Decision of the Tunisian Financial Analysis Commission No. 2017-03 of March 2, 2017 on Beneficial Owners

Decision of the Tunisian Financial Analysis Commission No. 2017-03 of March 2, 2017 on Beneficial Owners

The Tunisian Financial Analysis Commission,

Having regard to Organic Law No. 2015-26 of August 7, 2015 on the fight against terrorism and the repression of money laundering, particularly Articles 108, 120, and 125 thereof;

Having regard to Government Decree No. 2016-1098 of August 15, 2016 establishing the organization and operating procedures of the Tunisian Financial Analysis Commission;

Having regard to Decision No. 2017-01 of the Tunisian Financial Analysis Commission of March 2, 2017 setting out guiding principles regarding the reporting of suspicious operations and transactions;

Having regard to Decision No. 2017-02 of the Tunisian Financial Analysis Commission of March 2, 2017 setting out guiding principles for financial professions regarding the detection and reporting of suspicious operations and transactions;

And after deliberation,

Decides:

Article 1: Subject to the obligation of suspicious transaction reporting as mentioned in Article 107 of Organic Law No. 2015-26 on the fight against terrorism and money laundering, obligated entities must take reasonable measures in accordance with Article 108 of said Organic Law to verify the identity of the beneficial owner, particularly by consulting relevant information or data obtained from reliable sources, thereby ensuring they have correctly identified the beneficial owner.

These measures are taken when:

• business relationships are established;
• occasional transactions are performed with a value equal to or greater than 10,000 dinars or that involve electronic transfers;
• there is suspicion of money laundering or terrorist financing;
• there is doubt regarding the accuracy or relevance of customer identification data, or regarding the authenticity of data and documents related to the transaction or operation to be executed.

The verification of the beneficial owner's identity applies to operations carried out by currency exchange offices mentioned in Article 1 of Decision No. 2017-02 of March 2, 2017 by the Tunisian Financial Analysis Commission setting out guiding principles for financial professions on the detection and reporting of suspicious operations and transactions.

Article 2: Obligated entities must implement a beneficial owner identification procedure consisting of recording the names, first names, dates, and places of birth of the relevant natural persons.

This identification must be carried out using appropriate means, such as the client's written declaration on the "Know Your Customer - KYC" form or databases related to companies, legal persons, and legal structures.

Article 3: In accordance with Articles 108 and 109 of Organic Law No. 2015-26, obligated entities must update the identification details of beneficial owners and re-identify these persons when they have good reason to believe that their identity and previously obtained identification details are no longer accurate or relevant, for example due to a change in the major shareholder of a company.

Obligated entities must make all information and data regarding beneficial owners available to the supervisory authorities and the Tunisian Financial Analysis Commission upon request.

Article 4: These guiding principles specify the following for the proper implementation of Articles 1, 2, and 3:

• The beneficial owner is a natural person. They are not necessarily the declared beneficiary of the operation or transaction. It is important to clearly distinguish these two concepts.
• The beneficial owner is not necessarily the client, whether the latter is a natural person, a legal entity, or a legal structure.
• The beneficial owner and the beneficiary may, in certain cases, be the same person, for example when the beneficial owner of a remittance ordering client is also its recipient.
• A business relationship, operation, or transaction with an occasional customer may conceal one or more beneficial owners.
• Certain business relationships or operations conducted with occasional customers reveal that the beneficiary and the beneficial owner are not distinct.

Article 5: For the purposes of Article 1, "beneficial owner" means:

• The natural person or persons who ultimately own or control the client, whether the latter is a natural person, a legal entity, or a legal structure.
• The natural person in whose name the transaction(s) is/are actually conducted, either legally or factually.
• The natural person or persons who ultimately exercise effective control, in fact or by law, over a legal entity or legal structure.

1 According to the FATF Glossary

Article 6: When the client is a company, the following are considered beneficial owner(s):

• The natural person or persons who directly or indirectly hold shares in the company's capital or voting rights as set by current regulations, and failing that, shares in the capital or voting rights conferring effective control over the company.
• The natural person or persons who exercise, by any other means, in fact or by law, a power of control over the management, administrative, or executive bodies, or over the general assembly, or over the company's operations.

Article 7: When the client is a legal entity other than a company (e.g., association, foundation, or economic interest grouping), the following are considered beneficial owner(s):

• The natural person or persons designated by a legal instrument for this purpose, who are to become holders of at least 25% of the assets of the legal entity.
• The natural person or persons who, in fact, hold at least 25% of the assets of the legal entity.

In general, obligated entities must identify the beneficial owner(s) among the natural person or persons who exercise, by any other means, in fact or by law, a power of control over the management, administrative, or executive bodies, or over the general assembly, or over the operations of the legal entity.

Article 8: In the case of earmarked estates under foreign law, such as trusts and fiduciaries (foundations) and other similar structures, the following are considered beneficial owner(s):

• The natural person or persons designated by a legal instrument for this purpose, who are to become holders of at least 25% of the assets transferred to an earmarked estate under foreign law.
• The natural person or persons who, in fact, hold at least 25% of the assets of an earmarked estate under foreign law.
• The natural person or persons belonging to a group in whose interest an earmarked estate under foreign law was established, when the natural person beneficiaries have not yet been designated.

In general, obligated entities must identify the beneficial owner(s) among the natural person or persons who exercise, by any other means, in fact or by law, a power of control over the earmarked estate under foreign law.

Banks, financial institutions, lawyers, insurance companies, investment firms, and certified accountants must, when acting in the capacity of fiduciary or trustee, declare their status as fiduciary or trustee to the financial institution when establishing the business relationship or executing a transaction.

Article 9: For the proper implementation of Article 8, these guiding principles define the following concepts:

• Earmarked estate: Assets earmarked for the creation of a trust/fiduciary or other legal structures.
• Trust/Fiduciary and similar legal structures: The operation by which one or more settlors transfer assets, rights, or securities, or a collection thereof, present or future, to one or more trustees who, holding them separate from their own assets, act in a specific purpose for the benefit of one or more beneficiaries.

Other similar legal structures operating on the same model, such as "el wakf" or "el habouss", also fall under the category of earmarked estates under foreign law.

• A trust/fiduciary contract or similar structure involves three parties:
  • The settlor: A natural or legal person who owns assets and decides to transfer the ownership of one or more of their assets for a specific purpose.
  • The fiduciary/trustee: The person who receives the ownership of the transferred assets and must administer and manage them according to the mandate assigned by the settlor. Nevertheless, the transferred assets do not enter the fiduciary's personal estate. They constitute an estate called "earmarked estate". The fiduciary or trustee may be a bank, financial institution, lawyer, insurance company, investment firm, or certified accountant.
  • The beneficiary: A natural or legal person for whose benefit the purpose of the trust/fiduciary is realized. They may be the settlor or the fiduciary.

Article 10: This decision enters into force as of March 15, 2017.