On 21 March 2017, the first political trilogue on the Commission proposals to amend the 4th Anti-Money Laundering Directive (4AMLD), proposed in July 2016, on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing took place at the European Parliament (EP).
In the wake of the ‘Panama Papers’ scandal the Commission has been intent on cracking down on the hiding of illicit funds by adopting a coordinated approach at both EU and international level.
The EP, Commission and Council have expressed their willingness to engage in negotiations with a view to a swift agreement, and the EP stressed the importance of transparency in fighting money laundering.
Beneficial ownership debate
STEP has concerns about some of the proposals to amend the Directive. In particular, the requirement for member states to set up publicly accessible central registers for the mandatory registration of the beneficial owners (BO) of all trusts (not just those with tax consequences), and similar legal arrangements (Articles 30-31).
The general consensus of the majority of member states is that the BO information on these registers should be publicly accessible. STEP is arguing that a publicly accessible register is likely to infringe data protection rights, the right for private and family life guaranteed by Article 7 of the EU Charter of Fundamental Rights, and Article 8 of the European Convention on Human Rights.
Publishing details of beneficiaries, particularly vulnerable beneficiaries, would leave them seriously exposed to potential abuse, given the risk of such information falling into the wrong hands and being disseminated for illegitimate purposes.
The state of negotiations:
• The definition of the BO of a company or trust remains in dispute.
• There are questions whether the information on the registers should be publicly accessible and if not, who should be granted access?
• Should registration of a BO be required where the activities are carried out, or where the entity is owned?
• MEP Judith Sargentini is hoping to reduce the threshold for the identification of a BO from 25% to 10% ownership. The Commission continues to state that this should only be the case if it’s a high-risk entity.
The trilogue parties intended to reach an agreement by the end of the Maltese Presidency on 30 June 2017, but the EP has stated it will be difficult to conclude it by then. Estonia takes over the Presidency on 1 July.
The next meetings are on 29 May, 7 June, 28 June 2017.
4AMLD – UK’s obligations
In the meantime 4AMLD implementation into national law is required by 26 June 2017.
The UK’s newly published draft of the Money Laundering Regulations 2017 will be its instrument to transpose the directive. This will revoke and replace the Money Laundering Regulations 2007.
The UK is required to implement a central register of trusts on 26 June, which will apply to worldwide trusts with UK assets that generate a tax consequence. The Directive leaves it to each member state to decide the level of transparency to be applied and the UK has confirmed that access to this register will be limited to law enforcement agencies on the grounds of privacy (see HMRC consultation on 4AML implementation).
The corresponding German bill has faced scrutiny at the committee stage whereby some of its members were pushing for full public access but other members have rejected a fully public registry of company and trust beneficial ownership. The bill will be subject to revision before it is enacted but it is unlikely that public access will be granted.
STEP will continue to monitor the progress on 4AMLD and the revised Directive and keep members updated accordingly.
Emily Deane TEP is STEP Technical Counsel