Thanking for the opportunity given to express the observations on the provision in consultation, it is hoped that the same will take into account the fact that in the "Proposal for a regulation of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering or financing of terrorism" there are specific proposals dedicated to the Compliance function.
It is therefore hoped that coordination between the initiatives will be promoted.
4.1.4 Identification of the member of the management body responsible for AML/CFT
Point 17. “The member of the management body to be identified in accordance with Article 46(4) of Directive (EU) 2015/849 should in particular have adequate knowledge, skills and experience regarding the identification, assessment and management of the ML/TF risks, and the implementation of AML/CFT policies, controls and procedures, with a good understanding of the financial sector operator’s business model and the sector in which the financial sector operator operates, and the extent to which this exposes the financial sector operator to ML/TF risks.”
First of all, whit regards to the role of senior manager responsible for AML/CFTC, it is appropriate that the Guidelines clarify whether he should be identified and appointed within the management body in its strategic supervision function (supervision) or within the management body in its management function.
Point 18. “The member of the management body referred to in Article 46(4) of Directive (EU) 2015/849 should have sufficient time and resources to perform his/her AML/CFT duties effectively. They should report comprehensively about their tasks as mentioned in section 4.1.6 and regularly inform and where necessary without undue delay the management body in its supervisory function.”
The role outlined by the Guidelines in point 18 would seem to be completely new and not aligned with those organizational systems in which the management functions are already carried out by a single member in his capacity as manager director.
It is requested to clarify and confirm that banks and financial intermediaries can assign the role of "member of the management body responsible for the AML / CFT to the member who already performs the management functions (for example the Chief Executive Officer).
Alternatively, they should be able to be authorized to assign the duties referred to in paragraph 4.1.6 to a senior manager, appointed in accordance with paragraph 4.1.5.
4.2.4 Tasks and role of the AML/CFT compliance officer
It is necessary to clarify whether the role thus outlined is suitable for absorbing the figure of the AML/CFT Compliance Officer or through the latter the Authority had in mind to insert an additional control figure that cannot be superimposed on that of the head of the anti-money laundering function.
Point. 48. “The AML/CFT compliance officer should make recommendations to the management body on measures in relation to any supervisory examination by the competent authority and the findings resulting there from. Depending on the ML/TF risk exposure and the size of the financial sector operator, the AML/CFT compliance officer should also make recommendation on audits, whether carried out by the financial sector operator’s internal audit function, an external auditor or a third party appointed by the financial sector operator and the findings resulting there from.”
First of all, the Guidelines show clarify whether the compliance officer should make its recommendation to the management body in its supervisory function (supervisory) or in its management function.
Point. 53. “In relation to the AML/CFT compliance officer’s obligation under Article 33(2) of Directive (EU) 2015/849 to transmit information referred to in paragraph (1) of that Article, he/she should make sure that other members of staff whose assistance is sought with the discharge of aspects of this function have the skills, knowledge and suitability to assist with that task. Due consideration should be given to the sensitivity and confidentiality of information that may be disclosed and the non-disclosure obligations the financial sector operator has to adhere to.
It's necessary to clarify whether the provision intends to assign the task of reporting suspicions transaction exclusively to the Compliance Officer AML/CTF. In fact, in the current Italian regulatory framework for reporting of suspicious transactions The Bank or the financial intermediary can appoint their own delegate to be delegated and the delegation can also be conferred on the head of anti-money laundering function