On October 31, 2021, the Law of March 30, 2021, amending the Law on Anti-Money Laundering and Financing of Terrorism came into force in terms of its entire provisions. The AML amended the provisions regarding the conditions for the application of financial security measures and the requirements for the protections afforded to whistleblowers. The catalog of obliged institutions was also amended, and the circle of institutions to submit information to the Central Register of Beneficial Owners was expanded. In addition to the above, the Act also introduces changes that are not directly related to preventing money laundering or terrorist financing. However, they may have a significant impact on the activities of certain entrepreneurs.
New types of regulated activity
Following Chapter 11A of the AML Act, the regulated activities will become:
- activities involving trading in virtual currencies,
- activity referred to collectively in the Act as “activity on behalf of companies and trusts”.
As a result, entrepreneurs who plan to engage in or are already engaged in such activities must meet the requirements outlined in the Act. This includes the obligation to obtain an entry in the official register of regulated activities.
Entrepreneurs to whom the requirements apply
The amended AML Act establishes two categories of entities that must meet additional requirements to legally conduct business. The first of these is the aforementioned activity for companies and trusts. This activity includes the provision of services in the area of:
- forming legal persons or organizational units without legal personality,
- performing the function of a board member or enabling another person to perform this function or a similar function in a legal person or organizational unit without legal personality,
- providing a registered office, business, or correspondence address and other related services to a legal person or unincorporated entity,
- act or enable another person to act as trustee of a trust created by a legal transaction,
- act or enable another person to act as executor of shares for an entity other than a company listed on a regulated market that is subject to disclosure requirements under European Union law or subject to equivalent international standards.
Activities for companies and trusts within the meaning of the AML Act are not activities of attorneys and legal advisors. The same applies to law firms of lawyers or solicitors. Even if, in the course of their own business, all of the above entities undertake the activities listed above.
The second category of entities for which the AML Act establishes specific requirements are entrepreneurs conducting business in the area of trading in virtual currencies. The Act defines trading in virtual currencies as an activity consisting in:
- the exchange between virtual currencies and means of payment,
- the exchange between individual virtual currencies
- intermediation in exchange of virtual currencies,
- keeping in electronic form and making available to users a set of data providing authorized persons with the possibility of using virtual currency units, including carrying out transactions for their exchange.
Conditions for undertaking and conducting regulated activities for companies and trusts
The basic requirement for entrepreneurs performing activities for companies and trusts is the requirement of having no criminal record. Such activity cannot be conducted by a person who has been validly convicted of an intentional crime against:
- the activity of state institutions and local self-government,
- the administration of justice,
- the credibility of documents,
- property,
- economic turnover and property interests in civil law transactions,
- dealing in money and securities, or for the crime of financing terrorism.
Therefore, persons validly convicted of the above-mentioned crimes cannot be members of the management board. They also cannot become partners entitled to represent or manage the affairs of the company. This applies when the activity for the benefit of companies and trusts is to be performed by a legal person or an organizational unit without legal personality.
In addition, the AML Act has seen the emergence of requirements for the relevant qualifications of persons associated with an entity:
- an individual performing activities for companies and trusts,
- a member of the board of directors,
- a partner representing or managing the affairs of the entity.
These individuals should either have completed a training or course covering the relevant issues or have at least one year of experience in their area of responsibility. Moreover, an entity conducting activities on behalf of companies and trusts should obtain an entry in the register of such entities – kept by the minister competent for finance.
Conditions for conducting regulated activity in the scope of trading in virtual currencies
What requirements must be met by natural persons, legal entities, or organizational units (without legal personality) conducting activity in the field of trading in virtual currencies? The conditions to be met are similar to those for the activities of companies and trusts. This similarity includes the aforementioned lack of criminal record.
Additionally, an individual running a virtual currency trading business, a board member, or a partner authorized to represent or conduct the affairs of the company should have relevant knowledge or experience related to the business. This involves completing a training course or course that covers legal or practical issues related to trading in virtual currencies. There is also a second option, instead of training. Such a person can meet the qualification requirement if he or she demonstrates at least one year of experience in the business.
Similarly, an entity conducting business activity in the field of trading in virtual currencies should obtain an entry in the register of regulated activity kept by the minister competent for finance.
The obligation to register is getting closer – the register is already active
The Minister of Finance has entrusted the Director of the National Chamber of Fiscal Administration in Katowice with keeping the register. This has been done under two regulations:
- of 28 October 2021 on the designation of the National Fiscal Administration authority to perform the tasks of the authority competent to maintain the register of virtual currency activities,
- of 29 October 2021 on the designation of the National Tax Administration authority to perform the tasks of the authority competent to keep the register of activities for companies or trusts.
For entities already engaged in activities for companies and trusts or trading in virtual currencies, a deadline for submitting applications has also been set. Applications for entry in the registers of regulated activities should be submitted by 30 April 2022. Entities that start this activity should already obtain an entry in the register when they start their activity.
Additionally, the National Tax Administration has announced a possible deadline for the electronic submission of applications. As of 31 October 2021, applications for entry in the registers can be submitted using the ePUAP platform.
Penalties for conducting business without an entry in the register
Articles 153a and 153b of the AML Act leave no illusions about the sanctions. According to them, conducting activity for the benefit of companies and trusts and activity in the field of virtual trading without the required entry in the register is threatened with a fine of up to PLN 100,000.
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