Instruction No. 15 (Modification No. 3)

BANQUE CENTRALE DU CONGO

THE GOVERNOR

INSTRUCTION NO. 15 TO CREDIT INSTITUTIONS AND FINANCIAL COMPANIES ESTABLISHING NORMS ON THE FIGHT AGAINST MONEY LAUNDERING AND THE FINANCING OF TERRORISM AND THE PROLIFERATION OF WEAPONS OF MASSIVE DESTRUCTION

(Modification No. 3)

The Central Bank of the Congo,

Having regard to Organic Law No. 18/027 of 13 December 2018 on the organization and functioning of the Central Bank of the Congo, particularly Articles 10 and 43;

Having regard to Law No. 22/068 of 27 December 2022 on the fight against money laundering and the financing of terrorism and the proliferation of weapons of mass destruction, particularly Title III;

Having regard to Law No. 22/069 of 27 December 2022 on the activity and supervision of Credit Institutions;

Having regard to Ordinance-Law No. 23/010 of 13 March 2023 on the Digital Code, particularly Articles 171 to 182.

Has adopted the following provisions regarding the fight against money laundering and the financing of terrorism and proliferation:

TITLE I: GENERAL PROVISIONS

CHAPTER I: OBJECT

Article 1:

This Instruction aims to specify the implementing measures in the field of the fight against money laundering and the financing of terrorism and the proliferation of weapons of mass destruction for the covered institutions referred to in Article 3 below.

Article 2:

The provisions of this Instruction are based on a risk-based approach, enabling covered entities to ensure that measures aimed at preventing or mitigating the risk of money laundering, terrorism financing, and proliferation financing are proportionate to the identified risks and lead to decisions on how to efficiently and effectively allocate their own resources.

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CHAPTER 2: SCOPE OF APPLICATION

Article 3:

This Instruction applies to the credit institutions and financial companies listed below, hereinafter referred to as "covered institutions" or "covered entities":

(i) credit institutions:

• banks;
• savings banks;
• microfinance companies;
• savings and credit cooperatives.

(ii) financial companies:

• leasing companies;
• factoring companies;
• guarantee companies;
• microcredit enterprises;
• money exchange offices;
• payment institutions, including payment instrument issuers, electronic money enterprises, and financial messaging services;
• specialized financial institutions, including development banks and investment banks.

Article 4:

In addition to the credit institutions and financial companies set out in Article 3, all other structures approved by the Central Bank of the Congo whose nature of activities requires the implementation of measures against money laundering, terrorism financing, and proliferation financing are also subject to this Instruction.

CHAPTER 3: DEFINITIONS

Article 5:

For the purposes of this Instruction, the following terms shall mean:

• criminal activity: any criminal act constituting an offense of money laundering, terrorism financing, and proliferation, as well as any other underlying offense to money laundering;
• acts constituting money laundering offenses: any act committed intentionally involving:

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• the conversion, transfer, or manipulation of property by any person who knows that such property originates from criminal activity or participation in criminal activity, with the aim of concealing or disguising the illicit origin of said property or helping any person involved in the commission of the offense to escape the legal consequences of their acts;

• the concealment or disguise of the nature, origin, location, disposition, movement, or ownership of property or related rights by any person who knows that such property originates from criminal activity or participation in criminal activity;

• the acquisition, possession, or use of property by a person who knows, suspects, or ought to have known that said property originates from criminal activity or participation in criminal activity;

• conspiracy or participation in an association to commit a money laundering offense, association to commit said act, attempts to perpetrate it, aiding, instigating, or advising a natural or legal person to execute or facilitate its execution.

• terrorist act:

• any act or threat of an act in violation of criminal laws, likely to endanger the life, physical integrity, or freedoms of a person or group of persons, causing or likely to cause damage to private or public property, natural resources, the environment, or cultural heritage, and committed with the intention of:

a) intimidating, provoking a state of terror, forcing, exerting pressure, or compelling any government, body, institution, population, or group thereof, to take any initiative or refrain from doing so, to adopt or renounce a particular position, or to act according to certain principles; b) seriously disrupting the normal functioning of public services, the provision of essential services to the population, or creating a crisis situation within the population; c) creating a general insurrection.

• any promotion, financing, contribution, order, aid, instigation, encouragement, attempt, threat, conspiracy, organization, or provision of equipment to any person with the intention of committing any act mentioned in the bullet point above;

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• virtual asset: a digital representation of value that can be digitally exchanged or transferred, and can be used for payment or investment purposes, excluding digital representations of fiat currencies, securities, and other financial assets;
• agent: any natural or legal person providing fund or value transfer services, whether under a contract or under the direction of a fund transfer service provider or any natural or legal person acting as an intermediary between two or more parties in transactions involving the sale or lease of real estate;
• competent authority: any public authority designated as responsible for the fight against money laundering and/or terrorism financing and proliferation;
• prosecuting authority: a body that, by virtue of law or regulation, is invested, even on an occasional basis, with the mission of exercising public prosecution;
• non-profit association: any association, foundation, or non-governmental organization that is apolitical, constituted in accordance with current legal and regulatory texts, whose main purpose is the collection of funds for charitable, religious, cultural, educational, social, or fraternal purposes, or for other types of good works;
• beneficial owner: the natural person(s) who ultimately own or control, directly or substantially, the activities of a person or entity on whose behalf a transaction is carried out. It is also a person who ultimately exercises effective control over a legal person or legal arrangement;
• occasional client: any person who does not have an account opened with a credit institution or financial company that would subject them to prior identification diligence carried out previously for regular clients;
• banking correspondence: banking services provided by a correspondent bank to a client bank;
• correspondent: any manager or employee authorized to respond to requests from the National Financial Intelligence Unit, abbreviated CENAREF;
• legal arrangements: express trusts or similar legal arrangements;
• reporting person: any manager or employee authorized to file suspicious transaction reports;
• parallel financial investigation: a financial investigation conducted in parallel or within the framework of a criminal investigation into a money laundering or terrorism financing case and/or an underlying offense;
• trust: a contract by which one or more settlors transfer property, rights, or securities, or a set of present or future assets, to one or more trustees, holding them separate from their own estate, acting for a determined purpose for the benefit of one or more beneficiaries;

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• terrorism financing: any act committed by a natural or legal person or any other organization that, by any means whatsoever, directly or indirectly, deliberately provides or collects funds, assets, and other financial resources with the intention of using them, or knowing that they will be used, in whole or in part, for the commission of:

• one or more terrorist acts;
• one or more terrorist acts, by a terrorist or a group of terrorists.

• freeze: the prohibition of transferring, converting, disposing of, alienating, or moving any property, equipment, or instrument following a measure taken by a competent authority or competent jurisdiction within a freezing mechanism, and this for the duration of the validity of said measure, or until a confiscation decision is taken by a competent authority;
• financial group: a group consisting of a parent company or any other type of legal person exercising control and coordination functions over the rest of the group, for group supervision purposes, as well as branches and/or subsidiaries subject to money laundering and terrorism financing and proliferation policies at the group level;
• regulated group: an economic entity formed by a set of companies belonging to a natural or legal person legally constituted;
• underlying offense: refers to any criminal offense, committed even abroad, that enabled its perpetrator to obtain proceeds;
• politically exposed person, abbreviated PEP: any natural person of Congolese or foreign nationality who exercises or has exercised within the preceding thirty-six (36) months, in a third State or in the Democratic Republic of Congo, one of the following functions:

• For National Politically Exposed Persons:

a) Head of State; b) Head of Government; c) Member of the Central or Provincial Government; d) Member of the National Parliament or Provincial Assembly; e) General Secretaries of institutions, Ministries, and General Directors of public services and State establishments; f) Member of the Governing Body of a political party or grouping; g) Member of the Constitutional Court, Court of Cassation, Council of State, and attached Public Prosecutors' Offices; h) Member of the Court of Auditors; i) Manager or member of the Board or governing body of the Central Bank of the Congo; j) Ambassador, Chargé d'affaires, Consul General, Career Consul;

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k) General officer or Senior Officer commanding the Armed Forces or the Congolese National Police; l) Member of an administrative, management, or supervisory body of a public or parastatal enterprise; m) State public agents holding the rank of Director.

• For Foreign Politically Exposed Persons:

a) Head of State; b) Head of Government; c) Member of the Central Government; d) Member of a National Parliamentary Assembly; e) General Director of a Ministry; f) Member of the Governing Body of a foreign political party or grouping; g) Member of a Supreme Court, Constitutional Court, or another jurisdiction whose decisions are not, except in exceptional circumstances, subject to appeal; h) Member of a Court of Auditors; i) Manager or member of the governing or administrative body of a central bank; j) Ambassador, Chargé d'affaires, Consul General, Career Consul; k) General officer or Senior Officer commanding an army or public force; l) Member of an administrative, management, or supervisory body of a public or parastatal enterprise.

• For Politically Exposed Persons of an International Organization:

a) Director; b) Deputy Director; c) Member of the board of an international organization created by treaty, or a person occupying an equivalent position within it.

• For family members of a Politically Exposed Person who are assimilated:

a) spouse; b) any partner considered by national law as equivalent to a spouse; c) descendants and their spouses, any partner considered by national law as a spouse; d) ascendants; e) persons known to be closely associated with a politically exposed person;

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• virtual asset service provider: any natural or legal person not covered elsewhere in this Instruction who, for commercial activity, provides one or more of the following services, for themselves or on behalf of another natural or legal person:

1. virtual asset to fiat currency exchange service;
2. virtual asset to virtual asset exchange service;
3. virtual asset transfer service from one address to another or from one virtual asset account to another;
4. custody and/or administration of virtual assets or instruments enabling control of virtual assets;
   participation services and financial services related to an issuer and/or seller of a virtual asset;

• business relationship: an engagement of a professional or commercial nature that is presumed, at the time contact is established, to extend over a certain period. The business relationship may be provided for by a contract under which several successive operations will be carried out between the contracting parties or which creates continuous obligations on their part. A business relationship is also established when, in the absence of such a contract, a client regularly benefits from the intervention of a person subject to this Instruction for the execution of several or a continuous operation.

TITLE II: RISK ASSESSMENT

Article 6:

Covered entities