CECA (Spanish Association of Savings and Retail Banks)
A relevant issue that has to be taken into account in the application of these Guidelines is the current divergences across Member States due to the different approaches applied as a consequence of the Directive (EU) 2015/849 (AMLD4) transposition. We have noticed that some requirements proposed by the Guidelines conflict with the national discretions adopted during the transposition of the Directive. In our opinion, the Guidelines should not introduce requirements not covered in Member States legislation.
Due to the aforementioned facts and in order to provide legal certainty, we consider that a general statement should be introduced for clarifying that national legislation will prevail over the Guidelines in any case.
Guideline 4.1.4 (identification of the member of the management body responsible for AML/CFT) recommends the identification of the member of the management body responsible for AML/CFT in accordance with art. 46(4) of Directive (EU) 2015/849 (AMLD4). However, we believe that it may not be applicable to all jurisdictions as the Member States have certain discretion in the transposition of European directives.
For instance, in Spain the Royal Decree-law 11/2018, of August 31st, that transposed AMLD 4, did not introduce such obligation. The transposition does not introduce such obligation of identification of the member of the management body for AML/FT purposes in the national legislation. Such legislation (art. 26 ter.1 of the Law 10/2010 on prevention of money laundering and terrorist financing) states that the obliged entity will designate a manager, that has administrative or managing powers, as representative before SEPBLAC (the FIU in Spain). Such person may not be part of the management body (Board of Directors). Therefore, such guideline creates confusion and inaccuracy regarding the concepts and definitions due to different interpretations and transpositions and we consider that it should be amended accordingly.
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CECA (Spanish Association of Savings and Retail Banks)
Due to the aforementioned facts and in order to provide legal certainty, we consider that a general statement should be introduced for clarifying that national legislation will prevail over the Guidelines in any case.