Spain
Last Updated: 23/5/2008CENTRAL AUTHORITY FOR REPORTING
Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences (Servicio Ejecutivo de la Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias) (SEPBLAC).
The Spanish Ministry of the Economy has urged the country's notarial professional body to set up a unit to coordinate its members' efforts to detect money laundering.
HAS THE THIRD EU MONEY LAUNDERING DIRECTIVE BEEN IMPLEMENTED?
The implementation of the Third Directive is still pending in Spain. The Spanish Government has drafted a document entitled “technical basis,” which is awaiting approval from the Ministry of Finance. Once the “technical basis” document is approved, a “political decision” must be made in order to draw up a draft bill to be sent to the Spanish Parliament for approval as law.
There are several factors that may further delay implementation of the Third Directive.
First, the “political decision” has been postponed due to the complexity of reaching an agreement between the different agencies. Second, Parliament and Government are not yet constituted due to the recent presidential elections.
According to an European Union press release of 5 June 2008 (Ref: IP/08/860), the European Commission (EC) is pursuing infringement actions against 15 member states for failing to adopt and implement the Third EU Money Laundering Directive into national law by the deadline of 15 December 2007. Formal requests will be sent to Belgium, Czech Republic, Germany, Greece, Spain, Finland, France, Ireland, Luxembourg, Malta, the Netherlands, Poland, Portugal, Sweden and Slovakia. The infringing nations will have two months to provide an acceptable response, or the EC may refer the issue to the European Court of Justice.
LAWS REGARDING ANTI-MONEY LAUNDERING PROCEDURES
The following are the main Spanish anti-money laundering laws:
- Law 19/1993 of 28 December, on specific measures to prevent money laundering. (In Spanish)
- Royal Decree 925/1995 of 9 June, which approves the Regulation of Law 19/1993 of 28 December on specific measures to prevent money laundering(In Spanish)
- Law 19/2003, of 4 July, concerning the legal regime applicable to capital movement and foreign economic transactions and specific money laundering measures (In Spanish)
- Royal Decree 54/2005, of 21 January, which amends Regulation of Law 19/1993 of 28 December, on specific measures to prevent money laundering, as approved by RD 925/1995, of 9 June, and other rules for the regulation of the banking, financial and insurance systems. (In Spanish)
"In February 2007 new rules on due diligence for anti-money laundering in money service businesses in Spain came into effect." 1
GUIDELINES
No information available.
UNDER WHAT CIRCUMSTANCES IS A LAWYER UNDER THE OBLIGATION TO REPORT?
Article 3.4(a) Law 19/1993 (as amended by Law 19/2003) requires lawyers to report directly to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences any fact or activity that may arise suspicion or certainty of money laundering.
According to Article 2.2(d) Law 19/1993 (as amended by Law 19/2003), lawyers are subject to the obligations imposed by this Law when:
They participate in the initiation, execution or assessment of transactions for their clients concerning the:
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Buying and selling of real property or business entities;
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Managing of client money, securities or other client assets;
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Opening or management of bank, savings or securities accounts;
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Organization of contributions necessary for the creation, operation or management of companies;
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Creation, operation or management of trusts, companies or similar structures;
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They act on behalf of and for their client in any financial or real estate transaction.
This article should be read in conjunction with the last paragraph of Article 3.4 Law 19/1993 (as amended by Law 19/2003), which states that the obligations laid down by paragraph 4 of Article 3 (i.e. reporting to the Executive Service) shall not apply to auditors, external accountants, tax advisors, notaries, lawyers and “procuradores” with regard to information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings.
IS TIPPING OFF PERMITTED?
Tipping off is expressly forbidden by Article 3.6 Law 19/1993 (as amended by Law 19/2003), which states that the persons, institutions or corporations obliged by Law “shall not disclose to the costumer concerned nor to other third persons that information has been transmitted to the Executive Service or that a money laundering investigations is to be carried out”.
LAWYER RESPONSIBILITY
Lawyers are under an obligation to establish the identity of their clients. All the documents regarding the identity and the transaction have to be filed and kept by the lawyers for at least five years after the relations with the client have been severed.
Lawyers are required to report directly to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences any fact or operation that may arise suspicion or certainty of money laundering..
Where the Executive Service requests, it shall be furnished with any additional information concerning the report as needed.
DOCUMENTS TO BE COLLECTED
Lawyers will have to identify their new clients and the beneficial owners when entering into the activities as described in article 1.2 of the Second EU Directive.
Individuals: national ID (Documento Nacional de Identidad, DNI), residence permit expended by the Home Office, passport and/or any foreign official ID with photography.
Corporate bodies: A document showing the name, form, domicile and object of the corporation.
RESTRICTIONS TO ACT
There is a duty to refrain from conducting any transaction that is suspected to involve money laundering or attempted money laundering.
Where this duty cannot be adhered to without serving to assist those involved in money laundering to evade the legal consequences of such activity, the institution is entitled to conduct the transaction, reporting it afterwards.
EXISTING CLIENTS AFFECTED
No information available.
NEW MATTERS
No information available.
NEW CLIENTS
Lawyers shall require the identification of their new clients and, if any, the persons on behalf of which these clients are acting, by the presentation of a proper identification while they first start the relationship.
Where there is a doubt on whether the client is acting for its own account or not, the lawyer shall take reasonable actions to obtain information on the actual identity of the persons on behalf of whom the clients are acting.
Some exceptions are established by new Article 4 of the Regulation. (e.g. it is not compulsory to identify new clients if the amount of the transactions do not exceed 3000 €)
LAWYERS PROSECUTED FOR MONEY LAUNDERING SITUATIONS
"An investigating magistrate in Marbella fixed a bail figure of €100m for six lawyers who stand accused of laundering the proceeds of a large-scale corruption scandal involving local authorities in Andalucía." 2
Sources
Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences (Servicio Ejecutivo de la Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias) (SEPBLAC).
- Helen O'Gorman, “Spain revises rules for money services businesses”, Feb 14 2007, www.complinet.com.
- Helen O'Gorman, “Spanish judge orders €600m bail for lawyers in corruption case”, 22 January 2007, www.complinet.com.
