The 5th Anti-Money Laundering Directive and What It Means for Crypto Businesses
Including details on its implementation within Dutch Law.
Proposed in July 2016, as part of the EU’s plans to combat terrorism, the 5th EU Anti-Money Laundering Directive (AMLD 5) entered into force on the 9th of July, 2018. By design, the AMLD5 is meant to become an inherent part of the laws of Member States (MS), whilst leaving some leeway when it comes implementation. And while it provides a minimum standard of care, MS are free to impose higher compliance burdens when transplanting the Directive into their local legislative practice.
As noted, the AMLD5 is part of the EU Commission’s anti-terrorism efforts and it sets a significantly higher bar in the areas of Know-Your-Customer (KYC) and Anti-Money-Laundering (AML) legislation compared to its predecessor. With an implementation deadline until the 20th of January, 2020 for EU MS, the AMLD5 will impose a number of requirements for businesses of all sorts and thereby promote a more transparent source of income check system throughout the Union.
Given recent terrorist attacks around the Union and ongoing scandals such as the Panama Papers, the AMLD5 is a logical next step towards an opaque financial system designed to hinder illicit transfers of funds as early as possible. With numerous reports on the use of cryptocurrencies for illegal purposes, the AMLD5 is additionally meant to ripple onto crypto ventures such as exchanges, wallet providers and other similar entities offering trading services.
The main changes proposed by the Directive for companies with a crypto angle are as follows:
- The service providers that are subjected to the new rules remain the same as in AMLD4. Those are financial institutions, investment firms, tax advisors, accountants, notaries and lawyers who either transfer or receive payments greater than 10,000 EUR. Lower amounts are also subject to a continuous recording practice if they’re connected to the same source.
What is new here, however, is that the scope of the Directive additionally covers virtual currency platforms (exchanges) as well as custodian cryptocurrency wallet providers. - AMLD5 prohibits anonymous transactions on cryptocurrency exchanges. What is more, prepaid cards can no longer be used to provide payments. Custodian wallet providers and exchanges are therefore under the obligation to provide the full user identification, similarly to pre-existing requirements of banks and other brokerage service providers.
The use of anonymous bank and savings accounts and safe deposit boxes will also be prohibited. Come September 10th 2020, MS will have to create a central registry that allows the identification of natural or legal persons in possession of the above mentioned types of accounts. Specially designated Finance Intelligence Units (FUIs) will monitor these registries. - Lastly, the AMLD5 introduces a more stringent due diligence regime in regard to ‘high-risk’ third countries. Customers from third countries, deemed as presenting an increased risk, will thus be subjected to more detailed background checks. Initial transactions within a business setting will likely require said third party to establish an EU bank account before given permission to take part of the EU’s financial system.
The implementation of the AMLD5 within the Netherlands — a relatively stringent regime.
While we took mention that Directives can be modified by Member States, it is common practice for MS to impose a higher burden by way of their implementation. The general sentiment around the EU-28 in regard to AMLD5 is the registration practice for crypto businesses.
However, a small percentage has opted out for some additional protection. Such is also the case for the Netherlands which has, arguably, set quite a high bar for those affected by the new Directive.
Above other amendments, the Dutch Financial Ministry explicitly places exchanges and (professional) wallet service providers under a number of specific obligations.
First, the Ministry imposes a licensing requirement on the above-mentioned providers with a commercial angle — any business operating within a similar capability will not be operable unless they obtain a relevant license from the Dutch Central Bank (DCB). Said licensing practice is also subject to change or even revocation, at the discretion of the DCB in cases of non-compliance.
Second, exchanges and wallet service providers will have to appoint a designated team of experts, charged with the supervision of practices including the handling of virtual currencies. For businesses, this comes with significant additional, both human and financial, resources. What is more, supervision is required to be executed on a daily basis.
Overall, the Finance Ministry’s recommended changes have not been greeted with much enthusiasm within the private sector. Many businesses associated with cryptocurrencies and related activities have voiced justified concerns in regard to the burden they will bear in terms of costs and efforts.
The requirement of daily monitoring and control furthermore supports the claims made by various parties in the official consultations following the proposed AMLD5 amendments.
Renowned blockchain and crypto influencers and technologists have also joined the fray for justification of the elevated compliance standard. Most notably, Sjors Provoost — a vocal crypto supporter as well as Core Bitcoin Developer — has filed a number of official remarks pertaining the Directive’s implementation. To go along Mr. Provoost’s suggestions, here you can find his and the rest of the commentaries from the private sector.
In a nutshell, the EU is tightening its grip over inclusion within its financial system, with a specific focus on ‘questionable’ transactions originating from third parties.
The Directive furthermore acts as a propellant of the EU’s policy towards the formation of a more transparent financial system, whereby the general public will enjoy an enhanced access to relevant financial and ownership data.
From cease and desist orders to hefty fines, the results of non-compliance with the AMLD5 for crypto ventures can be quite far reaching. Specifically in the Netherlands, businesses will be expected to comply with other additional requirements. The ‘designated expert’ requirement for one could prove to impose a significant high burden companies within the crypto space.
As experts in EU law and the blockchain and cryptocurrency regulation domain, Watson Law is in a position to assist businesses in their AMLD 5 compliance efforts.
Need advice on how these changes relate to your company’s specific case? Don’t hesitate to contact us via our contact form on: www.watsonlaw.nl/en/
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