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The new APML stipulates a total of 11 executive
regulations, eight of which are obligatory and three are optional.
The Minister of Finance is responsible for issuing all executive
regulations except the act on the changing of Tolar amounts, which
is issued by the Government of the Republic of Slovenia. All eight
obligatory executive regulations pursuant to the new APML have already
entered into force. These are:
The three optional executive regulations stipulated
by the APML are:
- Act on the changing of Tolar amounts.
- Regulation on the omission of the identification of a client
during the execution of certain transactions, when the authorised
person is one of the organisations referred to in Article 2
of the APML.
- Regulation on the compulsory inclusion of individual indicators
on the list for the identification of suspicious transactions.
Brief summary of the contents of the eight executive
regulations currently in force
Directive
on the organisations, which do not have to be identified during
the execution of certain transactions
This Directive is intended, above all, to exculpate
certain liable subjects (organisations) in the area of the conducting
of identification. The Directive determines those organisations,
which are, themselves, also under obligation to implement the provisions
of the APML and which in certain cases (specific transactions) do
not have to be identified. In accordance with the seventh paragraph
of Article 3 of the European Council Directive No. 91/308/EEC, this
allows for the exculpation of the liable subjects regarding client
identification in all those cases of transactions or clients which
are not relevant to the prevention of money laundering and in cases
which could lead to unnecessary duplication in the gathering of
data on the same clients or transactions.
In comparison to the prior regulation the following
organizations are added to the list of organizations where identification
isn’t required in the execution of specific transactions: savings
and credit houses, companies for management of investment funds,
founders and managers of mutual pension funds. Furthermore branches
of foreign banks are no longer listed among the organizations where
identification isn’t required in the execution of specific transactions
on the grounds that there is a special executive regulation which
defines credit and financial institutions with head offices in European
Union Member States or in those countries which respect standards
in the area of the prevention and detection of money laundering.
This directive was issued and published in the Official Gazette
of the Republic of Slovenia, No. 94/02.
Directive
on the method of forwarding information to the Office for Money
Laundering Prevention of the Republic of Slovenia (together with
the forms, appendix and instructions on the manner of filling in
the forms which are a constitutive part of the Instructions)
This executive regulation is intended for prescribing
the methods of forwarding data in case of information which the
organisations referred to in Article 2 of the APML must forward
to the Office for Money Laundering Prevention (hereinafter referred
to as the Office) on the basis of the first and second paragraph
of Article 10 of the APML and in case of information whereby grounds
exist to suspect money laundering in connection with a transaction
or client (third paragraph of Article 10). A constitutive part of
the executive regulation are the forms and appendix to the forms
with which the organisations forward the statutory stipulated data
to the Office. It is also stated explicitly in the Directive, that
a constitutive part of this Executive Regulation are also the instructions
on the manner of filling in the forms, intended to help the organisations
when filling in the forms.
Directive
on the determination of the conditions under which the organisations
referred to in Article 2 of the Act on the Prevention of Money Laundering
shall not be obliged to forward information on cash transactions
executed by certain clients
The Directive is intended to exculpate certain
organisations regarding the forwarding of data to the Office as
well as to disburden the Office. This allows for the exclusion from
the system of forwarding information, all those transactions which
have no relevance to the prevention and detection of money laundering
(for example the forwarding of information on the daily revenue
of petrol stations or big trading enterprises).
This directive varies from the previous regulation
in Article 2 (point 4) as the list of organizations where clients
deposit day’s takings (banks, savings banks, organizations performing
payment transactions) is completed with savings and credit houses
where service is almost identical as in the above-mentioned organizations.
Directive
on authorised persons, the method of conducting internal control,
the safekeeping and protection of data, the keeping of records and
expert training of the staff in organisations, lawyers’ offices,
law firms, notaries public’s offices, audit companies, independent
auditors’ offices and legal or natural persons providing accountancy
services or tax advisory services
This executive regulation determines the minimum
standards for the implementation of internal control, for the determination
of the status and competences of the authorised person, for the
safekeeping and protection of data, the keeping of records and expert
training of the staff in organisations. Due to their special status
proceeding from the nature of their work which, under the APML,
makes them liable subjects, the Directive determines, standards
concerning the safekeeping and protection of data, the keeping of
records and expert training and the preparation of a list of indicators
for identifying suspicious transactions, for lawyers, law firms,
notaries public, audit companies, independent auditors offices and
legal or natural persons providing accountancy services or tax advisory
services. All the detailed rules transcending the minimum standards
are regulated by the organisations and the other liable subjects
mentioned above by their internal acts. The autonomy enjoyed by
the liable persons in this field, is established also in the majority
of the European countries, which have legislation concerning the
prevention and detection of money laundering. Most importantly,
this regulation is in compliance with the constitutional principle
of economic freedom, which in itself prohibits disproportionate
and excessive state interference in the internal operation, structure
and organisation of economic enterprises and other subjects participating
on the market. The regulation defines the implementation of internal
control in the organisations referred to in Article 2 of the Act,
determining in detail the purpose of conducting the control and
stating the tasks, which the internal control must cover (the implementation
of statutory obligations). In continuation, the provisions of the
regulation concern the preparation of the list of indicators for
identifying suspicious transactions, including a detailed specification
of whom the indicators for identifying suspicious transactions are
meant for, who participates in their preparation, and which principles
need to be taken into consideration during their preparation. A
very important set of the provisions regulates the status, duties
and competencies of the authorised person and one or more deputy-authorised
persons in relation, both to the Office for Money Laundering Prevention
and to the organisation in which they are employed. The method of
the safekeeping of data, the keeping of records and protection of
confidential information is, normally, a subject of the internal
acts of the organisations and the other liable subjects. It is provided
that data must be kept in chronological order and in a way that
enables access throughout the period of their safekeeping, as stipulated
by law. A novelty is introduced in Article 19, which requires liable
subjects to keep separate records on the access of data classified
under the provisions of the APML as confidential, and to send written
notification to the Office within three days, about the inspection
of the data by control authorities. The provisions governing expert
training are general and summarise the obligations stipulated by
the APML while determining in more detail, the timetables for the
preparation of the programmes and contents of expert training and
education. On the basis of this Directive, organisations and the
other liable subjects must harmonise their internal acts within
90 days of the entering into force of this Directive.
Directive
on the method of forwarding data by lawyers, law firms, notaries
public’s offices, audit companies, independent auditors and legal
or natural persons providing accountancy services or tax advisory
services, to the Office for Money Laundering Prevention of the Republic
of Slovenia
This executive regulation binds lawyers, law firms,
notaries public’s offices, audit companies, independent auditors
and legal or natural persons providing accountancy services or tax
advisory services, and is intended for determining the method and
form of forwarding data to the Office, on transactions and persons
in connection with whom grounds exist to suspect money laundering,
on the basis of Article 28 of the APML. This executive regulation
constitutes also of a form, an appendix to the form and instructions
on the manner of filling in the form intended to help the liable
subjects mentioned above when filling in the forms.
Directive
on credit or financial institutions with headquarters in the European
Union or in those countries which, according to information from
international organisations or other competent international subjects,
respect international standards concerning the prevention and detection
of money laundering and do not have to be identified in the execution
of certain transactions
In the preparation of the directive which determines
the credit or financial institutions with headquarters in the European
Union or in those countries which, according to information from
international organisations or other competent international subjects,
respect international standards concerning the prevention and detection
of money laundering, consideration was given to the provisions of
Directive 2000/12/EC. The Directive relates only to those credit
and financial institutions seated in European Union Member States
for which it is guaranteed that they are appropriately controlled
by the competent control bodies within the individual member state
and which are obliged to comply with the regulations concerning
the prevention of money laundering.
Directive
on the determination of the list of countries which do not respect
the standards concerning the prevention and detection of money laundering
(Official Gazette of the Republic of Slovenia, No. 72/05)
This executive regulation is directly linked to
the third paragraph of Article 9.a of the APML, which determines
that with reference to the client, who is a non-resident, the identification
on the basis of the first paragraph of Article 9.a (“non face to
face” identification) may be performed only when the client is a
Slovene citizen or a resident of a country which pays regard to
standards in the area of prevention and detection of money laundering.
Therefore this directive determines those countries which residents
cannot open an account or establish a permanent business relationship
in the Republic of Slovenia with out being present in person.
In drawing up the list of countries which do not
respect the standards concerning the prevention of money laundering,
the judgement and findings of three important international organisations
were taken into consideration in the field of the prevention and
detection of money laundering (Select Committee of Experts on the
Evaluation of Anti-Money Laundering Measures - MONEYVAL, the EGMONT
group and Financial Action Task Force - FATF). Taken into consideration
too, were the findings of the Office for Money Laundering Prevention
of the Republic of Slovenia. The list of the countries included
in this Directive is based on one of the following criteria:
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the country has not introduced or prepared
legislation concerning the prevention of money laundering or
the legislation is inadequate and, as such, cannot comply with
the standards in the field of prevention of money laundering,
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the country is not a member of the international
EGMONT group as it has not established an office for the detection
and prevention of money laundering or such office doesn’t have
effective mechanisms for performing tasks in the field of detection
and prevention of money laundering,
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the country is listed among non-cooperating
states of the FATF organisation,
-
the procedure has been applied to the country
at the Select Committee of Experts on the Evaluation of Anti-Money
Laundering Measures – MONEYVAL for not complying with international
standards in the field of detection and prevention of money
laundering.
Off shore areas are not specially excluded from
this Directive since they are already excluded on the basis of the
provisions of the APML.
Directive
on the identification of a client on opening an account or establishing
a permanent business relation without the presence of the client
The possibility of the introduction in national
legislations of “non face to face” identification was first provided
for by the European Commission Directive No. 2001/97/EC, which was
taken into account in the preparation of this Directive.
Individual countries regulate the field of opening
accounts from a long distance in various ways, but certainly as
an exception. Basically in most European Union Member States, direct
contact with the client still remains the fundamental rule in the
opening of an account and establishing of a business relation. The
APML determines in Article 9.a, the general conditions for opening
accounts and concluding business relations from a distance. This
Directive determines those “persons of trust” who may, instead of
the organisations referred to in Article 2 of the APML, perform
the identification and only under certain conditions. Identification
may, thus, be performed solely by diplomatic-consular representatives,
notaries public, a banker’s correspondent of a bank seated in the
Republic of Slovenia and the branch of a domestic bank abroad.
The Directive distinguishes between non-residents
and residents. The residents, who are state bodies, organisations
with public authorisations or other organisations referred to in
Article 2 of the APML, may be identified solely by a notary public
seated in the Republic of Slovenia.
The Directive also prescribes the method of obtaining
the prescribed data from the broker and the possibility for the
organisation to use, in addition to the methods described hereof,
also other methods for the verification or acquisition of data on
a client.
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