LESSON 4: OBLIGATIONS ACCORDING TO THE LEVEL OF ACTIVITY
Law 10/2010 establish in its article 2 a list of activity sector, called obliged subjects, to which a series of mandatory measures are applied.
In particular, the obliged subjects must:
- Adopt internal measures such as the approval of internal policies and procedures.
- Create control bodies such as the Internal Control Unit (hereinafter ICU), the representative to SEPBLAC and a technical control and analysis unit.
INTERNAL CONTROL MEASURES
Article 31 of Royal Decree 304/2014, of May 5, (hereinafter, the Royal Decree) establishes the obligation of a written approval and apply adequate AML/TF policies and procedures. Specifically, they must:
- Prepare a self-assessment report on money laundering and terrorism financing risks, based on the business activity.
- Develop an AML/CTF Manual.
- Appoint the ICU and representative to SEPBLAC.
- Carry out an annual external expert review.
- Give a training to all the members of the organization (managers, employees and/or agents).
However, brokers and subjects included in letters i) to u) of article 2.1 of Law 10/2010 are excluded from these obligations (among others, real estate developers, notaries, auditors, lawyers, or casinos) when they comply with the following terms:
- Have less than 10 employees (including agents).
- The annual business volume or the annual balance does not exceed 2 million euros.
APPOINTMENT OF CONTROL BODIES
Together with the previous exceptions, the Royal Decree establishes in article 35 that the constitution of an ICU is not mandatory when:
The activity of the obliged subject is included in article 2.1 section i) and following or, in the case of trade brokers.
- The obliged subject employs less than 50 people, including agents.
- The annual turnover or the annual balance does not exceed 10 million euros.
- In this case, it will be the representative to the Executive Service of the Commission who assumes these functions.
TECHNICAL UNIT
Section 3 of article 35 of the Royal Decree establishes the obligation to have a technical unit for the treatment and analysis of the information, with specialized staff in exclusive dedication and with adequate training, when the annual turnover exceeds 50 million euros, or the annual balance exceeds 43 million euros.
IMPORTANT:
Although these exceptions exist for certain companies, it does not imply that the diligence measures that we will study in future lessons should not be applied.
