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THE PREPARATION OF ANTI-MONEY LAUNDERING

  • 01/08/2022
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What is anti-money laundering?
It is a compulsory requirement for certain professionals (real estate brokers, lawyers, accountants, notaries), aimed at preventing offences related to the reuse of money of illegal origin.
The real estate broker is obliged to prepare the anti-money laundering file when he/she comes into contact with the seller/landlord, at the time of the assignment, or the buyer, at the time of acceptance of the purchase/rental proposal.
The AML file must be prepared within 30 days of the assignment (even if verbal) or acceptance of the proposal in the following cases:

* purchase/sale (always);
* lease (only if the rent exceeds € 10,000 per month);
* mere consultancy, if for payment, and regardless of future mediation activity.

THE VERIFICATION FILE

The compilation of the AML file is carried out in two stages:

a) setting up of the verification file;
b) setting up of the risk file.

For the setting up of the verification file, the client (seller/landlord and buyer/tenant) is required to provide the professional with:

* their personal data;
* their residential address;
* the details of a valid identity document;
* the declaration of the existence of a family relationship or affinity with politically exposed persons;
* purpose of the transaction;
* origin of the funds. In the case of a legal entity, it is necessary to request a Chamber of Commerce certificate in order to identify the beneficial owners of the entity, i.e. the persons in whose actual interest the activity is carried out.

It should be emphasised that the declarations relating to the data mentioned emanate from the client, who is criminally liable in the event of false declarations.
For these reasons, it is advisable to always check the accuracy of the data entered before signing the verification file.

The client must also sign the authorisation to process personal data.

THE RISK FILE

At a later stage, the broker must supplement the verification file by entering data on the type and value of the transaction, as well as on the transaction's degree of risk from a financial point of view, also by completing the so-called 'risk file'.
The completion of this section is entirely left to the professional. Finally, the file must be collated, stamped and signed by the professional, who is obliged to keep the documentation for a period of 10 years.

POLITICALLY EXPOSED PERSONS

When preparing the AML file, it is important to pay particular attention when one of the parties belongs to politically exposed persons (hereinafter "PEPs").
The definition of PEP is important in order to identify the parties to the transaction as well as the source of the money used in the transaction (the so-called 'origin of funds'). In the case of PEPs, the identification of the origin of the funds is mandatory.
Since not everyone may be aware of the notion of PEPs, it is advisable to provide information to the client when compiling the verification file.
EPPs are persons holding institutional positions as specified in Article 1(2)(dd)(1.1-1.9) of Legislative Decree 90/2017. In particular, PEPs are natural persons who occupy or have occupied or less than one year important public offices:

a) President of the Republic, Prime Minister, Minister, Vice-Minister and Undersecretary, Regional President, Regional Councillor, Mayor of provincial capital or metropolitan city, Mayor of municipality with a population of not less than 15,000 inhabitants as well as similar offices in foreign states;
b) Member of Parliament, Senator, Member of the European Parliament, Regional Councillor as well as similar offices in foreign States;
c) member of the central governing bodies of political parties;
d) judge of the Constitutional Court, magistrate of the Court of Cassation or of the Court of Auditors, councillor of State and other members of the Council of Administrative Justice for the Sicilian Region as well as similar offices in foreign States;
e) member of the governing bodies of central banks and independent Authorities;
f) ambassador, chargé d'affaires or equivalent posts in foreign States, senior officer of the armed forces or similar posts in foreign States;
g) member of the administrative, management or supervisory bodies of companies controlled, even indirectly, by the Italian State or a foreign State, or in which the Regions, provincial capitals and metropolitan cities and municipalities with a total population of not less than 15,000 inhabitants hold a majority or full stake;
h) general director of ASLs, hospital enterprises, university hospitals and other bodies of the national health service;
i) director, deputy director and member of the management body or person performing equivalent functions in international organisations.

FAMILY MEMBERS OF POLITICALLY EXPOSED PERSONS

The following are family members of PEPs (Art. 1, paragraph 2(dd)(2), Legislative Decree 90/2017):

a) the parents;
b) the spouse or person bound in a civil partnership or de facto cohabitation or similar institutions to the politically exposed person;
c) children and their spouses as well as persons linked to the children in a civil partnership or de facto cohabitation or similar institutions.

PERSONS WITH WHOM PEPS HAVE CLOSE TIES

Persons with whom politically exposed persons are known to have close ties are (Art. 1(2)(dd)(3) of Legislative Decree 90/2017):

a) natural persons who hold, jointly with the politically exposed person, beneficial ownership of legal entities, trusts and related legal arrangements or who have close business relations with the politically exposed person (point amended by Legislative Decree 125/2019);
b) natural persons who only formally hold total control of an entity that is known to have been set up, de facto, in the interest and for the benefit of a politically exposed person.

LEGISLATIVE DECREE 195/2021

The latest updates in the area of anti-money laundering were made by Legislative Decree 195/2021 in implementation of the EU Anti-Money Laundering Directive 2018/1673.
The decree achieves a harmonisation of the offences involved in order to ensure a uniform and consistent penalty treatment in European countries.
Reference is made, in particular, to the offences of receiving stolen goods, money laundering, self-laundering, as well as the use of money, goods or benefits of criminal origin.
New rules are also laid down on jurisdiction in order to reinforce cooperation between the different authorities within the EU.

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