Date:

Have you had your say on the Irish Public Consultation on Member State Discretions?

It is important to be aware of this consultation and whether it has any relevance to your business as the views expressed in this consultation process will be considered in the context of the transposition of 4AMLD into Irish law.

The Department of Finance and the Department of Justice and Equality of Ireland opened a Consultation inviting interested parties to make submissions in relation to Member State discretions contained in the Directive (EU) 2015/849 on the Prevention of the use of the Financial System for the Purposes of Money Laundering or Terrorist Financing (“4AMLD”) and Regulation (EU) 2015/857 on Information Accompanying Transfers of Funds (“FTR”)

Why is this important?

The views expressed in this consultation process will be considered in the context of the transposition of 4AMLD into Irish law.

4AMLD builds upon the framework established under 3AMLD and as such contains a number of provisions and national discretions which have already been transposed into Irish law.  The Departments, in the interest of continuity and in the absence of any concerns brought to their attention, are minded to propose that such provisions be retained. However the Departments are open to considering views from stakeholders in this regard.

The National Discretions in the 4th Anti-Money Laundering Directive on which the Consultation is specifically seeking views and submissions are set out below:

Discretion to exempt gambling services on proof of low risk

The State is required to conduct a risk assessment to determine whether there are risks that gambling services could be used to perpetrate money laundering or terrorist financing. The assessment will look at the nature and scale of the gambling operations in Ireland and at the payment methods used to pay for gambling services.

The 4th AMLD could therefore apply to online gambling services; services provided face-to-face; activities such as bingo events and lotteries and the more recognisable and traditional services offered in Ireland through bookmaker and on course at race meetings.

Discretion to allow obliged entities not to apply certain CDD measures in relation to e-money

The Central Bank of Ireland is responsible for authorisation and ongoing regulation of entities offering e-money services. To grant derogation from the obligation to carry out normal CDD, there is a need for “an appropriate risk assessment which demonstrates a low risk”

Beneficial ownership register (corporates)

The Consultation specifically seeks views from the public on the level of access to the register of beneficial ownership for corporate and other legal entities and whether access to this register should be restricted as set out in Article 30(5), (a) – (c) or should access be extended to the public at large.

The Consultation also seeks views from the public as to whether the beneficial owners or controllers of companies should be able to apply, on a case by case basis, to restrict public access to some types of personal information such as – residential addresses or dates of birth and how this would work.

Beneficial ownership register of trusts

Article 31(4) requires Member States to hold trust-related information in a central register when trusts generate “tax consequences”. The Revenue Commissioners have indicated an openness to be the body that will establish and maintain this central register of trusts. Views are sought as to the registration requirements for trusts under Article 31(4) and as to the list of tax consequences that would result in a requirement to register under Article 31(4).

Discretion to allow obliged entities to mitigate risk through group structures

This discretion may be aligned with FATF recommendation 17 (paragraph 3) and also aligned with the risk based approach. It is possible that group AML/CFT programmes can effectively mitigate risks posed by doing business with higher risk jurisdictions.

Discretion to required appointment of “Central Contact Points”

Article 45(9) allows Member States to require electronic money issuers and payment service providers to appoint central contact points. The State invites submissions on this discretion.

National Discretions in the Funds Transfer Regulation

Discretion to exclude certain types of payments from scope of FTR

Member States may exempt from the scope of the Regulation certain domestic low-value transfers of funds that are made to purchase goods or services.

Member States can only grant such exemption where the payment services provider of the payee can back-trace the payment, by means of a unique identifier, to the purchaser of goods or services.

The State invites submissions on this discretion.

Public submissions

The public is invited to comment generally on how Ireland can best implement 4AMLD and FTR with a view to deterring, detecting and disrupting money laundering and terrorist financing in Ireland.

What is the timetable for action?

The consultation period will run to 5pm, Friday 4 March. Submissions after this date will not be considered.

If you have any questions please contact Ursula Mulvaney

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Richard Tall

Partner - National Head of Financial Services

I am an experienced corporate lawyer with an in-depth expertise in financial services.