At the time of undertaking these lines, I am organizing a conference within the scope of the Trade Association of Small and Medium Law Firms of Catalonia (PIMED) (https://pimedadvocats.cat/) on the new obligations to prevent money laundering capitals imposed on professionals, which will be taught by a prestigious specialist at the end of the month.
In this goal are (or should be) immersed all professionals, training and organizing our work to fulfill these obligations. But I think it is important that customers also understand our information requirements and collaborate, since it is a task that is imposed to us.
The new Royal Decree Law 11/2018, which transposes the Directive 2015/849 of the European Union to prevent money laundering, represents a considerable increase in the obligations of the professionals with regard to the identification and monitoring of operations in which these professionals intervene, at any extent.
These new obligations involve maintaining a vigilant attitude regarding the knowledge of customers and their operations. This supposes a considerable overload, uncomfortable for both the professional and the client, who is focused on providing data on their economic sphere. This function, which banks are already deploying very incisively, is sometimes exaggeratedly extended to any professional, doubling or tripling the control already carried out in other instances, through which it has been previously passed.
In this matter, as it is so many others, the Administration transfers its responsibility to the individuals, multiplying, in addition, the possible liable subjects, in case of slippage. The law requires us, then, a series of obligations that we summarize below, because we understand that it is important that the individuals required for information know that it is not an extreme zeal, but an imposed obligation:
The Law obliges us to formally identify our clients. This means that, if the client is a natural person, we must ask them for their TIN (N.I.F) if they are a Spanish national, or their passport or identity card issued by the authorities of the country of origin (foreigners from EU/EEA Member States), or their passport, residence card or foreigner’s identity card in the case of foreigners from non-EU or non-EEA countries. If our client is a legal person, we must identify it by means of registry reports and a documentary review of the identity of anyone acting on behalf of said legal person and all those participating therein.
The Law obliges us to identify the beneficial owner of the business or transaction, as well as to take measures to verify said identity. In other words, we have to identify the person on whose behalf our clients are acting prior to accepting the professional assignment, with the signing of a sworn statement by the client or the natural person with a power of attorney to represent the legal person.
The Law obliges us to acquaint ourselves with the purpose and intended nature of the business relationship. In other words, we need to have specific knowledge of our client’s professional and/or business activities, which must be checked by reviewing any supporting documentation it has provided, or by obtaining information from reliable independent sources.
The Law obliges us to perform ongoing monitoring of our business relationship with our clients. This entails retaining the data we hold updated to ensure they are in line with current realities, despite the passage of time. All information is therefore kept up to date.
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Juan Núñez – Lawyer