Auxiliary sheriff

If cash is no longer true? (part 3) the new bafin aua BT credit institutions

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Part 3: no proof of origin = dismissal?

In complying with the money laundering act, the key factor for obligated companies is the opinion of the relevant supervisory authority on the various obligations. The view of the authorities will be in sog. Interpretation and application notes (aua for short) summarized. Even if they are only called "hints", these explanations are considered as de facto binding for the practice.

The fact that the interpretation and application notes are abbreviated with "aua" for a reason is currently being painfully experienced again by the financial sector. The current source of this "suffering" is bafin's "auslegungs- und anwendungshinweise besonderer teil: kreditinstitute" (aua BT fur kreditinstitute), published on 08. June 2021 were published.

In particular, the new requirements for determining the origin of assets in cash transactions (see no. 1 of bafin aua BT for credit institutions) are proving to be a "tough nut to crack" when it comes to implementation (deadline for implementation: 08. August 2021!). Accordingly, cash transactions above a certain amount are considered particularly risky. In these cases, information on the origin of the assets and on the beneficial owner, if any, must be obtained before the transaction is executed. For cash transactions by occasional customers, this is the case if the equivalent value is more than 2.500 euros the case, for existing customers at more than 10.000 euro.

The origin of the assets must be verified by the submission of a "meaningful document" (so-called. Proof of origin) to be plausible. This clarification must be made before the transaction is executed.

Rejection resp. Termination in the absence of proof?

For banks and savings banks, the question arises as to how to proceed in cases of missing or delayed certificates of origin. If cash transactions of occasional customers (=outside of a business relationship) are involved, bafin is of the opinion that the acceptance of cash must be refused here.

If the proof is missing for cash deposits from existing customers (=within a business relationship), this cannot be assessed so clearly. At least bafin does not comment on this issue.

Compulsory termination in the event of non-fulfillment

The (contractual) obligation of banks to accept cash payments, at least in the case of payment accounts and accounts managed on the credit side, argues against the obligation to give notice of termination. The problem is that bafin considers the measures to clarify the origin of cash transactions as increased due diligence obligations pursuant to. § 15 abs. 4 no. 2 gwg classifies. If the credit institution is not in a position to meet the increased due diligence requirements, the so-called "money laundering" rule applies. "Termination obligation" of § 15 para. 9 gwg i. V. M. § 10 abs. 9 AMLA. The business relationship must then be terminated, i.E. The account agreement must be cancelled.

The bank would therefore have to take action at the latest if the customer does not provide proof of origin after a reasonable period of time has elapsed. The same applies if the origin cannot be conclusively shown (lack of plausibility). At the same time, decide whether an additional SAR must be filed based on the facts of the case.

Conclusion

Due to the threat of termination, it is particularly important to inform your own customers of the serious consequences. The proof of origin should therefore always be submitted immediately or at the earliest opportunity. Be submitted in a timely manner. In a branch staffed with employees, this can still be communicated directly to the customer. In the case of cash deposits at self-service machines (see part 2: dealing with deposits at machines), this is much more difficult to implement.

In this context, it is interesting to note that bafin only stipulates the rejection of the transaction for occasional customers here ("if no corresponding proof pursuant to section 1.3 can be obtained, the
to refuse acceptance of the cash"). Only in this case it repeats the consequence specified in the law. For existing customers, there is no statement referring to this. Is bafin therefore perhaps of the opinion that in these cases a termination of the account is not mandatory to? Is this a case of deliberately keeping the legal consequences open?? However, relying on such a presumption would be risky. Finally, the aua are also only "hints". The law always has the last word, in this case the "termination obligation" of § 15 para. 9 AMLA i. V. M. § 10 para. 9 MLA.

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