New ASAE Regulation

On 24 February 2023, ASAE^[1] Regulation 1191/2022 (the “Regulation”)^[2] will enter into force. This Regulation sets out the conditions and Determines the content of the obligations to prevent and combat money laundering and terrorist financing (“ML/TF”).

This Regulation implements Law 83/2017 of 18 August, which establishes preventive and repressive measures to combat ML/TF. It also repeals ASAE Regulation 314/2018 of 25 May and introduce changes and clarifications on how to comply with those duties.

Besides the extensive regulatory rules brought in by the new Regulations, these are the most significant changes:

Scope of application

The bodies listed below are subject to regulation and supervision by the ASAE. Also, the ASAE has regulatory power over other bodies whose supervision or control does not fall under the exclusive responsibility of another sector-specific body:^[3]

Tax advisers and any other person whose principal commercial or professional activity is to provide, directly or through others, substantial assistance, support or advice in tax matters.

Providers of services to companies, other legal persons or entities without legal personality.

Professionals engaged in transactions involving the disposal and acquisition of rights over professional sportsmen and sportswomen.

Any person involved in auctions or pawnbroking.

Any person importing or exporting rough diamonds.

Any person engaged in the transportation, custody, handling or distribution of money or valuable goods.

Any person who stores, trades or acts as an intermediary in the trade of works of art (including in free zones) and traders in goods with a high unit value, where payment for the goods traded or services rendered, whether in a single operation or in several operations, is made:

In cash, if the value of the transaction is €3,000 (three thousand euros) or more, or

By other means of payment, if the value of the transaction is €10,000 (ten thousand euros) or more.

The Law does not specify the concept of “high unit value”, but the Regulation now defines it as any asset which, because of its intrinsic value, combined with the amount of the transaction, may pose an ML/TF risk. This includes:

Gold and other precious metals, precious stones, antiques, aircraft, vessels and motor vehicles.

Motorhomes, motorbikes, clothing and accessories, cosmetics, furniture, electronic equipment and alcoholic beverages.

Transactions related to oil, weapons, tobacco products, cultural artefacts and other articles of archaeological, historical, cultural and religious relevance or of rare scientific value, and ivory and protected species.

Other traders^[4] and service providers who trade in goods or provide services, where payment for the transaction is made in cash and the value of the transaction is €3,000 (three thousand euros) or more, regardless of whether payment is made in a single transaction or in several transactions.

Obliged entities that are engaged in the trade of goods or the provision of services wholly or partly by means of distance contracts^[5].

In the context of control obligations

ML/TF prevention manual

The new Regulation clarifies that internal policies and procedures must include, as a minimum, a ML/TF prevention manual. This manual must be in writing and available for use and consultation by relevant staff. It must also contain at least the following information:

The internal control measures to be implemented, in particular the identification and evaluation of the specific ML/TF risks associated with the activity carried out.

The nominal and functional identification of relevant staff.

The internal control procedures to mitigate the identified risks.

The procedures for the storage and processing of personal data.

Compliance officer

A member of senior management or equivalent must be appointed as the compliance officer to be responsible for implementing internal policies and monitoring compliance with the regulatory framework.