The practice of gambling: The transposition in the national legislation of the EU directive in the money laundering field
Series of articles from “The Practice of Gambling” by Anchidim Zagrean, Rombet Vice-President
Exactly two years after the date when the member states were supposed to assure the enforcement of the acts with law force and the administrative acts, necessary in order to comply with the directive regarding the prevention of the use of the financial system in view of money laundering or terrorism financing, the Romanian Parliament has adopted the binding law which is to reach the goal and result of the directive. As a matter of fact, the Directive provides that, until June 26th 2019, the Commission elaborates a report regarding the application of the directive and forwards it to the European Parliament and to the Council, and this date coincided with the date when the Romanian Parliament has adopted this law.
In the contents of the law for the transposition of the directive, a series of provisions are intended especially for the gambling organizers, and starting with their enforcement they are to be complied with and applied literally.
Briefly, the special regulations for the gambling activity contain:
1. Defining the gambling services – meaning – any service which supposes a stake with monetary value in gambling, including in those with skill elements, such as lotteries, casino games, poker games and bets, provided in a physical space or by any remote means, electronic or with the help of any technologies facilitating the communication and at the individual request of the services recipient.
2. Establishing the reporting entities of the gambling services providers, and from this posture a series of obligations derive:
> to transmit a report for suspect transactions to the National Office for the Prevention and Control of Money Laundering, if they know, suspect or have reasonable reasons to suspect that:
a) the goods are coming from any crimes related to terrorism financing;
b) the person or its proxy/representative/ agent aren’t who they claim they are;
c) the information that the reporting entity holds may be used for imposing the provisions of the law;
d) in any other situation with regard to the elements which may raise any suspicions regarding the character, economic purpose or motivation of the transaction, such as the existence of some anomalies compared to the client’s profile, as well as when there are clues that the data held about the client or the real beneficiary isn’t real or up to date, and the client refuses to update it or provides information which is not plausible.
In addition to the situations presented above, the reporting entities transmit a report for the suspect transactions to the National Office for the Prevention and Control of Money Laundering when the objective circumstances afferent to a business relation or occasional transactions, correspond entirely or partially to the indicators or typologies of suspect transactions presented publicly by the National Office for the Prevention and Control of Money Laundering.
The reporting entities consider as suspect any business relation or occasional transaction with a person whose identification data has been communicated to it punctually by the National Office for the Prevention and Control of Money Laundering.
> to report to the National Office for the Prevention and Control of Money Laundering any transactions in cash, in lei or currency, whose limit represents the equivalent in lei of 10.000 euro;
> to apply the standard measures of acquaintance with the clientele upon the collection of the gains, at the acquisition or change of jetton, when there are performed transactions whose minimum value represents the equivalent in lei of minimum 2.000 euro, in a single operation. When the amount is not known upon the acceptance of the transaction, the reporting entity applies the standard measures of clientele acquaintance, when informed about the value of the transaction and when it has established that the minimum applicable limit has been reached;
> to apply the additional measures for clientele acquaintance in all situations which, by their nature, may present a high risk of money laundering or terrorism financing, including in the following situations:
a) in the case of business relations and transactions involving persons from the countries which do not apply sufficient international standards in the field of prevention and control of money laundering and terrorism financing or which are known at international level as non-cooperating countries;
b) in the case of the relations with correspondent in credit institutions and financial institutions from other member states or from third states;
c) in the case of transactions or business relations with the persons publicly exposed or with clients whose real beneficiaries are persons publicly exposed, including for a period of at least 12 months starting with the date when that person no longer holds an important public position;
d) in the case of natural or legal person established in countries identified by the European Commission as third countries with a high risk level;
e) in the cases provided by the sectoral regulations or instructions issued by the National Gambling Office.
3. The reporting entities may apply, by the agency of the entities to whom the activities were externalized, measures for clientele acquaintance deriving from the externalized activities, only if they impose to them contractually their compliance with the legal obligations in the field of prevention and control of money laundering and terrorism financing, and establishes the mechanisms through which such compliance is assured. In these cases, the reporting entities remain responsible for the compliance with their obligations in accordance with the hereby law also in the cases where it doesn’t directly apply measures of acquaintance of the clientele.
4. The reporting entities, when applying the measures for clientele acquaintance, have the obligation to preserve in electronic format or on paper, in a form admitted in the judicial procedures, all the recordings obtained by the application of these measures, such as copies of the identification documents, of the monitoring and verifications performed, information obtained by the electronic identification means necessary for the compliance with the clientele acquaintance requirements, for a period of 5 years from the date of termination of the business relation with the client or from the date of any occasional transaction. The reporting entities keep justificatory documents and evidences of the transactions, consisting in account statements or commercial correspondence necessary for the identification of the transactions, including the results of any analysis performed with regard to the client, for example requests for establishing the history and the purpose of complex, unusually large transactions. These documents may be original or copies allowed in the judicial procedures and must be kept for a period of 5 years from the date of termination of the business relation with the client or from the date of any occasional transaction. When the extension of the period of preservation of the documents in view of preventing, finding or investigating the money laundering or terrorism financing activities is imposed, the reporting entities are bound to extend the terms with the periods indicated by the competent authorities, without such extension exceeding 5 years. At the expiration of the period of preservation, the reporting entities have the obligation to delete the personal data, unless other legal dispositions impose the preservation of the data.
5. The personal data is processed by the reporting entities pursuant to this law and by complying with the legislation in force regarding the processing of the personal data only for the purpose of the money laundering and terrorism financing prevention and is not to be processed subsequently in a manner which is inconsistent with this purpose. It is forbidden to process the personal data for other purposes, such as commercial purposes.
6. The reporting entities have the obligation to appoint one or several persons with responsibilities in applying the law, by indicating the nature and limits of the responsibilities awarded, whose names will be communicated to the National Office for the Prevention and Control of Money Laundering, exclusively in electronic format, by the channels put at disposal by the latter.
(to be continued in the next edition)