Sectoral guidelines for providers of investment funds – Measures

Sectoral guidelines for providers of investment funds – Measures

EBA has published the final Guidelines under Articles 17 and 18(4) of Directive (EU) 2015/849 on simplified and enhanced customer due diligence. The Risk Factors guidelines give an overview on the factors credit and financial institutions should consider when assessing the money laundering and terrorist financing risk associated with individual business relationships and occasional transactions.

Sectoral guidelines for providers of investment funds – Measures

218.

The measures funds or fund managers should take to comply with their CDD obligations will depend on how the customer or the investor (where the investor is not the customer) comes to the fund. The fund or fund manager should also take risk-sensitive measures to identify and verify the identity of the natural persons, if any, who ultimately own or control the customer (or on whose behalf the transaction is being conducted), for example by asking the prospective investor to declare, when they first apply to join the fund, whether they are investing on their own behalf or whether they are an intermediary investing on someone else’s behalf.

219.

The customer is:  

a) a natural or legal person who directly purchases units of or shares in a fund on their own account, and not on behalf of other, underlying investors; or

b) a firm that, as part of its economic activity, directly purchases units of or shares in its own name and exercises control over the investment for the ultimate benefit of one or more third parties who do not control the investment or investment decisions; or  

c) a firm, for example a financial intermediary, that acts in its own name and is the registered owner of the shares or units but acts on the account of, and pursuant to specific instructions from, one or more third parties (e.g. because the financial intermediary is a nominee, broker, multi-client pooled account/omnibus type account operator or operator of a similar passive-type arrangement); or

d) a firm’s customer, for example a financial intermediary’s customer, where the firm is not the registered owner of the shares or units (e.g. because the investment fund uses a financial intermediary to distribute fund shares or units, and the investor purchases units or shares through the firm and the firm does not become the legal owner of the units or shares).

SDD and EDD measures to be taken in the situations described in paragraphs 219a and 219b

Sectoral guidelines for providers of investment funds – Measures

220.

In the situations described in paragraphs 219a and 219b, examples of EDD measures a fund or fund manager should apply in high-risk situations include:

• obtaining additional customer information, such as the customer’s reputation and background, before the establishment of the business relationship;
• taking additional steps to further verify the documents, data or information obtained;
• obtaining information on the source of funds and/or the source wealth of the customer and of the customer’s beneficial owner;
• requiring that the redemption payment is made through the initial account used for investment or an account in the sole or joint name of the customer;
• increasing the frequency and intensity of transaction monitoring;
• requiring that the first payment is made through a payment account held in the sole or joint name of the customer with an EEA-regulated credit or financial institution or a regulated credit or financial institution in a third country that has AML/CFT requirements that are not less robust than those required by Directive (EU) 2015/849;
• obtaining approval from senior management at the time of the transaction when a customer uses a product or service for the first time;
• enhanced monitoring of the customer relationship and individual transactions.

221.

In lower risk situations, to the extent permitted by national legislation, and provided that the funds are verifiably being transferred to or from a payment account held in the customer’s sole or joint name with an EEA-regulated credit or financial institution, an example of the SDD measures the fund or fund manager may apply is using the source of funds to meet some of the CDD requirements.

SDD and EDD measures to be taken in situations described in paragraph 219c

Sectoral guidelines for providers of investment funds – Measures

222.

In the situations described in paragraph 219c, where the financial intermediary is the fund or fund manager’s customer, the fund or fund manager should apply risk-sensitive CDD measures to the financial intermediary. The fund or fund manager should also take risk- sensitive measures to identify, and verify the identity of, the investors underlying the financial intermediary, as these investors are beneficial owners of the funds invested through the intermediary. To the extent permitted by national law, in low-risk situations, funds or fund managers may apply SDD measures similar to those described in paragraph 112 of these guidelines, subject to the following conditions:

• The financial intermediary is subject to AML/CFT obligations in an EEA jurisdiction or in a third country that has AML/CFT requirements that are not less robust than those required by Directive (EU) 2015/849.
• The financial intermediary is effectively supervised for compliance with these requirements.
• The fund or fund manager has taken risk-sensitive steps to be satisfied that the ML/TF risk associated with the business relationship is low, based on, inter alia, the fund or fund manager’s assessment of the financial intermediary’s business, the types of clients the intermediary’s business serves and the jurisdictions the intermediary’s business is exposed to.
• The fund or fund manager has taken risk-sensitive steps to be satisfied that the intermediary applies robust and risk-sensitive CDD measures to its own customers and its customers’ beneficial owners. As part of this, the fund or fund manager should take risk-sensitive measures to assess the adequacy of the intermediary’s CDD policies and procedures, for example by referring to publicly available information about the intermediary’s compliance record or liaising directly with the intermediary.
• The fund or fund manager has taken risk-sensitive steps to be satisfied that the intermediary will provide CDD information and documents on the underlying investors immediately upon request, for example by including relevant provisions in a contract with the intermediary or by sample-testing the intermediary’s ability to provide CDD information upon request.

Sectoral guidelines for providers of investment funds – Measures

223.

Where the risk is increased, in particular where the fund is designated for a limited number of investors, EDD measures must apply and may include those set out in paragraph 220 above.

SDD and EDD measures to be taken in situations described in paragraph 219d

224.

In the situations described in paragraph 219d, the fund or fund manager should apply risk-sensitive CDD measures to the ultimate investor as the fund or fund manager’s customer. To meet its CDD obligations, the fund or fund manager may rely upon the intermediary in line with, and subject to, the conditions set out in Chapter II, Section 4, of Directive (EU) 2015/849.

225.

To the extent permitted by national law, in low-risk situations, funds or fund managers may apply SDD measures. Provided that the conditions listed in paragraph 222 are met, SDD measures may consist of the fund or fund manager obtaining identification data from the fund’s share register, together with the information specified in Article 27(1) of Directive (EU) 2015/849, which the fund or fund manager must obtain from the intermediary within a reasonable timeframe. The fund or fund manager should set that timeframe in line with the risk-based approach.

226.

Where the risk is increased, in particular where the fund is designated for a limited number of investors, EDD measures must apply and may include those set out in

paragraph 220 above. 

Title IV – Implementation

Implementation

227. Competent authorities and firms should comply with these guidelines by 26 June 2018.

Compliance & Geldwäschebeauftragter – Sectoral guidelines for providers of investment funds – Measures

Unsere Praxisseminare Geldwäsche und Fraud – Basisseminar, Geldwäsche und Fraud – Aufbauseminar, Geldwäsche & Fraud – Update und Geldwäsche & Fraud – Forum verschaffen Ihnen einen umfassenden Überblick zu den aktuellen gesetzlichen Neuerungen und unterstützen Sie dabei, Geldwäsche- und Betrugsstrukturen zu erkennen, zu bewerten und rechtzeitig zu verhindern. In den Compliance-Seminaren wie Compliance, Compliance für Vertriebsbeauftragte, Neue Compliance-Funktion gemäß MaRisk oder auch Compliance im Fokus der Bankenaufsicht werden Ihnen die Ausgestaltung der Schnittstellen zwischen Compliance, Datenschutz, IT, Zentrale Stelle und Interner Revision näher gebracht. Auch die Mindestanforderungen zum Aufbau eines Gesamt-IKS werden hier beispielsweise näher erläutert.

Zudem haben Sie die Chance, nach Teilnahme der Seminare die Zertifizierungslehrgänge zum Compliance Officer, zum AML & Fraud Officer oder zum Geldwäsche-Beauftragter zu absolvieren.