AML Law on information from fiduciaries
09/10/2018
The Law of 10 August 2018 relating to the information to be obtained and held by fiduciaries transposes into national law the provisions under Article 31 of the 4th EU Directive on anti-money laundering and terrorist financing ("AML/TF") (Directive (EU) 2015/849 ).
Drawing on the EU Directive, the Law sets tougher rules for professionals than before and provides national authorities with enhanced powers. In particular, Article 2 of the Law provides that fiduciaries of any fiducie shall obtain and hold information on beneficial ownership regarding the fiducie. That information shall include: the settlor, the fiduciary (or fiduciaries), the protector (if any), the beneficiaries or class of beneficiaries and any other natural person exercising effective control over the fiducie. In addition, the information shall be regularly updated (Art. 3) and shall be retained by the fiduciaries for five years as of the end of their involvement in the fiducie (Art. 4).
Fiduciaries shall disclose their status and provide the information mentioned above to professionals (Art. 6) when entering into a business relationship or carrying out an occasional transaction above a certain threshold1. Fiduciaries shall also provide this information to national authorities upon request (Art. 5).
Meanwhile, the CSSF, the Commissariat aux Assurances (CAA) and the Administration de l’Enregistrement et des Domaines (AED) are in charge of monitoring the implementation by fiduciaries of their new obligations (Art. 7) and benefit from all the supervisory and investigatory powers that are necessary for this matter, including the right to carry out on-site inspections with seizure of any relevant documents (Art. 8). These authorities may also impose administrative sanctions ranging from warnings to fines amounting to 1,250,000 euros (Art. 9).
Further transparency is expected when it comes to beneficial ownership of companies and fiduciaries, as the EU Parliament has already adopted a 5th AML Directive (Directive 2018/843 ), which is intended to establish beneficial ownership registers. The registers of beneficial owners of companies will be accessible to the general public, whereas the registers of beneficial owners of fiduciaries will be accessible to a limited public (the authorities and financial intelligence units, obliged entities, natural or legal persons that can demonstrate a legitimate interest and natural or legal persons that file a written request). In addition, the national registers will be interconnected at EU level through a European central platform. This matter is already under parliamentary discussion in Luxembourg within the Bills of Law 7217 (for companies) and 7216B (for fiduciaries) and the requirements of the 5th AML Directive should see the light in the near future.
1.Such thresholds are set out in Article 3 § 1 points b), ba) and bb) of the Law of 12 November 2004 relating to AML and TF, as amended.
Zie ook : Elvinger Hoss Prussen
