BaFin-Interpretation and Application Guidance in relation to the German Money Laundering Act (October 2021)

BaFin-Interpretation and Application Guidance in relation to the German Money Laundering Act (October 2021)

Table of contents

I. Addressees

1. Addressees of the anti-money laundering obligations under the supervision of BaFin

1.1 Credit institutions

1.2 Financial services and investment institutions

1.3 Payment institutions and electronic money institutions

1.4 Agents and e-money agents and payment institutions and e-money institutions seated in another signatory state to the Agreement on the European Economic Area

1.5 Independent businesspersons within the meaning of the GwG

1.6 Insurance undertakings

1.7 Asset management companies and other

1.8 Financial holding companies, mixed financial holding companies and investment holding companies

II. Risk management (risk assessment and internal safeguards)

2. Risk management and assessment – sections 4 and 5 of the GwG

2.1 General principles

2.2 Responsibility

2.3 Risk assessment

3. Internal safeguards, section 6 of the GWG

3.1 The development of internal principles, procedures and controls

3.2 The appointment of an anti-money laundering officer and a deputy, section 7 of the GwG

3.3 Establishment of group-wide procedures, section 9 of the GwG

3.4 Prevention of misuse of new products and technologies

3.5 Review of reliability

3.6 Instruction of employees

3.7 Review of the above-mentioned principles and procedures

3.8 Whistleblowing, section 6 (5) of the GwG

3.9 Safeguarding readiness to provide information, section 6 (6) of the GwG

3.10 Outsourcing of internal safeguards, section 6 (7) of the GwG

3.11 Power to issue orders, section 6 (8) of the GwG

III. Customer due diligence obligations

4. Triggers of general due diligence obligations, section 10 of the GwG

4.1 Establishment of a business relationship, section 10 (3) no. 1 of the GwG

4.2 Transactions outside the scope of an existing business relationship, section 10 (3) no. 2

4.2.1 Definition of the term “transaction”, section 1 (5) of the GwG

4.2.2 Funds transfer

4.2.3 Transfers of crypto assets

4.2.4 Thresholds/smurfing

4.2.5 Special provisions

4.3 Transactions in connection with money laundering or terrorist financing,

section 10 (3) no. 3 of the GwG

4.4 Doubts concerning identification details, section 10 (3) no. 4 of the GwG

4.5 Renewed fulfilment of customer due diligence obligations in case of existing customers

5. Customer-related due diligence obligations

5.1 Identification of the contracting party and the person acting on his behalf,

section 10 (1) no. 1 of the GwG

5.1.1 Contracting party

5.1.2 Person acting on behalf of the contracting party

5.1.3 Identification of natural persons, sections 11 (4) no. 1, 12 (1), (13) of the GwG

5.1.3.1 Collection of information

5.1.3.2 Verification of information collected

5.1.4 Identification of legal persons and partnerships, sections 11 (4) no. 2, 12 (2) of the GwG

5.1.4.1 Collection of information

5.1.4.2 Verification of information collected

5.1.5 Authorisation check for persons acting on behalf of a contracting party,

section 10 (1) no. 1 of the GwG

5.1.6 Simplifications in relation to the identification obligation

5.2 Clarification of whether a beneficial owner exists and, where applicable, his identification, section 10 (1) no. 2 of the GwG

5.2.1 Definition of beneficial owners, section 3 of the GwG – basic principles

5.2.2 Definition of beneficial owners, section 3 of the GwG – specific statutory examples

5.2.2.1 Legal persons and other companies

5.2.2.2 Notional beneficial owners, section 3 (2) sentence 5 of the GwG

5.2.2.3 Foundations which have legal capacity and similar legal structures

5.2.3 Due diligence obligations in relation to beneficial owners, section 10 (1) no. 2

of the GwG

5.2.3.1 Clarification obligation, section 10 (1) no. 2 first half-sentence of the GwG

5.2.3.2 Identification obligation, section 10 (1) no. 2 first half-sentence in conjunction with

sections 11 (5), 12 (3) of the GwG

5.2.3.3 Ownership and control structure of the contracting party, section 10 (1) no. 2 second half- sentence of the GwG

5.3 Purpose and intended nature of the business relationship, section 10 (1) no. 3 of the GwG

5.4 Clarification of PEP status, section 10 (1) no. 4 of the GwG

5.4.1 Determination of PEP status

5.4.2 Procedures for clarification of PEP status

5.5 Continuous monitoring of the business relationship and update obligation,

section 10 (1) no. 5 of the GwG

5.5.1 Continuous monitoring

5.5.2 Updating

5.6 Scope of the due diligence obligations in case of a normal level of risk, section 10 (2) of the GwG

5.7 Date of identification, section 11 (1) and 2 of the GwG and waiver of identification,

section 11 (3) of the GwG

5.8 Non-establishment/termination of business relationships and non-implementation of transactions, section 10 (9) of the GwG

5.8.1 Principles

5.8.2 Principle of proportionality

6. Simplified due diligence obligations, section 14 of the GwG

6.1 Principle

6.2 Factors resulting in a potentially lower level of risk

6.3 Scope of the due diligence obligations to be fulfilled, section 14 (2) of the GwG

7. Enhanced due diligence obligations, section 15 of the GwG

7.1 Principles

7.2 Politically exposed persons and their family members and known close associates,

section 1 (12)-(14) in conjunction with section 15 (3) no. 1, (4) of the GwG

7.3 Third countries subject to a high level of risk, section 15 (3) no. 2 of the GwG and

section 15 (5) and (5) (a) of the GwG

7.4 High-risk transactions, section 15 (3) no. 3 and (6) of the GwG

7.5 Cross-border correspondent relationships, section 15 (3) no. 4 and (7) of the GwG

7.5.1 Definition

7.5.2 Principles

7.5.3 Measures to be implemented

7.6 Orders issued by BaFin, section 15 (8) of the GwG

8. Fulfilment of obligations by third parties and contractual outsourcing, section 17 of the GwG

8.1 Use of third parties without a separate contractual basis, section 17 (1)-(4) of the GwG

8.2 Transfer of due diligence obligations on a contractual basis (outsourcing), section 17 (5)-(9)

of the GwG

8.3 Sub-outsourcing

8.4 Forwarding of an identification data record

IV. Other obligations

9. Recording and retention obligations, section 8 of the GwG

10. Suspicious transaction report procedure, section 43 of the GwG

10.1 Principle

10.2 Preconditions for the reporting obligation under section 43 (1) nos. 1 and 2 of the GwG

10.3 Reporting obligation under section 43 (1) no. 3 of the GwG

10.4 Organisational structure for the reporting procedure

10.5 Report requirements

10.6 Consequences of a report

10.7 Forwarding of information concerning reports

10.8 Termination of business relationships

11. Group-wide implementation, section 9 of the GwG

11.1 Parent undertaking/group

11.2 Undertakings subject to group obligations

11.3 Nature of the obligation

12. Forwarding of information, section 47 of the GwG

13. Cooperation obligations, section 52 of the GwG

13.1 Subject matter of the cooperation obligation/non-remuneration

13.2 Access and inspection right/obligation to tolerate

13.3 Right to refuse to provide information/obligation to submit documents