Order ECC/2402/2015 of 11 November creating the Centralized Anti-Money Laundering and Counter-Terrorist Financing Body of the College of Property, Commercial and Movable Property Registrars

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Document BOE-A-2015-12350

Document BOE-A-2015-12350

Order ECC/2402/2015, of November 11, creating the Centralized Body for the Prevention of Money Laundering and Terrorist Financing of the College of Registrars of Property, Commercial and Movable Property. View consolidated text

Published in:

« BOE » no. 274, of November 16, 2015, pages 107713 to 107717 (5 pages)

Section:

I. General Provisions

Department:

Ministry of Economy and Competitiveness

Reference:

BOE-A-2015-12350

Permalink ELI:

https://www.boe.es/eli/es/o/2015/11/11/ecc2402

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Text

ORIGINAL TEXT

The group of property, commercial and movable property registrars has seen how, in recent years, their position, in relation to the functions of preventing money laundering and terrorist financing, has changed profoundly.

In accordance with the legislation in force until April 2010, property, commercial and real estate registrars were only obliged to comply with the duty of collaboration imposed on all authorities and officials, consisting of informing the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences (Executive Service of the Commission) of the facts of which they had knowledge in the exercise of their function, which could constitute an indication or certainty of money laundering.

This situation changes radically with the promulgation of Law 10/2010, of April 28, which includes in its article 2.1.n) property, commercial and movable property registrars as a new category of obligated subjects.

This status determines the attribution of a series of preventive obligations that each of the property, commercial and movable property registrars is obliged to fulfill individually. Nevertheless, Law 10/2010, of April 28, in its article 27, provides that through an Order of the Minister of Economy and Finance, currently the Minister of Economy and Competitiveness, the constitution of centralized prevention bodies for the regulated professions subject to said law may be agreed upon. Subsequently, article 44 of the Regulation of Law 10/2010, of April 28, approved by Royal Decree 304/2014, of May 5, determined what the competencies corresponding to the centralized prevention bodies would be.

The creation of centralized prevention bodies aims to intensify and promote the collaboration of the regulated professions with judicial, police and administrative authorities, allowing a higher level of specialization in these tasks within the group of obligated subjects.

In this way, a double objective is achieved. On the one hand, it facilitates compliance by individual subjects with preventive regulations, by having a specialized body in charge of administrative or procedural type functions and which, likewise, channels the suspicious operational communications that registrars submit. On the other hand, the creation of this type of central bodies is also a mechanism that benefits the homogeneity of the measures applied by the group when complying with the provisions established in Law 10/2010, of April 28, and the Regulation of Law 10/2010, of April 28, on the prevention of money laundering and terrorist financing, approved by Royal Decree 304/2014, of May 5, avoiding potential divergent interpretations on the scope and meaning of the obligations.

Furthermore, this same specialization determines an improvement in the quality of the information received by the authorities and a streamlining in the submission of requested information.

The order is issued under the regulatory authorization contained in article 27.1 of Law 10/2010, of April 28, in accordance with which, the Minister of Economy and Competitiveness, prior to compliance with the appropriate legal procedures, may agree on the constitution of centralized prevention bodies for the regulated professions subject to the obligations established in said law.

The order has been submitted to the mandatory report of the members of the Commission for the Prevention of Money Laundering and Monetary Offences, in accordance with what is established in article 44.2 k) of Law 10/2010, of April 28, as well as to the prior report of the Spanish Agency for Data Protection, in conformity with article 37.1 h) of Organic Law 15/1999, of December 13, on the Protection of Personal Data and with article 5 b) of the Statute of the Spanish Agency for Data Protection, approved by Royal Decree 428/1993, of March 26.

By virtue thereof, in accordance with the Council of State, I order:

Article 1. Scope of application.

This order shall apply to all property, commercial and movable property registrars in Spain (the registrars), who must follow the procedures and requirements established in it to comply with the obligations contained in Law 10/2010, of April 28 on the prevention of money laundering and terrorist financing, and the Regulation of Law 10/2010, of April 28, on the prevention of money laundering and terrorist financing, approved by Royal Decree 304/2014, of May 5.

Article 2. Centralized Body for the Prevention of Money Laundering and Terrorist Financing of the College of Registrars of Property, Commercial and Movable Property.

The College of Registrars of Property, Commercial and Movable Property (College of Registrars) will constitute a centralized prevention body with the function of promoting and channeling the collaboration of registrars with judicial, police and administrative authorities, in accordance with what is provided in article 27 of Law 10/2010, of April 28.

Article 3. Incorporation into the Centralized Prevention Body of the College of Registrars of Property, Commercial and Movable Property.

The approval of this order will imply the automatic incorporation into the centralized prevention body of all registrars.

Article 4. Director of the Centralized Prevention Body of the College of Registrars of Property, Commercial and Movable Property.

1. The Board of Directors of the College of Registrars will designate a director of the centralized prevention body. The direction of the centralized prevention body must be performed by a person who meets the conditions of technical and professional experience in the matter of prevention of money laundering and terrorist financing that make them suitable for the performance of the position. To these effects, they must have specific training and experience of at least five years, in tasks of prevention of money laundering and terrorist financing. Likewise, the provisions that, in the matter of high ethical standards, article 40 of the Regulation of Law 10/2010, of April 28, establishes, will apply.

2. The Director of the centralized prevention body, in accordance with what is provided in article 27 of Law 10/2010 of April 28, will hold by virtue of office the status of representative before the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences (Executive Service of the Commission). To these effects, the proposal for the appointment of the representative, accompanied by a detailed description of their professional career, will be communicated to the Executive Service of the Commission, which, in a reasoned manner, may formulate reparations or observations.

Article 5. Special examination of operations.

1. The centralized prevention body will examine with special attention those operations in which the circumstances established in article 17 of Law 10/2010, of April 28, concur, submitted for their analysis by the registrars or detected directly by the Centralized Prevention Body, through the treatment of the information contained in the registry databases.

For the adequate performance of the analysis function, registrars must provide the centralized prevention body with any information that it requires of them for the exercise of their examination function.

2. The centralized prevention body will maintain, for a period of ten years, a detailed record of all operations that have been subject to special examination, documenting the phases of the analysis, the management carried out and the internal and external sources of information consulted, including, likewise, the information relating to the decision on the appropriateness or not of the communication of the operation and its causes.

Article 6. Communication of operations.

1. If, after the examination referred to in the previous article, there were indications or certainty that the fact or operation is linked to money laundering or terrorist financing, the director of the centralized prevention body will communicate the operation in writing to the Executive Service of the Commission, in the name and on behalf of, if applicable, the registrar who had submitted it for analysis.

2. The communications made to the Executive Service of the Commission will contain, in any case, the information established in article 18.2 of Law 10/2010, of April 28, indicating, likewise, the identification data of the registrar or registrars involved.

3. The communication of operations to the Executive Service of the Commission will be carried out telematically, without prejudice to the use of other media when necessary. The communication system used must ensure the full confidentiality and integrity of the transmitted information.

Article 7. Risk analysis.

1. The centralized prevention body will carry out the analysis of the risks that, in the matter of money laundering and terrorist financing, the activity developed by the collegiate officials faces.

This risk analysis must be in writing, comprising the identification and evaluation of existing risks based on the characteristics of the interveners, the affected geographical areas and the types of acts or operations concerned.

2. The risk analysis, which must be reviewed periodically to guarantee its validity, will be the basis from which the internal control procedures applicable by the collegiate officials and the centralized prevention body are designed.

Article 8. Procedures Manual.

1. The centralized prevention body will elaborate and keep updated the Procedures Manual in the matter of prevention of money laundering and terrorist financing directed to guarantee the compliance by registrars of their obligations in this matter and whose minimum content will adjust to what is established in article 33 of the Regulation of Law 10/2010, of April 28.

2. The procedures manual must be approved by the Board of Directors of the College of Registrars, which will ensure, through the centralized prevention body, that these apply the referred manual in their professional activity.

3. The updated procedures manual must always be accessible for its use and consultation by all incorporated officials and the personnel dependent on them.

Article 9. Training.

The centralized prevention body will organize, in accordance with the approved annual plan, training actions, in-person or telematic, directed to the registrars and their personnel, and focused on the knowledge of the current legal obligations, as well as on the internal procedures put into place to comply with them.

These training processes must have an evaluation system of the achievement by the recipients.

Article 10. Supervision.

Without prejudice to the competencies of the Executive Service of the Commission, in the matter of supervision of the compliance of the obligations of Law 10/2010, of April 28, and its development regulations, the centralized prevention body will carry out inspection actions regarding the incorporated officials, in the terms established in article 44.2.i) of the Regulation of Law 10/2010, of April 28.

To these effects, the Board of Directors of the College of Registrars will approve annually the supervision plan, which must be structured according to risk criteria.

The approved plan will be sent to the Executive Service of the Commission.

Article 11. Duty of confidentiality.

The registrars and the members of the centralized prevention body will not reveal, neither to the applicant for the registration nor to third parties, the supply of information to the Executive Service of the Commission, at its request, nor the realization of a suspicious operational communication or the fact of carrying out the special examination process.

To these effects, the internal procedures must establish agile communication mechanisms, between the registrars and the centralized prevention body and of this with the Executive Service of the Commission, which allow the exchange of information with the adequate confidentiality.

Article 12. Execution of restrictive measures and international financial sanctions.

1. The prohibitions on disposal that affect movable and immovable property, adopted under the auspices of European Union regulations of direct application in the countries of the European Union or agreed by the Council of Ministers, in application of article 42 of Law 10/2010, of April 28, will be recorded in the corresponding registries, by marginal note of the domain registration, expressing the origin and content of the prohibition.

The validity of the marginal note will be that indicated for the prohibition on disposal in the provision or agreement by virtue of which it has been practiced and, in default of term, its duration will be indefinite, being cancelled when the name of the registry holder disappears from the list dictated under the auspices of the European Union regulation or when it is disposed by the Council of Ministers that ordered it.

2. The centralized prevention body will periodically check the lists of natural and legal persons, contained in the European Union regulations referred to in paragraph 1, cross-referencing them with the registry databases.

If it results that any of the examined names appears as the holder of registered assets, it will communicate it to the competent Registry so that, if applicable, it records it in accordance with what is indicated in paragraph 1, or for its cancellation, if the name has been removed from the list.

The same communication will be made regarding the Agreements of the Council of Ministers, both for the practice and for the cancellation of the marginal note, without prejudice to its publication in the "Official State Gazette".

3. The Registry will inform the centralized prevention body of the entries made or of its impossibility, for the purposes of its communication to the Deputy Directorate General for Inspection and Control of Capital Movements and Monetary Offences.

Article 13. Responsible and person in charge of the treatment of data files.

The centralized prevention body will hold, with respect to the data files created for the compliance with what is provided in Law 10/2010, of April 28, and its development regulations, the status of person in charge of the treatment, in accordance with what is provided in article 32.4 of the aforementioned law, and for the purposes foreseen in Organic Law 15/1999, of December 13, on the Protection of Personal Data.

To these same effects, it will have the status of responsible for the treatment, in the terms resulting from article 44.6 of the Regulation of development of Law 10/2010, of April 28.

Final Provision First. Authorization.

The General Secretariat of Treasury and Financial Policy is authorized to issue Instructions for the application of what is provided in this order.

Final Provision Second. Entry into force.

This order will enter into force four months after its publication in the "Official State Gazette".

Madrid, November 11, 2015.–The Minister of Economy and Competitiveness, Luis de Guindos Jurado.

Analysis

ANALYSIS

Rank: Order

Date of provision: 11/11/2015

Date of publication: 16/11/2015

Date of entry into force: 16/03/2016

Previous References

IN CONFORMITY with art. 27.1 of Law 10/2010, of April 28 (Ref. BOE-A-2010-6737 ).

CITA Regulation approved by Royal Decree 304/2014, of May 5 (Ref. BOE-A-2014-4742 ).

Matters

College of Registrars

Advisory Committees

Organized Crime

Monetary Crimes

Commercial Registry

Property Registries

Terrorism

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