terça, 10 novembro 2020

New Money Laundering and Terrorist Financing prevention rules in Portugal

VolverLaw no. 58/2020 of 31 August, which has transposed Directive (EU) 2018/843, also known as the 5th AML Directive (Anti-Money Laundering Directive) into the Portuguese legal system, became effective on 1 September. Multiple legal documents were changed and new rules introduced in the legal scheme against Money Laundering and Terrorist Financing (MLTF) and the legal scheme for the Central Registration of Beneficial Owners (CRBO). As to Money Laundering and Terrorist Financing (MLTF), the new legal document made a number of changes that concerned mostly the reinforcement of the transparency in the identification of beneficial owners.

The definitions of “money laundering”, “close relatives”, and “unincorporated associations of collective interest” were changed and the number of financial and non-financial entities encompassed was increased. This way, financial entities that are now obliged are, among others, companies that manage credit securitisation funds, ancillary insurers that operate in the area of Life Insurance, and Real Estate Investment and Management Companies. As to the non-financial entities, economic operators that perform auction or lending activities and all entities that perform any activity involving virtual assets were also included.

Now the Money Laundering Act also applies to natural and legal persons who operate in Portugal in the capacity of agents for payment institutions with registered offices in another Member State of the European Union. Another innovation was the regulation of the legal scheme for entities that perform activities involving virtual assets, which are now obliged to register with Banco de Portugal, among many other obligations.

The new scheme also sets forth that the obliged entities must gather proof of the information in the CRBO and that the establishment or continuity of the business relationship depends on such registration.

Law 58/2020 also establishes that data must be updated by the obliged entities whenever there is any reason to doubt that they are true, accurate or up-to-date, any suspicion of practices related to MLTF, or whenever they are obliged by law to update such data.

As to the non-disclosure duty, the new legal document sets forth that information can be disclosed by obliged companies to financial entities and by the latter to another entity of equivalent nature based in another Member State, provided that they belong to the same group, which comes to change the previous scheme that established that such disclosure was irrespective of the existence of a group relation.

As mentioned, Law 58/2020 also changed the legal scheme for the Central Registration of Beneficial Owners (“CRBO”) in the sense of clarifying such scheme. Certified accountants are now presumed to have representation powers, which did not happen before.

For commercial companies, the declaration of beneficial owners required the identification of the holders of the share capital with a description of the respective equity and identification of managers, administrators, or anyone who managed or administered the entity subject to the CRBO. This was revoked and now the declaration only requires information about the entity, beneficial owners, and declarant.

The obliged entity is further obliged to describe the chain of control and identify the entities that form such chain, for purposes of presenting the circumstances that prove the capacity of beneficial owner and economic interest held.

This Law sets forth that the initial declaration of the beneficial owner must be made within 30 days, and also establishes the need to update the information in the CRBO or the confirmation that the information is up-to-date so that the voluntary dissolution of the obliged entity can proceed. On the other hand, the confirmation of the accuracy, completeness, and up-to-dateness of the information in the CRBO can be made via an annual declaration by 31 December.

Lastly, in addition to the partners, the natural persons who hold shares, even if indirectly via third parties, and those who have effective control, in any way, are now responsible for informing the company about any change in their identification details.

The team of lawyers of the Commercial and Corporate Law Department of Belzuz Abogados S.L.P. – Sucursal em Portugal is widely experienced in providing legal counselling to national and international companies and can be an important help in the implementation of the standards concerning the prevention of MLTF and the legal scheme for the CRBO.

 Luis Filipe Faria Luis Filipe Faria 

Departamento Direito Comercial e Societário | (Portugal)

 

Belzuz Abogados SLP

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