How does the Spanish anti-money laundering law differ from the Portuguese law?
Despite the fact that the Spanish and Portuguese money laundering prevention rules are developed from the same EU Directives, different aspects can be appreciated.
It is a reality that EU policies have been delegating a series of functions regarding the prevention of money laundering to natural persons and legal persons in the exercise of their activity. Among others, we highlight Directive (EU) 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, which is transposed in Spain through (1) Law 10/2010 and its regulation approved by Royal Decree 304/2014.
With regard to Portuguese legislation, Directive (EU) 2015/849 is transposed in Law 83/2017, which encompasses the main obligation to prevent money laundering in Portugal.
When a Spanish company intends to set up in Portugal, it must take into account a series of aspects that differentiate the obligations and rights of each state.
In order to explain some of these characteristics, we will address the following questions:
WHAT ARE THE DIFFERENCES IN TERMS OF THE PERSONS SUBJECT TO EACH REGULATION?
In both countries, the subjects to which the prevention of money laundering is applicable are remarkably similar.
On the one hand, with regard to the Spanish legislation, Law 10/2010 establishes in its article 2 a description of the obliged subjects.
On the other hand, Portuguese Law 83/2017 makes a division between financial and non-financial entities in articles 3 and 4 respectively.
We could highlight two situations among the differential aspects of both regulations:
Firstly, Article 2.r) of Spanish Law 10/2010 establishes that those professionals who trade or act as intermediaries with works of art or antiques are bound by the rule without making a distinction to the amount of the transactions.
However, in line with the Portuguese legislation Lei 83/2017, its article 4.1.j) specifies that these art dealers will be subject to the law when: (1) the transactions are carried out in cash if the value is equal to or greater than €3,000 or (2) when carried out through another means of payment if the value is equal to or greater than €10,000.
Therefore, we can see that the Spanish legislator has preferred to cover professionals in the sector regardless of the amount of the transaction.
Secondly, within the real estate sector, the Portuguese legislator has chosen to include all those entities that carry out this type of activity in accordance with Article 3.1.p) and 4.1.d) of Law 83/2017. However, with regard to Spanish Law 10/2010, Article 2.i) states:
“Real estate developers and those who professionally exercise agency, commission or intermediation activities in the purchase and sale of real estate or in real estate leases involving a transaction for a total annual income equal to or greater than 120,000 euros or a monthly income equal to or greater than 10,000 euros”.
Consequently, in Portugal, not all those involved in the purchase and sale or leasing of real estate will be obliged to comply with the prevention of money laundering, unlike in Spain.
HOW ARE THE DUTIES OF OBLIGED PARTIES STRUCTURED?
However, the Spanish legislator distributes them throughout the legal text, devoting an article to each duty, for example, the duty of identification, the duty to cooperate with the authorities and the duty to control and intervene in the means of payment, which are typified respectively in articles 3, 21 and 35 of Law 10/2010.
With regard to the Portuguese law, Law 83/2017, in addition to establishing specific articles for each duty, groups together the preventive duties in Article 11, which include the duty of identification, the duty of collaboration and the duty of control.
Therefore, although they are very similar, they are distributed heterogeneously throughout the regulation.
Among the different duties, we can highlight that of formal identification with third parties:
On the one hand, Article 4 of the Spanish Regulation on the prevention of money laundering establishes that obliged parties must identify those third parties with whom they establish continuous or occasional commercial relations when the amount is equal to or greater than 1,000 euros.
On the other hand, the Portuguese legislator includes in Article 23 of Law 83/2017 that those entities must identify third parties with whom they maintain business relations.
However, with regard to transactions with occasional third parties, they must identify themselves when the amount is equal to or greater than €15,000 and, in addition, when it constitutes a transaction carried out in connection with a virtual currency activity, they must identify these third parties if it is equal to or greater than €1,000.
Therefore, we can highlight that the Spanish legislator, in order to comply with the prevention of money laundering, covers transactions in excess of 1,000 euros, regardless of the nature of the transaction.
WITH WHICH AUTHORITIES IS THERE AN OBLIGATION TO REPORT SUSPICIOUS TRANSACTIONS?
As far as Portugal is concerned, according to art. 43 of Law 83/2017, entities must inform the Departamento Central de Investigação e Ação Penal da Procuradoria-Geral da República (DCIAP) and the Unidade de Informação Financeira (UIF) whenever there is a suspicion that the capital comes from criminal activities or is related to the financing of terrorism.
Similarly, Article 18 of Law 10/2010 establishes that in Spain any suspicious event, transaction or attempt perceived by obliged entities must be reported to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences (SEPBLAC).
Therefore, we can conclude that the obligations to report suspicious transactions exist in both countries, however, the authorities are different.
