Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
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PART 4 Provisions Relating to Finance Services Industry, Professional Service Providers and Others | ||
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Chapter 1 Interpretation (Part 4) | ||
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Definitions. |
24.— (1) In this Part— | |
“barrister” means a practising barrister; | ||
“ beneficial owner” has the meaning assigned to it by sections 26 to 30 ; | ||
“business relationship”, in relation to a designated person and a customer of the person, means a business, professional or commercial relationship between the person and the customer that the person expects to be ongoing; | ||
“competent authority” has the meaning assigned to it by sections 60 and 61 ; | ||
“credit institution” means— | ||
(a) a credit institution within the meaning of Article 4(1) of the Recast Banking Consolidation Directive, or | ||
(b) An Post in respect of any activity that it carries out, whether as principal or agent, that would render it, or a principal for whom it is an agent, a credit institution as a result of the application of paragraph (a); | ||
“ customer ”— | ||
(a) in relation to an auditor, means— | ||
(i) a body corporate to which the auditor has been appointed as an auditor, or | ||
(ii) in the case of an auditor appointed to audit the accounts of an unincorporated body of persons or of an individual, the unincorporated body or the individual, | ||
(b) in relation to a relevant independent legal professional, includes, in the case of the provision of services by a barrister, a person who is a client of a solicitor seeking advice from the barrister for or on behalf of the client and does not, in that case, include the solicitor, or | ||
(c) in relation to a trust or company service provider, means a person with whom the trust or company service provider has an arrangement to provide services as such a service provider; | ||
“ Department” means the Department of Justice, Equality and Law Reform; | ||
“ designated accountancy body” means a prescribed accountancy body, within the meaning of Part 2 of the Companies (Auditing and Accounting) Act 2003 ; | ||
“designated person” has the meaning assigned to it by section 25 ; | ||
“ EEA State” means a state that is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993; | ||
“ Electronic Money Directive ” means Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC 5 ; | ||
“ external accountant” means a person who by way of business provides accountancy services (other than when providing such services to the employer of the person) whether or not the person holds accountancy qualifications or is a member of a designated accountancy body; | ||
“financial institution” means— | ||
(a) an undertaking that carries out one or more of the activities listed in points 2 to 12, 14 and 15 of Annex I to the Recast Banking Consolidation Directive (the text of which is set out for convenience of reference in Schedule 2 ) or foreign exchange services, but does not include an undertaking— | ||
(i) that does not carry out any of the activities listed in those points other than one or more of the activities listed in point 7, and | ||
(ii) whose only customers (if any) are members of the same group as the undertaking, | ||
(b) an insurance company that carries out the activities covered by the Life Assurance Consolidation Directive and is authorised in accordance with that Directive, | ||
(c) a person, other than a person falling within Article 2 of the Markets in Financial Instruments Directive, whose regular occupation or business is— | ||
(i) the provision to other persons of an investment service, within the meaning of that Directive, or | ||
(ii) the performance of an investment activity within the meaning of that Directive, | ||
(d) an investment business firm within the meaning of the Investment Intermediaries Act 1995 (other than a non-life insurance intermediary within the meaning of that Act), | ||
(e) a collective investment undertaking that markets or otherwise offers its units or shares, | ||
(f) an insurance intermediary within the meaning of the Insurance Mediation Directive (other than a tied insurance intermediary within the meaning of that Directive) that provides life assurance or other investment related services, or | ||
(g) An Post, in respect of any activity it carries out, whether as principal or agent— | ||
(i) that would render it, or a principal for whom it is an agent, a financial institution as a result of the application of any of the foregoing paragraphs, | ||
(ii) that is listed in point 1 of Annex I to the Recast Banking Consolidation Directive, or | ||
(iii) that would render it, or a principal for whom it is an agent, an investment business firm within the meaning of the Investment Intermediaries Act 1995 (other than a non-life insurance intermediary within the meaning of that Act) if section 2(6) of that Act did not apply; | ||
“group”, other than in the definition in this subsection of “public body”, has the same meaning as in Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council 6 ; | ||
“Insurance Mediation Directive” means Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation 7 ; | ||
“ Life Assurance Consolidation Directive” means Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance 8 ; | ||
“ Markets in Financial Instruments Directive” means Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC 9 ; | ||
“ member ”, in relation to a designated accountancy body, means a member, within the meaning of Part 2 of the Companies (Auditing and Accounting) Act 2003 , of a designated accountancy body; | ||
“ member ”, in relation to the Irish Taxation Institute, means a person who is subject to the professional and ethical standards of the Institute, including its investigation and disciplinary procedures, but does not include a person who is admitted to its membership as a student; | ||
“occasional transaction”, in relation to a customer of a designated person, means a single transaction, or a series of transactions that are or appear to be linked to each other, where— | ||
(a) the designated person does not have a business relationship with the customer, and | ||
(b) the total amount of money paid by the customer in the single transaction or series is greater than €15,000; | ||
“payment service” has the same meaning as in the Payment Services Directive; | ||
“ Payment Services Directive ” means Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC 10 ; | ||
“professional service provider” means an auditor, external accountant, tax adviser, relevant independent legal professional or trust or company service provider; | ||
“property service provider” means a person who by way of business carries out any of the following services in respect of property located in or outside the State: | ||
(a) the auction of property other than land; | ||
(b) the purchase or sale, by whatever means, of land; | ||
but does not include a service provided by a local authority in the course of the performance of its statutory functions under any statutory provision; | ||
“ public body” means a body, organisation or group— | ||
(a) specified in paragraph 1(1) to (4) of the First Schedule to the Freedom of Information Act 1997 (including as construed by paragraph 4 of that Schedule), or | ||
(b) established by or under an enactment and prescribed by regulations for the purposes of paragraph 1(5) of the First Schedule to that Act; | ||
“ Recast Banking Consolidation Directive ” means Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) 11 , as amended by the following: | ||
(a) the Payment Services Directive; | ||
(b) the Electronic Money Directive; | ||
“ regulated market” means— | ||
(a) a regulated financial market that is in an EEA State and is included in any list published by the European Commission (including any list on the Commission’s website), and in force, under Article 47 of the Markets in Financial Instruments Directive, | ||
(b) a regulated financial market in a place other than an EEA State, being a place that imposes, on companies whose securities are admitted to trading on the market, disclosure requirements consistent with legislation of the European Communities, or | ||
(c) a prescribed regulated financial market; | ||
“ relevant independent legal professional” means a barrister, solicitor or notary who carries out any of the following services: | ||
(a) the provision of assistance in the planning or execution of transactions for clients concerning any of the following: | ||
(i) buying or selling land or business entities; | ||
(ii) managing the money, securities or other assets of clients; | ||
(iii) opening or managing bank, savings or securities accounts; | ||
(iv) organising contributions necessary for the creation, operation or management of companies; | ||
(v) creating, operating or managing trusts, companies or similar structures or arrangements; | ||
(b) acting for or on behalf of clients in financial transactions or transactions relating to land; | ||
“relevant professional adviser” means an accountant, auditor or tax adviser who is a member of a designated accountancy body or of the Irish Taxation Institute; | ||
“solicitor” means a practising solicitor; | ||
“State competent authority” has the meaning assigned to it by section 62 ; | ||
“tax adviser” means a person who by way of business provides advice about the tax affairs of other persons; | ||
“transaction” means— | ||
(a) in relation to a professional service provider, any transaction that is carried out in connection with a customer of the provider and that is— | ||
(i) in the case of a provider acting as an auditor, the subject of an audit carried out by the provider in respect of the accounts of the customer, | ||
(ii) in the case of a provider acting as an external accountant or tax adviser, or as a trust or company service provider, the subject of a service carried out by the provider for the customer, or | ||
(iii) in the case of a provider acting as a relevant independent legal professional, the subject of a service carried out by the professional for the customer of a kind referred to in paragraph (a) or (b) of the definition of “relevant independent legal professional” in this subsection; | ||
and | ||
(b) in relation to a casino or private members’ club, a transaction, such as the purchase or exchange of tokens or chips, or the placing of a bet, carried out in connection with gambling activities carried out on the premises of the casino or club by a customer of the casino or club; | ||
“ trust or company service provider” means any person whose business it is to provide any of the following services: | ||
(a) forming companies or other bodies corporate; | ||
(b) acting as a director or secretary of a company under an arrangement with a person other than the company; | ||
(c) arranging for another person to act as a director or secretary of a company; | ||
(d) acting, or arranging for a person to act, as a partner of a partnership; | ||
(e) providing a registered office, business address, correspondence or administrative address or other related services for a body corporate or partnership; | ||
(f) acting, or arranging for another person to act, as a trustee of a trust; | ||
(g) acting, or arranging for another person to act, as a nominee shareholder for a person other than a company whose securities are listed on a regulated market. | ||
(2) The Minister may prescribe a regulated financial market for the purposes of the definition of “regulated market” in subsection (1) only if the Minister is satisfied that the market is in a place other than an EEA State that imposes, on companies whose securities are admitted to trading on the market, disclosure requirements consistent with legislation of the European Communities. | ||