On 1 January 2020, the new Act on the Implementation of the fifth Anti-Money Laundering Directive (5AMLD) entered into force. The other Member States were also obligated to implement the fifth Anti-Money Laundering Directive by 10 January 2020. We have already looked more closely at those amendments contained in the 5AMLD which affect the German Anti-Money Laundering and Banking Act (KWG) in our article entitled “Draft law to implement the fifth Anti-Money Laundering Directive – what is coming and what will remain the same?”. However, a few more things have happened since then:
Let’s start with what is probably the most important news: The bundling of crypto custody business with other activities requiring a licence remains allowed as S. 32 para. 1 g (new) KWG, which was proposed after the publication of the draft law, didn’t find its way into the Act on the implementation of the 5AMLD. Furthermore, the transitional periods initially envisaged for all banking business activities and financial services that were not subject to a licence but will require a licence after the coming into force of this law were extended.
The German Anti-Money Laundering Act (GwG) also contains a few more changes: A definition of “member at managing level” was added. This is of particular importance in connection with the responsibility for risk management. Additionally, a definition of art agent was added to S. 1 para. 23 GwG. This results in a distinction between a ‘trade in goods’ and ‘art agency’, which is particularly important, as these activities have different threshold amounts triggering certain due diligence obligations.
Pursuant to the new S. 43 para. 4 sentence 1 GwG a report under paragraph 1 will at the same time be regarded as a voluntary declaration within the meaning of S. 261 para. 9 no. 1 of the German Criminal Code if the facts reported contain the information required for this purpose. The submission of a suspicious anti-money laundering activity report to the Financial Intelligence Unit will then lead to the decriminalisation of the relevant act in accordance with S. 261 para. 9 of the German Criminal Code.
While the draft law wanted to dispense with the distinction between carelessness and negligence and introduce the requirement of negligence for all actions carrying a fine, the Act on the Implementation of the 5th Anti-Money Laundering Directive now picks out a few select basic anti-money laundering obligations and connects the sanctioning of their violation to regular negligence.
In order to get a complete overview of all amendments, we have input the Act on the Implementation of the 5AMLD into the text of the old German Anti-Money Laundering Act as well as the Banking Act. We have also included the amendments to the German Fiscal Code. We have provided the reasons given in the drafts of the Government or the Finance Committee for the relevant amendments and marked them accordingly. All of our comments can be found inserted in italics.
You can find the revised texts here. Please note that the texts are in German.
Amendments to the German Payment Services Supervision Act (ZAG) (such as the frequently discussed “Lex Apple Pay”; further information to be found here) have not been included in this comparative revision.
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