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Law No. 238 Of 5 December 2011

Original Language Title:  LEGE nr. 238 din 5 decembrie 2011

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LEGE no. 238 238 of 5 December 2011 for approval Government Emergency Ordinance no. 53/2008 amending and supplementing Law no. 656/2002 for the prevention and sanctioning of money laundering, as well as for the establishment of measures to prevent and combat the financing of terrorist acts
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 861 861 of 7 December 2011



The Romanian Parliament adopts this law + Article I Approval Government Emergency Ordinance no. 53 53 of 21 April 2008 amending and supplementing Law no. 656/2002 for the prevention and sanctioning of money laundering, as well as for the establishment of measures to prevent and combat the financing of terrorist acts, published in the Official Gazette of Romania, Part I, no. 333 of 30 April 2008, as amended, with the following amendments and additions: 1. in Article I, point 2, letter e) of Article 2 shall be amended and shall read as follows: "" e) credit institution means the entity defined in art. 7 7 para. ((1) pt. 10 of Government Emergency Ordinance no. 99/2006 on credit institutions and capital adequacy, approved with amendments and additions by Law no. 227/2007 ,, as amended and supplemented; '. 2. In Article I, point 3, paragraph 1, the introductory part of paragraph 4 and paragraph 5 of Article 2 ^ 1 shall be amended and shall read as follows: "" Art. 2 2 ^ 1. -(1) For the purposes of this law, politically exposed persons are individuals who exercise or have exercised important public functions, their family members, as well as persons publicly known as close associates of individuals who exercise important public functions. .................................................................... (4) The members of the families of persons exercising important public functions are, for the purposes of this .................................................................... (5) People publicly known as close associates of individuals exercising important public functions are: a) any natural person who proves to be the real beneficiary of a legal person or a legal entity together with any of the persons referred to in par. ((2) or having any other privileged business relationship with such a person; b) any natural person who is the only real beneficiary of a legal person or a legal entity known to be established for the benefit of one of the persons referred to in par. ((2). ' 3. In Article I, point 4, paragraph 1 of Article 3 shall be amended and shall read as follows: "" Art. 3. -(1) As soon as a natural person, within the activity carried out for a legal person provided for in art. 8, or one of the individuals referred to in art. 8 has suspicions that an operation to be carried out is aimed at laundering money or financing acts of terrorism, informs the person designated according to art. 14 14 para. (1), which immediately notifies the National Office for Prevention and Control of Money Laundering, hereinafter referred to as the Office. The designated person shall analyse the information received and notify the Office of reasonable reasoned suspicion. It confirms receipt of the referral. For the natural and legal persons referred to in art. 8 lit. k), the complaint is transmitted by the person who has suspicions that the operation to be carried out is aimed at laundering money or financing acts of terrorism. " 4. In Article I, paragraph 5, paragraph 9 of Article 3 shall be amended and shall read as follows: " (9) Form and content of the report for the operations referred to in paragraph ((1), (6) and (7) shall be determined by decision of the plenum of the Office, within 30 days from the date of entry into force of this Law. The reports provided in par. ((6) and (7) shall be transmitted to the Office within a maximum of 10 working days on the basis of a working methodology developed by the Office. " 5. In Article I, after point 6, a new point is inserted, paragraph 6 ^ 1, with the following contents: "" 6 ^ 1. In Article 4, after paragraph 2, a new paragraph (3) is inserted, with the following contents: " (3) Persons referred to in art. 8 8 immediately notifies the Office, when it finds that in relation to an operation or several operations that have been carried out on the account of a customer, there are suspicions that the funds are intended to launder money or to finance acts of terrorism. "" 6. In Article I, after point 7, a new point is inserted, paragraph 7 ^ 1, with the following contents: "" 7 ^ 1. Article 6 (11) is amended and shall read as follows: "" (1 ^ 1) Identity of the natural person who informed the designated natural person in accordance with art. 14 14 para. ((1) and of the natural person who, in accordance with art. 14 14 para. ((1), referred to the Office shall not be disclosed in the complaint. "" 7. In Article I, point 10, Article 7 shall be amended and shall read as follows: "" Art. 7. -(1) The application in good faith of the provisions of art. 3-5 by natural and/or legal persons, including those provided in art. 8, cannot attract disciplinary, civil or criminal liability thereof. (2) Suspension and extension of the suspension made with non-compliance with the legal provisions and in bad faith or carried out as a result of the commission of an illicit act, under the conditions of tort civil liability and an injury was caused, by the Office and by the Prosecutor's Office of the High Court of Cassation and Justice draws the state's responsibility for the damage caused. " 8. In Article I, paragraph 11, letter g) of Article 8 shall be amended and shall read as follows: "" g) service providers of companies or other entities other than those referred to in point (a). e) or f), as defined in art. 2 lit. j); '. 9. In Article I, point 12, Article 8 ^ 1 is amended and shall read as follows: "" Art. 8 8 ^ 1. -Persons provided in art. 8 are obliged, in carrying out their activity, to adopt measures to prevent money laundering and the financing of terrorist acts and, for this purpose, on the basis of risk, apply standard, simplified or additional measures of knowledge of to the clientele, allowing them to identify, where appropriate, and the real beneficiary. " 10. In Article I, point 14, Article 9 ^ 1 is amended and shall read as follows: "" Art. 9 9 ^ 1. -Persons provided in art. 8 will apply the standard customer knowledge measures to all new customers. The same measures will be applicable, depending on the risk, as soon as possible, and in the case of existing customers. " 11. In Article I, after paragraph 16, a new point is inserted, paragraph 16 ^ 1, with the following contents: "" 16 ^ 1. Article 13 is amended and shall read as follows: "" Art. 13. -(1) In each case where the identity is requested according to the provisions of this law, the legal person or the natural person provided in art. 8, which has the obligation to identify the customer, will keep a copy of the document, as proof of identity, or identity references, for a minimum period of 5 years, starting with the date when the relationship with the customer ends. (2) Persons referred to in art. 8 will keep the secondary or operative records and records of all financial operations arising from the conduct of a business relationship or an occasional transaction for a period of at least 5 years after the end of the business relationship, respectively from the realization of the occasional transaction, in an appropriate form, in order to be used as means of proof in justice. "" 12. in Article I, point 18, after paragraph 4 of Article 14, a new paragraph (5) is inserted, with the following contents: " (5) Persons designated according to par. ((1) and (1 ^ 1) will have direct and timely access to the relevant data and information necessary to fulfill the obligations provided by this law. " 13. In Article I, paragraph 20, paragraph 2 of Article 16 shall be amended and shall read as follows: " (2) The Office shall organize at least once a year training seminars in the field of prevention of money laundering and the financing of acts of terrorism. Upon request, the Office and the supervisory authorities may participate in the special training programs of the persons referred to in art. 8 8. " 14. In Article I, after paragraph 20, a new point is inserted, paragraph 20 ^ 1, with the following contents: "" 20 ^ 1. After Article 16, a new article is inserted, Article 16 ^ 1, with the following contents: "" Art. 16 16 ^ 1. -(1) Authorization and/or registration of entities performing foreign exchange activities on the territory of Romania, other than those subject to the supervision of the National Bank of Romania under this law, shall be carried out by the Ministry Public Finance, through the Commission for the authorisation of foreign exchange activity, hereinafter referred to as the Commission. (2) The legal provisions regarding the tacit approval procedure do not apply within the authorization and/or registration procedure of the entities referred to in par. ((1). (3) The composition of the Commission referred to in paragraph ((1) is established by joint order of the Minister of Public Finance, the Minister of Administration and Interior and the President of the Office, from its structure being part of at least one representative of the Ministry of Public Finance, Ministry of Administration and Interior and Office. (4) The procedure for the authorization and/or registration of the entities referred to in par. ((1) shall be established by order of the Minister of Public Finance. "" 15. in Article I, paragraph 21, points a) and b) of paragraph 1 of Article 17 shall be amended and shall read as follows: " a) prudential supervisory authorities, for persons subject to such supervision, according to the law, including for branches in Romania of foreign legal entities subject to similar supervision in the country of origin; b) Financial Guard and other authorities with financial-fiscal control powers, according to the law; the Financial Guard has powers including for entities performing foreign exchange activities, except those supervised by the authorities referred to in letter a); ". 16. in Article I, point 21, after paragraph 3 of Article 17, a new paragraph (4) is inserted, with the following contents: " (4) In the exercise of the powers of verification and control, the authorized representatives of the Office may consult the documents drawn up or held by the persons subject to the control and may retain their photocopies in order to establish circumstances relating to suspected money laundering and terrorist financing. " 17. in Article I, point 23, after paragraph 2 ^ 1 of Article 19, a new paragraph (2 ^ 2) is inserted, with the following contents: "" (2 ^ 2) The office may order, at the request of the Romanian judicial bodies or at the request of foreign institutions that have similar duties and which have the obligation to keep the secret under similar conditions, the suspension of a transaction that has in order to launder money or finance acts of terrorism, art. 3 3 para. ((2)-(5) by applying accordingly, taking into account the justifications submitted by the requesting institution, as well as the fact that the transaction could have been suspended if it had been the subject of a report on a suspicious transaction submitted by one of the natural and legal persons referred to in art. 8 8. " 18. In Article I, after paragraph 25, a new point is inserted, paragraph 25 ^ 1, with the following contents: "" 25 ^ 1. In Article 22, the introductory part of paragraph 1 shall be amended and shall read as follows: "" Art. 22. -(1) The following facts are contrary to the Constitution, if they were not committed under such conditions as to constitute crimes: "". 19. in Article I, paragraph 26, point b) of paragraph 1 of Article 22 shall be amended and shall read as follows: " b) non-compliance with the obligations provided in 3 3 para. (2) third sentence, art. 5 5 para. ((2), art. 8 ^ 1, 8 ^ 2, 9, 9 ^ 1, 9 ^ 2, art. 12 ^ 1 para. ((1), art. 13 13-15 and in art. 17 17. " 20. In Article I, paragraph 29, paragraph 4 of Article 23 shall be amended and shall read as follows: " (4) If the act was committed by a legal person, in addition to the penalty of the fine, the court applies, as the case may be, one or more of the complementary penalties provided for in art. 53 ^ 1 para. 3 lit. a)-c) of the Criminal Code. " 21. In Article I, paragraph 35 is amended and shall read as follows: "" 35. Article 29 shall be repealed. ' + Article II Provisions art. 16 ^ 1 of Law no. 656/2002 for the prevention and sanctioning of money laundering, as well as for the establishment of measures to prevent and combat the financing of terrorist acts, with subsequent amendments and completions, shall apply to 120 days from the date of entry into force of this law. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (1) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT ROBERTA ALMA ANASTASE SENATE PRESIDENT MIRCEA-DAN GEOANA Bucharest, December 5, 2011. No. 238. __________