Response to consultation on draft Guidelines on the use of remote customer onboarding solutions
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Although obliged entities are also obligated to verify that any person purporting to act on behalf of the customer is so authorised and must identify and verify the identity of that person when performing the measures referred to in points (a) and (b), the scope of application does not cover this mandatory task as set out in Art. 13 para. 1 sent. 2 AMLD. Nevertheless, in the course of the following contents of the Guidelines, in section 4.2.3, marginal number 31, of the draft Guidelines, it is stated that financial sector operators should apply the identification process described in the Section 4.2.2. for the natural persons who are acting on behalf of legal persons. Therefore, we recommend to amend marginal number 7 on the scope of application of the Guidelines with a hint on the identification of natural persons who are acting on behalf of legal persons according to Art. 13 para. 1 sent. 2 AMLD.
In addition, it should be assessed if the scope of application of the Guidelines should also be enlarged on the mandatory determination whether the customer or the beneficial owner of the customer is a politically exposed person according to Art. 20 point a AMLD. This determination is a key part of initial CDD measures as it can be the trigger for enhanced CDD measures.
Furthermore, in the virtual public hearing of EBA on the draft Guidelines on 24 February 2022, EBA confirmed that the Guidelines shall not apply to the execution of customer due diligence measures in existing business relationships, as in cases according to Art. 11 lit. e and f AMLD. As a consequence, remote identification measures in existing business relationships remain unregulated on EBA level and may (still) be subject to the supervisory expectations of NCAs. Additionally, EBA also stated that the Guidelines should only be applied when an obliged entity executes all CDD measures according to Art. 13 para. 1 sent. 1 points (a) (b) and (c) AMLD. In these regards, we ask EBA to re-evaluate the possible benefits if the Guidelines could not only be applied for initial CDD measures but also for CDD measures in existing business relationships; secondly, it should be re-evaluated if the remote CDD measures of the Guidelines could also be applied for single CDD measures.
1. Do you have any comments on the section ‘Subject matter, scope and definitions’? If you do not agree, please set out why you do not agree and if possible, provide evidence of the adverse impact provisions in this section would have.
In marginal number 7, the scope of application of the Guidelines comprises the execution of CDD measures according to Art. 13 para. 1 sent. 1 points (a) (b) and (c) of the Directive (EU) 2015/849 (hereafter: AMLD). This entails the identification of the customer (point a), the identification of the beneficial owner (point b) and the assessment on the purpose and intended nature of the business relationship (point c).Although obliged entities are also obligated to verify that any person purporting to act on behalf of the customer is so authorised and must identify and verify the identity of that person when performing the measures referred to in points (a) and (b), the scope of application does not cover this mandatory task as set out in Art. 13 para. 1 sent. 2 AMLD. Nevertheless, in the course of the following contents of the Guidelines, in section 4.2.3, marginal number 31, of the draft Guidelines, it is stated that financial sector operators should apply the identification process described in the Section 4.2.2. for the natural persons who are acting on behalf of legal persons. Therefore, we recommend to amend marginal number 7 on the scope of application of the Guidelines with a hint on the identification of natural persons who are acting on behalf of legal persons according to Art. 13 para. 1 sent. 2 AMLD.
In addition, it should be assessed if the scope of application of the Guidelines should also be enlarged on the mandatory determination whether the customer or the beneficial owner of the customer is a politically exposed person according to Art. 20 point a AMLD. This determination is a key part of initial CDD measures as it can be the trigger for enhanced CDD measures.
Furthermore, in the virtual public hearing of EBA on the draft Guidelines on 24 February 2022, EBA confirmed that the Guidelines shall not apply to the execution of customer due diligence measures in existing business relationships, as in cases according to Art. 11 lit. e and f AMLD. As a consequence, remote identification measures in existing business relationships remain unregulated on EBA level and may (still) be subject to the supervisory expectations of NCAs. Additionally, EBA also stated that the Guidelines should only be applied when an obliged entity executes all CDD measures according to Art. 13 para. 1 sent. 1 points (a) (b) and (c) AMLD. In these regards, we ask EBA to re-evaluate the possible benefits if the Guidelines could not only be applied for initial CDD measures but also for CDD measures in existing business relationships; secondly, it should be re-evaluated if the remote CDD measures of the Guidelines could also be applied for single CDD measures.