AML Prevention and Combating of Money Laundering and Terrorism Financing in the Republic of Moldova

A. National Legislation 

general presentation 

– Law on Prevention and Combating of Money Laundering and Terrorism Financing, No. 308/2017 (the AML Law), that transposed into national law some provisions of EU Directive 2015/849 (also known as the “Fourth Anti-Money Laundering Directive” – ​​”AML”) and the Recommendations of the International Financial Action Task Force on Anti-Money Laundering (FATF).

– Law No. 75/2020, Published: 12-06-2020 in the Official Journal No. 142-146 art. 260, on the Procedure for Establishing Violations of Prevention of Money Laundering and Terrorist Financing and Imposition of Sanctions (Law No. 75/2020).

The law establishes a mechanism for the implementation of the provisions of art. 35 para. (2) lit. e) of the Law no. 308 of 22.12.2017, on preventing and combating money laundering and terrorist financing, contains the list of applicable pecuniary and non-pecuniary sanctions, their individualization, regulates the verification of compliance of reporting entities, distinguishes the supervisory bodies from those with a supervisory function competent to apply sanctions for violations of the legislation on preventing and combating money laundering.

OPFML/ FIU– The Office for Prevention and Combating of Money Laundering (Financial Intelligence Unit) is the national center for collection, analysis and dissemination of financial data and it is also an important synapse between the financial sector, specialized professional services on the one hand, and law enforcement system on the other hand.

OPFML/ FIU is the national monitoring authority, coordinating AML national policies, collecting and processing reports on suspicious transactions and immediate intervention to prevent money laundering and terrorist financing.

The mission of the Office for Preventing and Combating of Money Laundering it is extremely important in reducing the vulnerability of banking and non-banking sectors to the risk exposure of money laundering and terrorism financing but also the implementation of FATF and MONEYVAL (Committee of Experts for the Evaluation of Anti-Money Laundering and Terrorist Financing Measures, which is an associate member of the FATF), standards and recommendations, in building a viable system for preventing and combating money laundering and terrorist financing.

To comply with the new rules, each reporting entity must develop and apply internal regulations. Moreover, to implement the provisions of the legislation, the OPFML/ FIU of Moldova adopted on December 11, 2020 Regulation on control procedures of reporting entities, individualization and imposition of sanctions for violations of AML / TF laws (OPFML/ FIU Order No. 50/2020).

Obligations of the Reporting entities:

  • approval of its programs to prevent and combat money laundering and terrorist financing, including the implementation of a continuous training program for employees and, as appropriate, the appointment of a person invested with responsibilities in the field of AML;
  • implementation of precautions in customer relations (“know your client”): identification and verification of customers’ identities, their actual beneficiaries and, where appropriate, politically exposed persons, understanding the purpose and desired nature of the business relationship, continuous monitoring of business relationship;
  • reporting activities or transactions that fall under the law (for example, suspicious money laundering transactions).

B. Supervisory bodies entitled to apply sanctions:

– National Bank of Moldova for banks, foreign exchange units and payment companies, electronic money issuing companies and postal service providers;

– National Commission of the Financial Market for registry companies, investment companies, Single Central Depository, market operators, system operators, insurers (reinsurers), insurance intermediaries and/or reinsurance-legal entities, National Bureau of Motor Insurers, non-governmental pension funds, non-bank lending organizations, savings and loan associations, central savings and loan associations;

–  The Office for the Prevention and Combating of Money Laundering (OPFML/ FIU) for gambling organizers, real estate agents, natural and legal persons engaged in activities with precious metals and precious stones, lawyers, notaries and other freelancers, under certain conditions, landlords. legal persons engaged in entrepreneurial activity, postal service providers, audit entities, legal persons and individual undertakings providing accounting services.

C. Supervisory bodies

Not entitled to apply sanctions supervisory bodies should inform the OPFML/ FIU on the facts detected during the controls, which could be related to the violation of the provisions of the legislation on preventing and combating money laundering and terrorist financing:

  • Bar Association; 
  • Notary Chamber; 
  • State Chamber for Marking Supervision; 
  • The Ministry of Finance.

D. Reporting entities:

  • Banks;
  • Non-banking credit organizations;
  • Currency exchange units;
  • Real estate agents;
  • Registry companies, the Single Central Depository, the National Insurers’ Bureau, stock exchanges, dealers and brokers, insurance companies, investment funds, gambling organizers, dealers of precious metals and stones, 
  • Notaries, attorneys at law and other self-employed professionals (when acting on behalf of clients in connection with any financial and real estate transaction, the opening and management of bank accounts, incorporation and running of legal entities, management, purchase or sale of assets under fiduciary administration), 
  • The lessees – legal entities practicing entrepreneurial activity, payment companies, electronic money issuers and postal services providers, auditors and other legal entities or entrepreneurs providing accounting services, 
  • Other persons selling assets worth at least 200,000 Moldovan lei (about 10,000 euros) or its equivalent only if the payments are made in cash.

E. Legal requirements for KYC(„know your client”)

Reporting entities are required to apply extensive know-your-customer procedures. 

Upon inception of the business relationship, the reporting entity must identify the customer/the beneficiary owner, and along the way shall monitor the transactions carried out under a risk-based approach. 

The information about the identity of the customer and the beneficiary owner should be updated. Identification of an individual is done based on the date and place of birth (ID, passport, etc.,) and on other factual data related to family life, domicile, residence, place of work, contacts with different business people, including physical appearance.

 The identification of the legal entities involves also several issues, as the foundation and registration date, associates/shareholders/directors, representatives, basic and secondary activities. 

In cases where the customer is represented based on a power of attorney, the reporting entity shall take appropriate measures to verify the identity and nature of the effective beneficiary for whom the banking account shall be opened or the transaction shall be performed. 

If the identification of customer fails when applying the know-your-customer requirements, the entity should refuse to start the business relationship with the customer; shall no longer carry out the transactions ordered by the customer and shall immediately terminate any relationship with the client and report the suspicion to the Moldovan authorities.

 Reporting entities should apply additional measures in specific cases, which include non-face-to-face operations, transactions of the politically exposed persons, cross-border interbank transfers or electronic transfers when the parties cannot be fully identified.

F. Reporting obligations

Recordkeeping 

Under the AML Law, the reporting entities should keep, on paper, all data related to national and international activities and transactions of the client, for a minimum of 5 years after the business contract has ended (or after the termination of the occasional transaction) and up to 5 years – on electronic support. At the request of the OPFML/ FIU, the term can be extended. 

The kept data shall be sufficient to restore every activity or transaction. The reporting entities shall keep all data about the Clients and ultimate beneficiaries, including copies of identification documents, the information regarding accounts and the primary documentation, the business correspondence, results of due diligence on the identification of complex and unusual transactions. Data on suspicious activities or transactions are indicated in a special form, which is sent to the OPFML/ FIU, within 24 hours of receipt.

 The reporting entities shall report to the OPFML/ FIU about the suspicious assets, activities and transactions of money laundering, about the crimes associated to them or terrorism financing, no matter the phase of the crime (preparation, attempt, in progress or completed). 

Transactions which amount exceed 200,000 Moldovan lei (approximately 10,000 euros), performed in cash, in one or several operations, should be reported to the Moldovan OPFML/ FIU within 10 calendar days. Also, transactions which amount exceed 500,000 Moldovan lei (approximately 25,000 euros), by transfer, in one or several operations shall be reported to the Moldovan OPFML/ FIU by the fifteenth day of the following month. 

Any transaction which is deemed a suspicious transaction, irrespective of the amount of the transaction, should be reported within 24 hours.

Under the AML Law, the reporting entities, their employees, the responsible persons and their representatives are bound not to inform the clients or the third parties of their report that a report has been made to the monitoring authority until the legal terms of recordkeeping have expired.


G. Subjects who may be subject to the sanction: 

  • the reporting entity; 
  • the person with a senior management position;
  • the employee of the reporting entity declared responsible for the breach.

H. Sanctionable violations:

  • failure to impose precautionary and other measures in cross-border banking relations; 
  • violation of the prohibition of opening anonymous accounts;
  • failure to comply with the information requirements upon fund transfers; 
  • failure to identify the politically exposed persons, their family members and the persons associated with PEPs, failure to impose the procedures according to the risk generated by PEPs, their family members and the persons associated with PEPs; 
  • establishing or continuing business relations with PEPs, their family members and the persons associated with PEPs without obtaining the approval of the senior management; 
  • failure to identify the source of the assets; failure to appoint the internal AML/TF officer;
  • lack of evidence of information and documents; 
  • lack of record of all transactions; 
  • failure to inform timely OPFML/ FIU on suspicious activities or transactions, on cash activities or transactions, on wire activities or transactions; 
  • failure to comply with the requirements for completing special forms; 
  • failure to comply timely with the requirements for completing the compliance form; violation of confidentiality obligations; 
  • failure to present information; 
  • failure to approve policies, internal controls and procedures; 
  • execution of the activity or transaction contrary to the OPFML/ FIU decisions; 
  • failure to take actions on risk identification and assessment; failure to comply with the obligation to immediately impose restrictive measures; 
  • failure to inform OPFML/ FIU on imposition of restrictive measures; 
  • failure to enforce the decisions/prescriptions of the supervisory authorities.

J. Sanctions

for violating the provisions of the legislation on preventing and combating money laundering and terrorist financing:

  • public statement in the media, identifying the natural or legal person and the nature of the breach;
  • prescription, which orders the cessation of the illicit behavior and the abstention from repetition;
  • suspension of the activity, suspension or withdrawal of the authorization, of the activity license for a period of three months to one year;
  • a temporary ban on the exercise of management functions in the reporting entities by any senior management person, person in charge or by any other natural person declared responsible for the breach, for a period of three months to one year;
  • fine up to the MDL equivalent of the amount of 5 million euros.

The term of liability under Law 75/2020 is five years from the time of the violation.

K. Mitigating circumstances – lead to a reduction of sanction:

  • effective collaboration with the authorities in the controls;
  • express recognition of the act committed until the issuance of the decision;
  • cessation of the violation and implementation of remedial actions of the will subject to the sanction.

L. Aggravating circumstances – lead to increased penalties:

  • previous infringements of AML legislation;
  • non-cessation of the violation and non-implementation of remedial measures of the reporting entity’s own will;
  • the significant nature of the damage.

Recommendations:

The reporting entities shall adopt internal policies and adequate methods of working with clients, data storage, internal control, evaluation and management of risks, management of conformity and communication to impede the activities and transactions related to money laundering or terrorism financing. 

The reporting entities shall appoint the persons responsible for enforcement of the legal provisions, the names and responsibilities of which shall be reported to OPFML/ FIU. 

The reporting entities shall approve their own programs of AML/TF prevention and combating

The program will include:

  • policies, methods, procedures, strict rules and internal control actions, directed towards prevention of money laundering and terrorism financing;
  • measures related to KYC rules;
  • identification of complex and unordinary transactions;
  • reporting, evaluation procedures and risk management;
  • measures to promote ethical and professional norms in the supervised sector, and to prevent the use of the reporting entity, intentionally or not, by organized criminal groups or their associates;
  • a program of continuous training of employees and selection of personnel; and
  • audit to ensure the control of the internal system.

However, the legislation has some gaps in regard to politically exposed persons, the application of improved due diligence measures (“know your client”), preventive measures and other measures for designated businesses and non-financial professions and the information of the ultimate beneficial owner. (UBO)

Sources:

  1. Information note on the draft Law on the procedure for detecting violations in the field of prevention of money laundering and terrorist financing and the application of sanctions: http://www.justice.gov.md/public/files/dir_elab_acte_norm/Nota_informativa_Sanctiuni.pdf
  2. EU Directive 2015/849: https://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:32015L0849&from=EN.
  3. Annual activity report of the Money Laundering Prevention and Combating Service for 2019: http://spcsb.cna.md/ro/reports
  4. MONEYVAL Mutual Evaluation Report, Moldova, 2019: https://rm.coe.int/moneyval-2019-6-5th-round-mer-repmoldova/168097a396