactions. Furthermore, the list of obliged institutions which are required to report to the General Financial Information Inspector on certain transactions has been expanded.
Cooperation between the General Inspector and the competent authorities of other countries, international organisations, foreign institutions that deal with the prevention of money laundering or terrorist financing may take place, inter alia, on the basis of agreements concluded.
Law is a very important element of any international organisation as well as of the state. It regulates processes between the institutions, the Member States and the citizens of the European Union. Close cooperation between EU countries and fair implementation of legal acts will have grounds to prevent money laundering and terrorist financing. It is important that the implementation and application of new regulations effectively influence the detection of money laundering and terrorist financing offences.
Author:
Marta Zawadzka
Marta Zawadzka graduated from the National Security Department of the National Defence Academy, specialist in security and information protection. She participates in numerous seminars and practical workshops on strategic planning, management, information security and information analysis.
Related to Russell Bedford's Chancellery since May 2016, where it handles economic operators in international tax planning.