2014年-EBA欧洲银行管理局_JC_2011_096--AMLTF-2011-05---UBO-Report-_27页_798kb

Summary of EBA, ESMA and EIOPA's Report on Beneficial Owners CDD under the Third Money Laundering Directive

Core Content

This report, published by the European Supervisory Authorities (EBA, ESMA, EIOPA) in April 2012, evaluates the legal, regulatory and supervisory implementation of the Third Money Laundering Directive (3rdMLD) across EU Member States (MS) regarding Customer Due Diligence (CDD) requirements for identifying Beneficial Owners (UBO). It highlights variations in how MS have transposed the directive and their supervisory expectations, while emphasizing the importance of harmonization to prevent exploitation for money laundering (ML) and terrorist financing (TF) purposes.

Main Findings

1. Differences in Implementation

• Identification of Beneficial Owners:
  All MS require financial institutions to identify UBOs, but there are significant differences in how they define and identify them. These differences arise from the minimum harmonization nature of the 3rdMLD, which allows for national variations in legal and regulatory frameworks.

• Verification of Identity:
  MS apply different standards for verifying the identity of beneficial owners. Some require reliable and independent sources in all cases, while others allow for risk-based verification, including verbal confirmation in some cases.

• Ownership and Control Information:
  The availability and transparency of ownership and control information vary across MS. Some MS have clear definitions of legal entities and arrangements (e.g., trusts, foundations), while others lack clarity, potentially leading to inconsistencies.

Key Aspects of the 3rdMLD

1.1 Definition of Beneficial Owner

• Article 3(6) of the 3rdMLD defines a beneficial owner as a natural person who ultimately owns or controls a legal entity or legal arrangement, or acts on behalf of the customer.
• There are two main approaches to identifying the UBO:
  • Top-down approach: A person owns/controls 25% plus one share of the customer or any entity that owns at least 25% plus one share of the customer.
  • Bottom-up approach: All layers of ownership are considered, and the total percentage is summed up to determine UBO status.

1.2 Calculation of the 25% Threshold

• 13 MS use the top-down approach, where only the direct ownership of 25% plus one share is considered.
• 11 MS use the bottom-up approach, where all layers of ownership are aggregated to determine if a person holds 25% or more.
• One MS explicitly lowers the threshold to 10% plus one share.

1.3 Control Over Corporate Entities

• MS define "control" differently, with some allowing for flexible interpretation and others providing minimum lists of individuals who may exercise control (e.g., chairperson, board members).
• 19 MS apply a risk-based approach, allowing institutions to adjust verification measures.
• 6 MS provide guidance on when a lower threshold may be justified.
• One MS sets the threshold at 10% plus one share.

1.4 Legal Entities and Arrangements

• For legal entities (e.g., foundations) and legal arrangements (e.g., trusts), the UBO is defined as:
  • The person who owns or controls 25% or more of the property.
  • The class of persons in whose main interest the arrangement is set up.
• 15 MS apply a 25% threshold for legal entities.
• 14 MS do not apply a threshold and expect institutions to identify UBOs based on risk-sensitive criteria.

Supervisory Expectations

2.1 Understanding Ownership and Control Structure

• All MS require institutions to understand the ownership and control structure of customers.
• 11 MS allow flexible, risk-based measures.
• 10 MS require risk-based verification, with some including minimum requirements like customer explanation or independent research.
• 7 MS prescribe specific steps for understanding and verifying ownership and control.
• One MS mandates a fixed, non-risk-based approach.

2.2 Verification of Identity

• 23 MS allow risk-based verification of identity, with some requiring reliable and independent sources.
• Three MS have set parameters for risk-based verification.
• Two MS do not allow risk-based verification and require standard verification in all cases.
• Some MS provide lists of acceptable documents for verification, while others define reliability based on issuing authority.

Enhanced Due Diligence (EDD)

3.4.1 High Risk Situations

• Article 13(1) of the 3rdMLD requires EDD in cases of increased ML/TF risk.

• Specific cases where EDD must apply:

  • When the customer is not physically present for identification.
  • In cross-frontier correspondent banking with institutions from third countries.
  • In transactions with Politically Exposed Persons (PEPs) from other MS or third countries.

• Other high risk indicators are also considered, such as:

  • Complex ownership structures.
  • Lack of transparency in ownership.
  • High-risk jurisdictions.

Record-Keeping and Updating

• All MS require institutions to keep UBO information up to date.
• Trigger events for updating include:
  • Changes in ownership.
  • Changes in the customer’s business relationship.
  • Suspicious activity.
• Institutions use UBO information for:
  • Assessing ML/TF risks.
  • Mitigating risks.
  • Compliance with sanctions legislation.

Conclusions and Recommendations

• The AML Committee identifies significant differences in the identification, verification, and handling of UBOs across MS, which may lead to gaps in the EU’s AML/CTF framework.
• These differences may:
  • Impede effective risk management.
  • Create inconsistencies in cross-border operations.
  • Affect the level playing field for financial institutions.
• The AML Committee recommends that the EU Commission consider:
  • Clarifying the definition of beneficial owner and CDD requirements in the 3rdMLD.
  • Fostering convergence of national standards, possibly through implementation measures under Article 40(1)(a) of the 3rdMLD.

Annexes

• Annex 1: Lists relevant articles of the 3rdMLD related to beneficial owners.
• Annex 2: Provides an overview of the availability of ownership and control information across the EU.
• Annex 3: Describes requirements for third parties to report changes in beneficial owners.