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The Council of Ministers passed the Royal Decree-Law 11/2018 on 31st August 2018 for the adaptation of Spanish legislation to Directive 2015/849, which implies the modification of Money Laundering Act 10/2010.

In substance, it deals with establishing new obligations in terms of licencing or a registry for service providers to companies. It also establishes harsher penalties for offences as well as whistle-blower channels, both public and private, for the communication of alleged offences in this area.

Some of the most relevant aspects are the following:

1. The situation of persons with public responsibility is regulated, including as persons subject to the regulations on money laundering: high-level officials, judges, members of the government or regional governments, directors and members of boards of directors of international organisations, as well as mayors of municipalities with over 50,000 inhabitants, and senior politicians belonging to political parties and trade unions. The obligation shall apply for up to 2 years from the moment said persons cease to hold office.

2. Natural persons or legal entities who trade professionally in goods, shall be subject to the obligations of Act 10/2010, when receivables or payments are made by non-resident natural persons, in cash, for an amount above Euro 10,000 (previously the threshold was Euro 15,000) per operation or group of related operations.

3. The penalties for money laundering shall increase and become those established in community legislation. Likewise, disclosure measures shall be carried out regarding the offenders, albeit with certain confidentiality guarantees.

4. The need to create a system for communicating offences is established, which guarantees the confidentiality of the identity of those regarding whom evidence or certainty of being related to money laundering activities exist. The legally obliged reporting parties shall ensure that their employees and managers have the means to report possible breaches of the law.

5. A registry of service providers to companies or trusts shall be created. This registry shall include persons who professionally render services such as the incorporation of companies, the exercise of management functions or non-board member secretarial functions, and other external consultants. Those affected should be registered at the Commercial Registry in accordance with the previsions of the Commercial Registry Regulation, and should put on record the beneficial ownership of the company (in the case of legal entities) and manifest their submission to the rules of law 10/2010. Those who may have been rendering such services at the time of entering into force of this regulation (4th September 2018) and who are not registered at the Commercial Registry shall have one year to do so.

6. With regard to the identification of the beneficial owner, the legally obliged reporting parties shall collect information from clients in order to ascertain whether they are acting on their own behalf or on behalf of third parties. And where there is evidence or certainty that clients are not acting on their own behalf, accurate information must be gathered to ascertain the identity of the persons for whom they are acting.

7. The legally obliged reporting parties may not establish or maintain business relations with legal entities or structures without legal personality when it has not been possible to determine the ownership or control structure thereof.

8. Countries with deficiencies in their anti-money laundering systems (set out in Article 9 of Directive 2015/849) must apply enhanced diligence measures. This shall also apply to money remittance and foreign exchange operations.

9. A period of 10 years is established for the preservation of documentation relating to the above obligations.

Eduardo Vilá

For more information, please contact va@vila.es

September 7th, 2018

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