LESSON 1: NORMATIVE REGULATION ON AML /CTF
CRIMINAL CODE
Money laundering is sanctioned as a criminal offense in article 301 of the Criminal Code. This article establish that will be punished as the author of a crime of money laundering “Whoever acquires, possesses, uses, converts, or transmits goods, knowing they originated from a criminal activity, committed by himself or by any third party, or who perpetrates any other act to hide or conceal their unlawful origin, or to aid the person who participated in the felony or felonies to avoid the legal consequences of his acts ”.
Likewise, the behaviour described may be classified as serious recklessness if the responsible person ignores the duty of care that is enforceable by indirectly favouring the perpetrator of the crime. For example, a sales commercial knows that the person interested in buying a property it is going to pay the operation with funds that come from an illicit activity and still allows him to continue with it by evading the internal control mechanisms of your company.
It should be noted that the company itself may be criminally liable for the crime of money laundering, in accordance with article 31.bis of the Criminal Code.
ADMINISTRATIVE LAW
In Spain, in addition to sanctioning money laundering as a crime, Law 10/2010, of April 28th, on the prevention of money laundering and the financing of terrorism aims to “the protection of the integrity of the financial system and other sectors of economic activity by establishing obligations to prevent money laundering and terrorism financing” to certain sectors.
Spanish legislation finds its origins in the international standards promoted by the United Nations (UN) and the Financial Action Task Force (FATF). In 1990, the FATF published 40 Recommendations, in order to establish a scheme of measures that countries could implement to fight money laundering and terrorism financing. These recommendations have been reviewed several times. It was last updated in June 2019.
In 2005, the European Union promulgated Directive 2005/60/EC based on the 40 FATF recommendations. This was adopted in Spain in 2010, giving rise to the Law 10/2010, which unified the existing regulations regarding AML/CTF in Spain.
In 2014, Royal Decree 304/2014, of May 5th, was enacted, approving the regulations of Law 10/2010, of April 28th, on the prevention of money laundering and terrorism financing. The Royal Decree includes the modifications of the international regulations arising from the new recommendations promulgated by the FATF in 2012.
On June 5th, 2015, Directive 2015/849 was published in the Official Journal of the European Union (DOUE), which was transposed into national law through Royal Decree law 11/2018 of August 31st.
Finally, in 2018 the European Union approved Directive 2018/843, of May 30, regulating new aspects in the matter. The Directive was transposed into national law through Royal Decree law 7/2021 of April 27th.
REMEMBER:
The main regulation regarding AML/CTF is as it follows:
– Law 10/2010, of April 28, on the prevention of money laundering and terrorism financing.
– Royal Decree 304/2014, of May 5, approving the Regulation of Law 10/2010, of April 28, on the prevention of money laundering and terrorism financing.
– Directive (EU) 2015/849 on the prevention of the use of the financial system for money laundering or terrorism financing (updated with its various modifications).
In the following links we can find the complete regulations:
