The comprehensively revised interpretation and application guidelines for the General Part (the “AuA AT”) of the Anti-Money Laundering Act are here! In July 2024, BaFin published a consultation draft in which it had announced a comprehensive revision of its AuA AT (PayTechLaw reported).
On November 29, 2024, BaFin published the final version of its revised AuA AT. A comparison with the previous AuA (as of October 2021) shows that although BaFin has taken into account recent regulatory developments, including the broadening of anti-money laundering supervisory practices, not all (overly ambitious) proposals from the consultation draft can now be found in the final version.
Changes in line with the consultation draft
In line with the consultation draft, the finally revised AuA AT, among other things, provide more specific details for factoring providers. In this regard, the AuA AT clarify that all incoming and outgoing payments must be monitored, regardless of whether a business relationship exists with the sender of the payment. This requirement is not new (see Section 25k (2) KWG), but it is being specified in accordance with administrative practice.
The AuA AT also now provide a de facto obligation for Advers Media Screening. The final version of the AuA AT takes up the comments on Advers Media Screening in the reports of the Financial Action Task Force (FATF) on the prevention of terrorist financing (p. 47), the relevant guidelines (The ML/TF Risk Factors Guidelines, GL. 9.21 lit. b) of the European Banking Authority (EBA) and BaFin’s own statement on terrorist financing from the beginning of February 2024 and now also formulates in a prominent place in the AuA AT the expectation that “further sources of information should be consulted” and “each obliged entity […] should make appropriate use of findings that may significantly contribute to determining risk factors relevant to it” – the knowledge available or to be gained in the company, “for example from media evaluations”, is cited as a prime example.
Compared to the consultation draft, however, the BaFin has moved away from the overly apodictic formulation that “each obligated party […] must use all the knowledge available to them” – such a formulation would hardly have provided legal certainty.
Not adopted in the final version
Some of the proposed amendments presented by BaFin in its consultation draft have not made it into the final version (thanks to successful lobbying by the association and opposition from affected companies). This applies in particular to those proposed amendments in the consultation that, when examined more closely, could be understood as a result-oriented interpretation of the law that is, however, hardly measurable and still supported by the wording of the legislation.
These included, for example, the requirements for the examination of certain crypto transfers using special blockchain analysis technology.
Particularly relevant for the payment sector: Contrary to the provisions of the consultation draft, BaFin has rightly refrained from regarding the provision of intermediary, purely technical services (e.g. as issuing or acquiring processor) as momentum for establishing a business relationship in the sense of money laundering law (and thus for triggering corresponding KYC obligations).
The FKBG no longer casts any shadows
The Act to Improve the Fight against Financial Crime (Finanzkriminalitätsbekämpfungsgesetz – ‘FKBG’) was intended to serve the purpose of making the fight against money laundering and terrorist financing more effective, but following the impending end of the coalition government, it has also been (temporarily) sidelined by legislators.
At the time of its consultation, the BaFin still assumed that the FKGB would be passed in the course of 2024 and had already tailored corresponding additions to its AuA AT (e.g. the expansion of the group of obliged entities in the insurance sector, PayTechLaw reported) to the FKGB, looking to the future. Since the revised AuA AT are now to apply from January 2025 and have thus overtaken the FKGB legislative process, all FKBG-related proposed amendments have been dropped from the final version.
However, one thing is certain: as soon as the FKGB (in its current or any other version) is adopted, the next revision of the BaFin AuA AT is on the agenda.
