Update: consultation general guidelines Wwft and Sw 1977

On 3 February 2020 the consultation in relation to the new version of the General Guidelines Wwft and Sw 1977 (the General Guidelines) ended. In this newsletter we will discuss the background and purpose of the General Guidelines and several responses to the consultation.

Background and purpose of the General Guidelines

On 25 July 2018, the Fourth anti-money laundering Directive (Directive (EU) 2015/849) was implemented into Dutch legislation via the Dutch Act on the implementation of the Fourth anti-money laundering directive. As a result thereof, the Dutch Money Laundering and Terrorist Financing Prevention Act (Wet ter voorkoming van witwassen en financieren van terrorisme) (the Wwft) and underlying legislation have considerably been amended on some points. In addition, not only the (implemented) European Directives are important for the prevention of money laundering and terrorist financing, but also the international standards by the Financial Action Task Force (the FATF). The FATF is an international task force in which agreements have been made in relation to the prevention of money laundering and terrorist financing. For more information in relation to the Fourth anti-money laundering Directive, Fifth anti-money laundering Directive and Sixth anti-money laundering Directive, please see our previous newsletters. The General Guidelines replace its predecessor in order to – amongst others – incorporate the amendments to the Wwft and the (non-binding) guidelines of the FATF. The General Guidelines do not replace (existing) Dutch legislation and do not qualify as a legally binding document. The purpose of the General Guidelines is to provide guidelines for and further explanation in relation to the application of Dutch legislation in relation to the prevention of money laundering and terrorist financing.

Responses to the consultation

Several responses have been submitted in relation to the consultation, including:

• a request for a clearer explanation in relation to the cohesion between different guidelines (such as the General Guidelines and for example the guidelines in relation to the Wwft and Sw 1977 by the Dutch Central Bank), and, preferably, to decide on one specific general set of guidelines (such as the General Guidelines) which are to be complemented by more specific guidelines by different supervising authorities in relation to certain professions and/or institutions;
• a general request for a more detailed explanation and examples in relation to certain specific subjects such as the scope of the investigation duty (onderzoeksplicht), the intensity and frequency of the investigation and the monitoring of the client, which supporting documents are required when, the identification of ultimate beneficial owners (the UBOs) and reporting unusual transactions (ongebruikelijke transacties);
• a request to incorporate the motion Bruins, which discusses the status of directors of ANBIs (public benefit institutions, algemeen nut beogende instellingen) in the UBO-register, into the General Guidelines; and
• a request for a further explanation in relation to the appointment of a pseudo-UBO.

Whether and how the General Guidelines will be amended as a result of the responses to the consultation is currently unknown. Most likely, the General Guidelines will have to be amended again shortly due to – amongst others – the proposed amendment of the Wwft in relation to the Fifth anti-money laundering Directive. Please do not hesitate to contact our Banking & Finance team if you have any further questions in relation to the General Guidelines.