Act No. 368 / 2016 Coll.
Act amending Act No. 253 / 2008 Coll., on certain measures against the legalisation of proceeds from crime and terrorist financing, as amended, and other related laws
Valid
Law
Effective from 01.01.2017
Contents
ČÁST PRVNÍ
Čl. I
㤠9
㤠13a
㤠14
§ 15
㤠21a
㤠24a
㤠29b
§ 29c
§ 29d
㤠30a
㤠45
㤠51a
㤠52a
Čl. II
ČÁST DRUHÁ
Čl. III
ČÁST TŘETÍ
Čl. IV
„ČÁST ČTVRTÁ
§ 118b
§ 118c
§ 118d
§ 118e
§ 118f
§ 118g
§ 118h
§ 118i
§ 118j
ČÁST ČTVRTÁ
Čl. V
ČÁST PÁTÁ
Čl. VI
ČÁST ŠESTÁ
Čl. VII
ČÁST SEDMÁ
Čl. VIII
ČÁST OSMÁ
Čl. IX
ČÁST DEVÁTÁ
Čl. X
ČÁST DESÁTÁ
Čl. XI
ČÁST JEDENÁCTÁ
Čl. XII
㤠16b
Čl. XIII
ČÁST DVANÁCTÁ
Čl. XIV
ČÁST TŘINÁCTÁ
Čl. XV
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368
THE LAW
of 19 October 2016
amending Act No 253 / 2008 Coll., on certain measures against the legalisation of proceeds from crime and terrorist financing, as amended, and other related laws
Parliament has decided on this law of the Czech Republic:
Amendment of the Act on certain measures against the legalisation of proceeds from crime and terrorist financing
Act No. 253 / 2008 Coll., on certain measures against the legalisation of proceeds from crime and terrorist financing, as amended by Act No. 227 / 2009 Coll., Act No. 281 / 2009 Coll., Act No. 285 / 2009 Coll., Act No. 199 / 2010 Coll., Act No. 139 / 2011 Coll., Act No. 420 / 2011 Coll., Act No. 428 / 2011 Coll., Act No. 457 / 2011 Coll., Act No. 18 / 2012 Coll., Act No. 377 / 2012 Coll., Act No. 399 / 2012 Coll., Act No. 241 / 2013 Coll., Act No. 243 / 2013 Coll., Act No. 257 / 2014 Coll., Act No. 166 / 2015 Coll., Act No. 377 / 2015 Coll.
1. In Article 1, the words "European Community1) 'are replaced by the words" European Union1)' and the words "European Community2) 'are replaced by the words" European Union2)';
footnotes 1 and 2 are as follows:
"(1) Directive (EU) 2015 / 849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, amending Regulation (EU) No 648 / 2012 of the European Parliament and of the Council and repealing Directive 2005 / 60 / EC of the European Parliament and of the Council and Commission Directive 2006 / 70 / EC.
(2) Regulation (EC) No 1889 / 2005 of the European Parliament and of the Council of 26 October 2005 on checks on cash entering or leaving the Community. Regulation (EU) 2015 / 847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds and repealing Regulation (EC) No 1781 / 2006. ';
2. in Article 2 (1) (b) (3), the words "with the exception of investment intermediaries (6) ', including footnote 6, are deleted;
3. in Paragraph 2 (1) (b) (4), the words "the pension company and the pension fund" shall be replaced by the words "the pension company."
4. In Article 2 (1) (b) (10), the words "Foreign Exchange Act 'are replaced by the words" Currency Exchange Act'.
5. in Article 2 (1) (c):
"(c) a gambling operator under the gambling law, with the exception of a cash, material, immediate or numerical lottery operator, bingo or raffle game,"
6. In Paragraph 2 (1) (h), the introductory part of the provision reads: "a person not referred to in point (g), providing, in the course of his business or the activities of a trust fund or other legal arrangement without legal personality, another person with a service which consists in '.
7. in Paragraph 2 (1) (h) (2), "other person" is replaced by "other persons."
8. in Paragraph 2 (1) (h) (4), the words "the European Communities" shall be replaced by the words "the European Union";
9. in Article 2 (1), point (i) is deleted;
Points (j) to (l) shall be renumbered as points (i) to (k).
10. In Article 2, at the end of paragraph 1, the dot is replaced by a comma and the following point (l) is added:
"(l) a person providing services linked to a virtual currency which, for the purposes of this Act, means an electronically stored unit, whether or not it has an issuer, and which is not a means of money under the Payment Act but is accepted as payment for goods or services and by another person different from its issuer."
11. in Article 2 (2), point (c) is deleted;
Points (d) and (e) shall be renumbered (c) and (d).
12. in Article 2 (2) (c) and (d):
"(c) an entrepreneur not referred to in paragraph 1 in respect of a cash transaction of EUR 10 000 or more;
(d) a legal person who is not an entrepreneur, where he is authorised to provide as a service one of the activities referred to in paragraph 1, or in a cash transaction of EUR 10 000 or more. ';
13. in Article 2 (3), "(d) and (e)" shall be replaced by "(c) and (d)";
14. In Article 3, at the end of paragraph 2, the dot is replaced by a comma and the following point (c) is added:
"(c) for the purposes of this Act, the financing of the proliferation of weapons of mass destruction referred to in paragraph 3.";
15. In Article 3, the following paragraph 3 is inserted after paragraph 2, including footnote 29:
"(3) The financing of the proliferation of weapons of mass destruction means the collection or supply of funds or other property, knowing that it will, even in part, be used by the proliferation of weapons of mass destruction or be used to promote the proliferation of such weapons in breach of the requirements of international law29).
29) For example, Decree of the Minister of Foreign Affairs No. 61 / 1974 Coll., on the Treaty on the Non-Proliferation of Nuclear Weapons, Decree of the Minister of Foreign Affairs No. 96 / 1975 Coll., on the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Communication of the Ministry of Foreign Affairs No. 14 / 2009 Coll., replacing the Communication of the Ministry of Foreign Affairs published under No 94 / 1997 Coll., on the adoption of the Convention on the Prohibition of the Development, Production, Stocks of Stocks and Use of Chemical Weapons and on their Destrucitation. '
Paragraph 3 shall become paragraph 4.
16. in Article 3 (4), "paragraphs 1 or 2" shall be replaced by "paragraphs 1 to 3";
17. in Article 4 (4) and (5):
"(4) For the purposes of this Act, the beneficial owner shall mean a natural person who has, in fact or in law, the ability to exercise, directly or indirectly, decisive influence in a legal person, trust fund or other legal arrangement without a legal personality. It is considered that when the terms of the sentence are met the first actual owner is
(a) for a commercial corporation, a natural person;
1. which itself or jointly with persons acting in agreement with it has more than 25% of the voting rights of that commercial corporation or has a share of the capital of more than 25%;
2. which itself or jointly with persons acting in agreement with it controls the person referred to in point 1;
3. which is to receive at least 25% of the profits of that corporation; or
4. which is a member of a statutory body, a representative of a legal person in that body, or in a similar position as a member of a statutory body, unless the beneficial owner is or can not be designated under points 1 to 3;
(b) in the case of a society, a community of community owners of units, church, religious society or other legal person under the law governing the status of churches and religious societies,
1. which has more than 25% of its voting rights,
2. which is to receive at least 25% of the appropriations distributed to it, or
3. which is a member of a statutory body, a representative of a legal person in that body, or in a similar position as a member of a statutory body, unless the beneficial owner is or can not be designated under points 1 or 2;
(c) for a foundation, institute, fund of foundations, trust fund or other legal arrangement without legal personality, a natural person or the beneficial owner of a legal person who is in a position to:
1. founder,
2. the trustee,
3. Intended,
4. persons in the interests of whom a foundation, institute, fund of foundations, trust fund or other arrangement without a legal personality has been established or operates, unless it is intended to be used for the purpose of such activities; and
5. persons authorised to supervise the administration of the Foundation, the Institute, the Foundation Fund, the Trust Fund or any other legal arrangement without a legal personality.
(5) For the purposes of this Act, the politically exposed person is:
(a) a natural person who is or has been in significant public office with national or regional significance, such as the Head of State, the Prime Minister, the Head of the Central Authority and its representative (Deputy, Secretary of State), a Member of the Parliament, a Member of the Political Party Management Body, a Head of the Territorial Authority, a Judge of the Supreme Court, a Constitutional Court or any other Supreme Jurisdiction Body whose decision, in general except for exceptions, cannot be invoked, a member of the Central Bank's Banking Board, a High Officer of the Armed Forces or a College, a member or a representative of a member, if he is a legal person, a commercial body controlled by a State, an ambassador or a head of a diplomatic mission, or a natural person having a similar function in another State, an institution of the European Union or an international organisation;
(b) a natural person who:
1. close to the person referred to in point (a);
2. a partner or beneficial owner of the same legal person, trust fund or other legal arrangement without a legal personality, as the person referred to in (a), or known to the obliged person to be in any other close business relationship with the person referred to in (a); or
3. the beneficial owner of a legal person or, where appropriate, a trust fund or other legal arrangement without a legal personality known to the obliged person to be created for the benefit of the person referred to in point (a). ';
18. in Paragraph 4 (7):
"(7) Correspondence relationship for the purposes of this Act means:
(a) the provision of banking services by one bank as a correspondent bank to another bank as a respondent bank, including the provision of a current or other account and related services such as cash management, international transfers of funds, cheque settlement, ongoing correspondent accounts and foreign exchange services; or
(b) relations between credit institutions, between financial institutions or between credit and financial institutions, including relations created for the purpose of transactions in securities and transfers of funds in which the correspondent institution is provided to the respondent institution with similar services as (a). ';
19. In Article 4, paragraphs 8 to 11 are added:
"(8) For the purposes of this Act, the person providing services linked to a virtual currency shall be the person who buys, sells, retains, manages or brokers the purchase or sale of a virtual currency as an object of his business.
(9) Indirect influence is for the purposes of this Act the influence exercised by another person or other persons.
(10) For the purposes of this Act, dissertation with voting rights shall mean the possibility of exercising voting rights on a discretionary basis, regardless of whether and on the basis of which legal reason they are exercised, or the possibility of influencing the exercise of voting rights by another person.
(11) For the purposes of this Act, a close business relationship shall mean a material link in the course of a business activity where the benefit or harm of one person could reasonably be felt by the other person as a benefit or injury of his own. '
20. in Article 5 (b), the words "for persons who are its statutory authority or its member, the information referred to in (a)" shall be replaced by the words "for a natural person who is a member of its statutory authority, the information to establish and verify its identity."
21. in Article 5, at the end of point (b), the dot is replaced by a comma and the following point (c) is added:
"(c) in the case of a trust fund or other legal arrangement without a legal personality, its designation and identification details of its administrator, manager or person in a similar position within the scope of points (a) and (b).";
22. In Article 5, the current text becomes paragraph 1 and the following paragraph 2 is added:
"(2) In addition to the information in paragraph 1, additional identification data such as, in particular, telephone number, e-mail address, employment or employer data may be obtained where justified by the risk assessment provided for in Section 21a. ';
23. In Paragraph 6 (1) of the introductory part of the provision, the words "or that trade is otherwise related or linked to the financing of terrorism" shall be inserted after the words "financing of terrorism."
24. in Article 6 (1), the words "or conduct complex or unusually large transactions" shall be added at the end of the text of point (d).
25. Paragraph 7 (1) reads:
"(1) The obligor shall identify the client at the latest if it is clear that the value of the transaction exceeds EUR 1 000, unless otherwise provided by this law. ';
26. in Article 7 (2), point (c) is deleted;
Points (d) to (g) shall be renumbered (c) to (f).
27. in Article 7 (2), point (d) is deleted;
Points (e) and (f) shall be renumbered as points (d) and (e).
28. In Article 7, the following paragraph 4 is added:
"(4) The mandatory person for each type of transaction which is not covered by paragraph 2 shall determine, on the basis of the risk assessment in accordance with § 21a, the value of the transaction at which the client is always identified. This value may not exceed the amount referred to in paragraph 1. ';
29. In Paragraph 8, the following paragraph 3 is inserted after paragraph 2:
"(3) As part of the client identification, the obligor finds and records whether the client is not a politically exposed person or is not the person against whom the Czech Republic applies international sanctions under the Act on the implementation of international sanctions."
Paragraphs 3 to 8 shall be renumbered paragraphs 4 to 9.
30. Paragraph 8 (5) reads:
"(5) Where a client is represented by a legal representative or guardian, the identification of the legal representative or guardian shall be carried out in accordance with paragraph 2. The legal representative shall provide evidence of the identification of the represented person, the guardian shall also submit the relevant court decision. ';
31. in Article 8 (7), the words "or reason" shall be replaced by the words "the justification for a simplified customer check (§ 13) or" and the text "§ 13" shall be replaced by "§ 13a."
32. Article 9, including the title, reads:
Customer control
(1) The customer check is carried out by the mandatory person
(a) prior to the execution of a trade outside a business relationship
1. not later than the time when it is clear that it will reach a value of EUR 15 000 or more,
2. with a politically exposed person, or
3. with a person established in a country who, on the basis of the European Commission designation or for other reasons, is to be considered to be at high risk;
(b) in situations covered by the identification obligation referred to in Article 7 (2) (a) to (c) at the latest before the transaction takes place;
(c) within the duration of the business relationship;
(d) referred to in Paragraph 2 (1) (c) in a transaction of EUR 2 000 or more; or
(e) referred to in Article 2 (2) (c) and (d) for trade of EUR 10 000 or more.
(2) The customer check includes:
(a) the acquisition of information on the purpose and intended nature of the transaction or business relationship;
(b) identification of the ownership and management structure of the client and its beneficial owner where the client is a legal person, trust fund or other legal arrangement without a legal personality, and taking measures to identify and verify the identity of the beneficial owner;
(c) ongoing monitoring of the business relationship, including the review of transactions conducted during the relationship, in order to determine whether the transactions are consistent with what is known to the obligor about the client and his business and risk profile;
(d) reviewing the sources of funds or other assets to which the transaction or business relationship relates; and
(e) in the context of a business relationship with a politically exposed person, adequate measures to establish the origin of its property.
(3) The obliged entity shall carry out a customer check in accordance with paragraph 2 (c) and (d) to the extent necessary to assess the possible risk of legalisation of the proceeds of crime and terrorist financing, depending on the type of client, business relationship, product or trade. A person authorised to carry out a performance check pursuant to Article 35 shall justify the adequacy of the scope of the client's control and shall demonstrate the manner in which it is carried out or the verification of compliance with the conditions for simplified client identification and control pursuant to Article 13 or for an exemption from client identification and control pursuant to Article 13a, taking into account the risks referred to above.
(4) When assessing the potential risk referred to in paragraph 3, the obligor shall take into account the risk factors identified in the risk assessment referred to in Section 21a.
(5) The mandatory person for each type of transaction provided to him shall determine the value of the transaction on the basis of the risk assessment in accordance with § 21a, at which time he will always carry out a customer check. This value may not exceed the amount referred to in paragraph 1.
(6) When carrying out a customer check, the obliged person shall identify and record:
(a) the actual owner of the information to verify his identity and the procedure for his detection;
(b) an artificial trust fund or other legal arrangement without a legal personality which is determined on the basis of certain characteristics or belonging to a particular category, sufficient information to identify the specific occupied at the time of payment of the proceeds or at the time when the acquired rights are exercised;
(c) a life insurance beneficiary who:
1. designated as a specific person or legal arrangement without a legal personality, its name and surname or name;
2. determined on the basis of its relationship with the insured person or otherwise, sufficient information to identify the specific beneficiary at the time of payment of the payment;
3. politically exposed person, all relevant circumstances and course of business.
(7) The client shall provide the obligor with the information necessary to carry out the check, including the presentation of relevant documents.
(8) For the purposes of this Act, the obliged person may make copies or extracts of the documents submitted and process the information thus obtained to fulfil the purpose of this Act. ';
33. The heading of Section 10 reads: "Intermediate identification."
34. in Paragraph 10 (1):
"(1) At the request of the client or the obligor, the client's identification referred to in Article 8 (1) may be carried out by a notary or a public administration contact point. ';
35. in Paragraph 10 (2) of the introductory part of the provision, the words "or the point of contact of the public administration" and the words "or the Office referred to in paragraph 1" shall be inserted after the word "Notary";
36. In Paragraph 10 (5) of the Introductory Part of the provision, the words "and the public administration contact point 'and the words" and the Office referred to in paragraph 1' shall be inserted after the word "Notary '.
37. in Paragraph 11 (1) of the introductory part of the provision, the words "the ownership and management structure of the client and its" shall be inserted after the words "and the findings."
38. in Article 11 (1) (a), the words "the Foreign Exchange Act" are replaced by the words "the Exchange Act."
39. In Article 11, the following paragraph 2 is inserted after paragraph 1:
"(2) The mandatory person referred to in Article 2 (1) (e) and (g) need not carry out the client's identification, identification of the purpose and intended nature of the transaction or business relationship referred to in Article 9 (2) (a) and identification of the client's ownership and management structure and its beneficial owner pursuant to Article 9 (2) (b), where such acts have been carried out by a person of the same type operating in the territory of a State which imposes obligations equivalent to the requirements of European Union law in the field of combating the legalisation of proceeds from crime and terrorist financing."
Paragraphs 2 to 7 shall be renumbered paragraphs 3 to 8.
40. Paragraph 11 (3) and (4) reads as follows:
"(3) The obligation to provide information, including copies of relevant documents, on the identification of the client, the purpose and intended nature of the business relationship, the ownership and management structure of the client and the identity of the beneficial owner, from the credit or financial institution or the person who carried out the identification or identification of the relevant data, shall be ensured by the obliged entity that is acting in accordance with paragraph 1 or 2.
(4) The person responsible for carrying out the operations referred to in paragraphs 1 and 2 shall be as if he had carried them out himself. The obligor shall not take over information on client identification, the purpose and intended nature of the transaction or business relationship, or the identification of the client's ownership and management structure and its beneficial owner in accordance with paragraphs 1 and 2, where there is doubt as to the accuracy or completeness of that information, and where the fulfilment of the conditions laid down in paragraph 3 is not ensured in advance. ';
41.Paragraph 11 (5) shall be deleted;
Paragraphs 6 to 8 shall become paragraphs 5 to 7.
42. In Article 11 (5) and (6), the words "the customer's ownership and management structure and its" shall be inserted after the words "and the findings."
43. In Article 11 (5), the last sentence is replaced by the following: "This information, including copies of relevant documents, if any, shall be deposited with the debtor."
44. In Article 11, the following paragraphs 7 and 8 are inserted after paragraph 6, including footnote 30:
"(7) The mandatory person referred to in Article 2 (1) (a) and (b) (1) to (11) who enters into a written contract with a client to provide a financial service may, without the physical presence of a client who is a natural person, or of a natural person acting as a client, if the client is a legal person, make an identification of the client if:
(a) the client sends copies to the obliged person in the manner referred to in Section 10 (4)
1. the relevant parts of the identity card and at least one other supporting document from which the identification details of the relevant natural person, the type and number of the identity card, the State and, where applicable, the authority which issued it, and the period of validity thereof, may be ascertained;
2. a document confirming the existence of an account held in the name of a client with a credit institution or with a foreign credit institution operating in the territory of a European Economic Area State;
(b) the first payment under this contract shall be made through the account referred to in (a) (2); and
(c) the obligor has no doubt about the actual identity of the client.
(8) Without the physical presence of a client who is a natural person or a natural person acting on behalf of a client, if the client is a legal person, the obliged entity may identify the client if:
(a) the client shall communicate the identification data referred to in Article 5 (1) and the required additional identification data referred to in Article 5 (2) to the obliged person in the manner specified therein;
(b) the obliged entity verifies the identity of the relevant natural person with a qualified trust service provider under the directly applicable European Union regulation governing electronic identification and trust services for electronic transactions on the internal market30); and
(c) the obligor has no doubt about the actual identity of the client.
30) Regulation (EU) No 910 / 2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999 / 93 / EC. '
Paragraph 7 shall become paragraph 9.
45. in Paragraph 11 (9), the words "paragraphs 1 and 4 to 6" shall be replaced by the words "paragraphs 1, 2 and 5 to 8" and at the end of the paragraph, the sentence "When assessing a risk, the obligor shall take into account the risk factors listed in the risk assessment under § 21a."
46. In Paragraph 11, the following paragraph 10 is added:
"(10) Compulsory persons may exchange relevant information relating to the transactions they carry out in order to fulfil their obligations under Article 9 in accordance with the procedure referred to in paragraphs 1 and 2. The exchange of information and reliance on another person in the activities referred to in paragraphs 1, 2 and 5 to 8 shall not be possible for persons active in high-risk third countries, except for branches and subsidiaries of persons established in a Member State of the European Union who fulfil obligations equivalent to those of European Union law in the field of combating the legalisation of proceeds from crime and terrorist financing. ';
47. in Paragraph 12, "paragraphs 4 and 6" are replaced by "paragraphs 5 to 8."
48. The heading of Section 13 reads: "Simplified client identification and control."
49. In Paragraph 13 (1), the introductory part of the provision reads: "The mandatory person may carry out simplified identification and control of the client in relation to categories of clients with potentially lower risk of abuse for the legalisation of proceeds from crime or terrorist financing, if the client is a client."
50. in Paragraph 13 (1) (b), the words "European Community1)" are replaced by the words "European Union1";
51. in Paragraph 13 (1) (c), the words "the European Communities" shall be replaced by the words "the European Union";
52. in Article 13 (1) (f) (1), the words "the European Communities" shall be deleted;
53. In Paragraph 13 (1) (f), at the end of the text of point 4, comma is replaced by "a."
54. In Paragraph 13 (2), the introductory part of the provision reads: "Simplified client identification and control may also be applied by the obliged person."
55. in Article 13 (2), the words "or" and (c) and (d) shall be added at the end of point (b);
Point (e) shall be renumbered as point (c).
56. in Paragraph 13 (2) (c) (2), the words "European Community1)" are replaced by the words "European Union1";
57. Paragraph 13 (3) reads:
"(3) In the cases referred to in paragraphs 1 and 2, it shall be sufficient that the obliged person only:
(a) verify that the said conditions are met;
(b) identify and record the client's identification data in an appropriate manner; and
(c) establish, on the basis of the information available to it, whether any of the clients, the product or the particular trade does not pose an increased risk of abuse for the legalisation of the proceeds of crime or terrorist financing; in case of doubt, the simplified client identification and control referred to in paragraphs 1 and 2 shall not apply. ';
58. In Paragraph 13 (4), the words "exemption under paragraph 2 'are replaced by" Simplified client identification and control'.
59. After Paragraph 13, the following Section 13a is inserted:
Exemptions from the obligation to identify and control the client
Contents
ČÁST PRVNÍ
Čl. I
㤠9
㤠13a
㤠14
§ 15
㤠21a
㤠24a
㤠29b
§ 29c
§ 29d
㤠30a
㤠45
㤠51a
㤠52a
Čl. II
ČÁST DRUHÁ
Čl. III
ČÁST TŘETÍ
Čl. IV
„ČÁST ČTVRTÁ
§ 118b
§ 118c
§ 118d
§ 118e
§ 118f
§ 118g
§ 118h
§ 118i
§ 118j
ČÁST ČTVRTÁ
Čl. V
ČÁST PÁTÁ
Čl. VI
ČÁST ŠESTÁ
Čl. VII
ČÁST SEDMÁ
Čl. VIII
ČÁST OSMÁ
Čl. IX
ČÁST DEVÁTÁ
Čl. X
ČÁST DESÁTÁ
Čl. XI
ČÁST JEDENÁCTÁ
Čl. XII
㤠16b
Čl. XIII
ČÁST DVANÁCTÁ
Čl. XIV
ČÁST TŘINÁCTÁ
Čl. XV
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Regulation Information
| Citation | Act No. 368 / 2016 Coll., amending Act No. 253 / 2008 Coll., on certain measures against the legalisation of proceeds from crime and terrorist financing, as amended, and other related laws |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.11.2016 |
|---|---|
| Effective from | 01.01.2017 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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