Article 9a
Special tasks related to preventing and countering money laundering and terrorist financing
1.
The Authority shall, within its respective competences, take a leading, coordinating and monitoring role in promoting integrity, transparency and security in the financial system by means of adopting measures to prevent and counter money laundering and terrorist financing in that system. In line with the principle of proportionality, those measures shall not exceed what is necessary to achieve the objectives of this Regulation and of the legislative acts referred to in Article 1(2) and shall have due regard to the nature, scale and complexity of risks, business practices, business models and size of financial sector operators and of markets. Those measures shall include:
(a)
collecting information from competent authorities relating to weaknesses identified during ongoing supervision and authorisation procedures in the processes and procedures, governance arrangements, fitness and propriety, acquisition of qualifying holdings, business models and activities of financial sector operators in relation to preventing and countering money laundering and terrorist financing as well as measures taken by competent authorities, in response to the following material weaknesses affecting one or more requirements of the legislative acts referred to in Article 1(2) of this Regulation, Article 1(2) of Regulation (EU) No 1094/2010 and Article 1(2) of Regulation (EU) No 1095/2010 and of any national laws transposing them, respectively, with regard to the prevention and countering the use of the financial system for the purpose of money laundering or of terrorist financing:
(i)
a breach or a potential breach by a financial sector operator of such requirements,
(ii)
the inappropriate or ineffective application by a financial sector operator of such requirements, or
(iii)
the inappropriate or ineffective application by a financial sector operator of its internal policies and procedures to comply with such requirements.
Competent authorities shall provide all such information to the Authority in addition to any obligations under Article 35 of this Regulation and shall keep the Authority informed in due time about any subsequent developments relating to the information provided. The Authority shall coordinate closely with EU Financial Intelligence Units (FIUs) as referred to in Directive (EU) 2015/849, while respecting their status and obligations and without any unnecessary duplication.
Competent authorities may share, in accordance with national law, any additional information that they deem relevant to the prevention and countering of the use of the financial system for the purpose of money laundering or terrorist financing with the central database referred to in paragraph 2;
(b)
coordinating closely, and, where appropriate, exchanging information, with competent authorities, including the European Central Bank with regard to matters relating to the tasks conferred on it by Regulation (EU) No 1024/2013, and with authorities entrusted with the public duty of supervising obliged entities listed in points (1) and (2) of Article 2(1) of Directive (EU) 2015/849 as well as with FIUs, while respecting the status and obligations of the FIUs under Directive (EU) 2015/849;
(c)
developing common guidance and standards for preventing and countering money laundering and terrorist financing in the financial sector and promoting their consistent implementation in particular by developing draft regulatory and implementing technical standards, in line with the mandates laid down in the legislative acts referred to in Article 1(2), guidelines, recommendations, and other measures, including opinions which shall be based on the legislative acts referred to in Article 1(2);
(d)
providing assistance to competent authorities, following their specific requests;
(e)
monitoring market developments and assessing vulnerabilities and risks in relation to money laundering and terrorist financing in the financial sector.
By 31 December 2020, the Authority shall develop draft regulatory technical standards specifying the definition of weaknesses as referred to in point (a) of the first subparagraph, including the corresponding situations where weaknesses may occur, the materiality of weaknesses and the practical implementation of the information collection by the Authority as well as the type of information that should be provided pursuant to point (a) of the first subparagraph. In developing those technical standards, the Authority shall consider the volume of the information to be provided and the need to avoid duplication. It shall also set out arrangements to ensure effectiveness and confidentiality.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the second subparagraph of this paragraph in accordance with Articles 10 to 14.
2.
The Authority shall establish and keep up to date a central database of information collected pursuant to point (a) of paragraph 1. The Authority shall ensure that that information is analysed and made available to competent authorities on a need-to-know and confidential basis. The Authority may, where appropriate, transmit evidence that is in its possession which could give rise to criminal proceedings to the national judicial authorities and the competent authorities of the Member State concerned in accordance with national procedural rules. The Authority may also, where appropriate, transmit evidence to the European Public Prosecutor’s Office where such evidence concerns offences in respect of which the European Public Prosecutor’s Office exercises or could exercise competence in accordance with Council Regulation (EU) 2017/1939 (
24
).
3.
Competent authorities may address to the Authority reasoned requests for information about financial sector operators relevant for their supervisory activities with regard to the prevention of the use of the financial system for the purpose of money laundering or of terrorist financing. The Authority shall assess those requests and provide the information requested by competent authorities on a need-to-know basis and in a timely manner. Where the Authority does not provide the requested information, it shall inform the requesting competent authority and give an explanation as to why the information is not provided. The Authority shall inform the competent authority, or any other authority or institution that has initially provided the requested information, of the identity of the requesting competent authority, the identity of the financial sector operator concerned, the reason for the information request as well as whether the information has been shared. In addition, the Authority shall analyse the information in order to share relevant information on its own initiative with competent authorities for their supervisory activities with regard to the prevention of the use of the financial system for the purpose of money laundering or terrorist financing. Where it does so share, it shall notify the competent authority that initially provided the information. It shall also conduct analysis on an aggregate basis for the opinion it is requested to deliver pursuant to Article 6(5) of Directive (EU) 2015/849.
By 31 December 2020, the Authority shall develop draft regulatory technical standards specifying how information is to be analysed and made available to competent authorities on a need-to-know and confidential basis.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the second subparagraph of this paragraph in accordance with Articles 10 to 14.
4.
The Authority shall promote convergence of supervisory processes referred to in Directive (EU) 2015/849, including by conducting peer reviews, and issuing related reports and follow-up measures in accordance with Article 30 of this Regulation. The Authority, when conducting such reviews in accordance with Article 30 of this Regulation, shall take into account relevant evaluations, assessments or reports drawn up by international organisations and intergovernmental bodies competent in the field of preventing money laundering or terrorist financing as well as the biannual report made by the Commission under Article 6 of Directive (EU) 2015/849, and the risk assessments carried out by Member States pursuant to Article 7 of that Directive.
5.
The Authority shall, with the participation of the competent authorities, perform risk assessments of the strategies, capacities and resources of competent authorities to address the most important emerging risks related to money laundering and terrorist financing at Union level as identified in the supranational risk assessment. It shall perform those risk assessments in particular for the purpose of issuing the opinion that it is requested to deliver pursuant to Article 6(5) of Directive (EU) 2015/849. The Authority shall perform risk assessments on the basis of the information available to it, including peer reviews in accordance with Article 30 of this Regulation, the analysis that it has conducted on an aggregate basis of the information collected for the purposes of the central database pursuant to paragraph 2 of this Article, as well as relevant evaluations, assessments or reports drawn up by international organisations and intergovernmental bodies with competence in the field of preventing money laundering and terrorist financing and the risk assessments by the Member States prepared pursuant to Article 7 of Directive (EU) 2015/849. The Authority shall make the risk assessments available to all competent authorities.
For the purposes of the first subparagraph of this paragraph, the Authority, through the internal committee established under paragraph 7 of this Article, shall develop and apply methods to allow for an objective assessment, as well as a high- quality and consistent review of the assessments and the application of the methodology and to ensure a level playing field. That internal committee shall carry out the quality and consistency review of the risk assessments. It shall prepare the draft risk assessments for adoption by the Board of Supervisors in accordance with Article 44.
6.
In cases where there are indications of breaches, on the part of financial sector operators, of the requirements laid down in Directive (EU) 2015/849 and where there is a cross-border dimension with third countries, the Authority shall have a leading role in contributing to facilitate cooperation between competent authorities in the Union and the relevant authorities in third countries where necessary. This role of the Authority shall be without prejudice to the regular interactions by competent authorities with third-country authorities.
7.
The Authority shall establish a permanent internal committee on anti-money-laundering and countering terrorist financing to coordinate measures in order to prevent and counter the use of the financial system for the purpose of money laundering or terrorist financing and to prepare, in accordance with Regulation (EU) 2015/847 and Directive (EU) 2015/849, all draft decisions to be taken by the Authority in accordance with Article 44 of this Regulation.
8.
The committee referred to in paragraph 7 shall be composed of high-level representatives of the authorities and bodies of all Member States competent to ensure the compliance of financial sector operators with Regulation (EU) 2015/847 and Directive (EU) 2015/849 who have expertise and decision-making powers in the area of the prevention of the use of the financial system for the purpose of money laundering or terrorist financing as well as high-level representatives who have expertise in the different business models and sectoral specificities of the Authority, of the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and of the European Supervisory Authority (European Securities and Markets Authority) respectively. The high-level representatives of the Authority and of those other European Supervisory Authorities shall participate in the meetings of that committee without the right to vote. In addition, the Commission, the ESRB, and the Supervisory Board of the European Central Bank, shall each nominate a high-level representative to participate in meetings of that committee, as observers. The chair of that committee shall be elected by and from the voting members of that committee.
Each institution, authority and body referred to in the first subparagraph shall nominate an alternate representative from its staff, who may replace the member where that person is prevented from attending. Member States where more than one authority is competent for ensuring compliance with Directive (EU) 2015/849 for financial sector operators may nominate one representative for each competent authority. Irrespective of the number of competent authorities represented in the meeting, each Member State shall have one vote. That committee may establish internal working groups on specific aspects of its work with a view to preparing draft decisions of that committee. Those groups shall be open for participation to staff from all competent authorities represented in that committee and from the Authority, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority).
9.
The Authority, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority) may at any time submit written observations on any draft decision of the committee referred to in paragraph 7 of this Article. The Board of Supervisors shall duly consider such observations before taking its final decision. Where a draft decision is based on, or connected with, the powers conferred upon the Authority under Article 9b, 17 or 19 and concerns:
(a)
financial institutions as defined in point (1) of Article 4 of Regulation (EU) No 1094/2010 or any of the competent authorities supervising them, or
(b)
financial market participants as defined in point (1) of Article 4 of Regulation (EU) No 1095/2010 or any of the competent authorities supervising them.
The Authority may only take the decision in agreement with the European Supervisory Authority (European Insurance and Occupational Pensions Authority), in the case of point (a), or of the European Supervisory Authority (European Securities and Markets Authority), in the case of point (b). The European Supervisory Authority (European Insurance and Occupational Pensions Authority) or the European Supervisory Authority (European Securities and Markets Authority) shall notify their views to the Authority within 20 days from the date of the draft decision by the committee referred to in paragraph 7. Where they do not notify their views to the Authority within 20 days nor request a duly justified prolongation for notifying such views the agreement shall be presumed.
( 24 ) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).