(Utkast) Delegert kommisjonsforordning (EU) .../... av 14. mars 2024 om endring av delegert forordning (EU) 2016/1675 med hensyn til å tilføye Kenya og Namibia i tabellen i punkt I i vedlegget og slette Barbados, Gibraltar, Panama, Uganda og De forente arabiske emirater til den tabellen
Forebyggende tiltak mot hvitvasking av penger og terrorfinansiering: endringsbestemmelser om høyrisikotredjeland med strategiske mangler
Progresjon
Innsigelse (veto) vedtatt av Europaparlamentet 23.4.2024
Tidligere
- Utkast til delegert kommisjonsforordning sendt til Europaparlamentet og Rådet for klarering 14.3.2024
- EØS/EFTA-landenes utkast til EØS-komitebeslutning oversendt til Kommisjonen 10.4.2024
Redaksjonens kommentar
Europaparlamentet har 23. april 2024 vedtatt innsigelse mot Kommisjonens forslag og bedt om at Kommisjonen fremmer nytt forslag som tar hensyn til Europaparlamentets bekymringer knyttet til fjerning av De forente arabiske emirater fra listen.
Nærmere omtale
BAKGRUNN (fra kommisjonsforordningen)
(1) The Union has to ensure the effective protection of the integrity and proper functioning of its financial system and the internal market from money laundering and terrorist financing. Directive (EU) 2015/849 therefore provides that the Commission is to identify third-country jurisdictions which have strategic deficiencies in their regimes on anti-money laundering and countering financing of terrorism (‘AML/CFT’) that pose significant threats to the financial system of the Union (‘highrisk third countries’).
(2) Commission Delegated Regulation (EU) 2016/1675 identifies high-risk third countries with strategic deficiencies.
(3) Considering the high level of integration of the international financial system, the close connection of market operators, the high volume of cross-border transactions to and from the Union, as well as the degree of market openness, any AML/CFT threat posed to the international financial system is also a threat to the financial system of the Union.
(4) In accordance with Article 9(4) of Directive (EU) 2015/849, the Commission takes into account recent available information, in particular the recent Financial Action Task Force (FATF) public statements, the FATF list of ‘Jurisdictions under Increased Monitoring’, and FATF reports of the International Cooperation Review Group in relation to the risks posed by individual third countries.
(5) Since the latest amendments to Delegated Regulation (EU) 2016/1675, the FATF has updated its list of ‘Jurisdictions under Increased Monitoring’. At its plenary meeting in February 2024, the FATF added Kenya and Namibia to that list and deleted Barbados, Gibraltar, Uganda and the United Arab Emirates from that list. Given those changes, the Commission has conducted an assessment to identify high-risk third countries in accordance with Article 9 of Directive (EU) 2015/849.
(6) In February 2024, Kenya made a high-level political commitment to work with the FATF and the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG), which is its FATF-style regional body (FSRB), to strengthen the effectiveness of its AML/CFT regime. Since the adoption of its mutual evaluation report in September 2022, Kenya has made progress on some of the actions recommended in the mutual evaluation report by making amendments to its AML/CFT legislation to bring its framework in closer compliance with the FATF recommendations and establishing a case management system to better manage its international cooperation requests. Kenya will work to implement its FATF action plan: completing a terrorism financing (TF) risk assessment and presenting the results of the national risk assessment and other risk assessments in a consistent manner to competent authorities and the private sector and updating the national AML/CFT strategies; improving risk-based AML/CFT supervision of financial institutions (FIs) and designated non-financial businesses and professions (DNFBPs) and adopting a legal framework for the licensing and supervision of virtual asset service providers; enhancing the understanding of preventive measures by FIs and DNFBPs, including to increase suspicious transaction reports filing and implement targeted financial sanctions (TFS) without delay; designating an authority for the regulation of trusts and collection of accurate and up-to-date beneficial ownership information and implementing remedial actions for breaches of compliance with transparency requirements for legal persons and arrangements; improving the use and quality of financial intelligence products; increasing money laundering (ML) and TF investigations and prosecutions in line with risks; bringing the TFS framework in compliance with FATF Recommendations 6 and 7 and ensure its effective implementation; and revising the framework for non-profit organisations (NPO) regulation and oversight to ensure that mitigating measures are risk-based and do not disrupt or discourage legitimate NPO activity. Despite that commitment and progress, Kenya has not yet fully addressed the concerns that led to Kenya being added to the FATF’s list of ‘Jurisdictions under Increased Monitoring’. Kenya should therefore be considered a third-country jurisdiction that has strategic deficiencies in its AML/CFT regime that pose significant threats to the financial system of the Union as referred to in Article 9(1) of Directive (EU) 2015/849.
(7) In February 2024, Namibia made a high-level political commitment to work with the FATF and the ESAAMLG, which is its FSRB, to strengthen the effectiveness of its AML/CFT regime. Since the adoption of its mutual evaluation report in September 2022, Namibia has made progress on some of the actions recommended in the mutual evaluation report to ensure a common understanding of ML/TF/proliferation risks (PF) risk across key stakeholders as well as improve international cooperation. Namibia will work to implement its FATF action plan by: strengthening its AML/CFT risk based supervision through enhancing the human and resource capacities, conducting offsite and onsite inspections informed by supervisory risk assessment tools and applying effective, proportionate and dissuasive sanctions for breaches of AML/CFT obligations; enhancing preventive measures through inspections and outreach to ensure that FIs and DNFBPs apply enhanced due diligence measures as well as TFS obligations related to TF and PF without delay; increasing the filing of beneficial ownership information of legal persons and arrangements, and applying remedial actions and/or effective, proportionate and dissuasive sanctions against breaches of compliance with beneficial ownership obligations; providing the financial intelligence unit (FIU) with adequate human and financial resources, as well as trainings, to improve operational and strategic analysis; improving the cooperation between the FIU and law enforcement agencies (LEAs) to enhance the use and integration of financial intelligence in investigations; enhancing the operational capabilities of authorities involved in ML and TF investigations and prosecutions by providing them with adequate resources and targeted trainings; demonstrating the LEAs’ capabilities to effectively investigate and prosecute ML/TF cases; and approving the amended National Counter Terrorism Strategy. Despite that commitment and progress, Namibia has not yet fully addressed the concerns that led to Namibia being added to the FATF’s list of ‘Jurisdictions under Increased Monitoring’. Namibia should therefore be considered a third-country jurisdiction that has strategic deficiencies in its AML/CFT regime that pose significant threats to the financial system of the Union as referred to in Article 9(1) of Directive (EU) 2015/849.
(8) The Commission therefore concludes that Kenya and Namibia should be considered third-country jurisdictions which have strategic deficiencies in their AML/CFT regimes that pose significant threats to the financial system of the Union. Kenya and Namibia should therefore be added to the table in point I of the Annex to Delegated Regulation (EU) 2016/1675.
(9) The Commission has reviewed the progress of Barbados, Gibraltar, Panama, Uganda and the United Arab Emirates in addressing their strategic deficiencies. Those jurisdictions are identified as high-risk third-country jurisdictions in Delegated Regulation (EU) 2016/1675 but were deleted from the FATF list of ‘Jurisdictions under Increased Monitoring’ in October 2023 (Panama) and February 2024 (Barbados, Gibraltar, Uganda and the United Arab Emirates).
(10) The FATF has welcomed the significant progress made by Barbados, Gibraltar, Panama, Uganda and the United Arab Emirates in improving their AML/CFT regimes and has noted that those jurisdictions have established legal and regulatory frameworks to meet the commitments in their respective action plans on the strategic deficiencies identified by the FATF. Barbados, Gibraltar, Panama, Uganda and the United Arab Emirates are therefore no longer subject to the FATF’s monitoring process under its ongoing global AML/CFT compliance process and will continue to work with their FSRBs to further strengthen their AML/CFT regimes.
(11) Barbados, Gibraltar, Panama, Uganda and the United Arab Emirates have strengthened the effectiveness of their AML/CFT regimes and addressed technical deficiencies to meet the commitments in their action plans on the strategic deficiencies identified by the FATF. The Commission’s assessment of the available information leads it to conclude that Barbados, Gibraltar, Panama, Uganda and the United Arab Emirates no longer have strategic deficiencies in their AML/CFT regimes. It is therefore appropriate to delete Barbados, Gibraltar, Panama, Uganda and the United Arab Emirates from the table in point I of the Annex to Delegated Regulation (EU) 2016/1675.
(12) Delegated Regulation (EU) 2016/1675 should therefore be amended accordingly,