Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Sweden: Supreme Court Rules Ice Hockey Player’s Cross-Check Constitutes Assault, Not Excused as Part of Game

(July 19, 2018) On July 10, 2018, the Supreme Court of Sweden handed down a judgment that sets limits for what violent actions may be deemed “consented to” as part of an ice hockey game. (Högsta Domstolen [Supreme Court] Case No B 4888-17, July 10, 2017, Supreme Court website.) The issue in the case was whether a player can be criminally liable for an injury caused in the course of an ice hockey game, or if the injury is covered by prior consent of the participants. (Id. at ¶ 1.)

Background

During a professional ice hockey playoff game in Sweden in March 2015, one player cross-checked another in the back and then again in the unprotected back of his neck. (10 Matcher för Jakob Lilja, HOCKEY ALLSVENSKAN (last visited July 13, 2018); Supreme Court Case No B 4888-17, §§ 2–3.)  The injured player was taken off the ice on a stretcher but was not seriously hurt. (Swedish Ice Hockey Star Faces Assault Charge over Fight During Game, LOCAL.SE (Jan. 31, 2017).) The incident was reported to the Svenska Ishockeyförbundets disciplinnämnd [Swedish Ice Hockey Association Disciplinary Board (hereinafter the Disciplinary Committee)], which concluded that the incident was not connected to the game and banned the aggressor from participating in 10 consecutive games. (10 Matcher för Jakob Lilja, supra; Supreme Court Case No B 4888-17, § 3.) The Disciplinary Committee determined that the cross-check “occurred outside of the game and was completely unnecessary and disrespectful. Hitting someone hard against the unprotected part of the neck is associated with a great risk of serious injury. Any other penalty than a severe suspension is unthinkable.” (10 Matcher för Jakob Lilja, supra (all translations by author).) In its choice of punishment the Disciplinary Committee considered that the accused had previously been reported to the Disciplinary Committee for a “considerably less serious violation.” (Id.)  The accused thus received a 10-game suspension (four converted into a monetary fine as per custom). (Id.)

Criminal Proceedings

Separately, following the sentence from the Disciplinary Committee, the District Court determined that the accused’s actions constituted assault (id. at ¶ 4), a decision that was reaffirmed by the Appellate Court (id.). The Supreme Court then heard the case on appeal by the accused.

Theory of Social Adequacy—Consent to Injury in Sports

Consent to a violent act may make an otherwise criminal act permissible under Swedish law. The Criminal Code provides the written exceptions for when an action can be considered covered (and allowed) by the victim’s consent. The section that typically is interpreted to mean that any injury caused during play is not a criminal act states,[a]n act that someone commits with the consent of the person against whom the act is done is a crime only if the act, considering the injury, violation, or danger that it carries, its purpose and other circumstances, is indefensible.” (24 kap. 7 § BROTTSBALKEN [BrB] [CRIMINAL CODE], Swedish Parliament website.)

In addition to the exception for liability found in 24 kap. 7 § BrB, Sweden employs a theory of social adequacy (social adekvans), an unwritten rule that makes violence excusable in certain cases, such as in the circumcision of boys for religious reasons. (See Supreme Court case, Nytt Juridiskt Arkiv [NJA] [Supreme Court Reports] 1997 s. 636.) According to the Supreme Court, the common factor in cases where an act is permissible under the theory of social adequacy is society’s interest in allowing the act. (Supreme Court Case No B 4888-17, ¶ 10.)

Typically actions performed in sports, which at any other time would be considered assaults, are permitted with reference to 24 kap. 7 § BrB and the theory of social adekvans. (Id. ¶ 17.) This means that not only are any actions that are permissible in a sport excused, but also impermissible actions, actions that lead to a “penalty” during the game, are also permissible. (Id. ¶ 18.) Provided that the assault is “within the framework of the game,” the act is considered acceptable or “adequate,” even if the injured party did not consent to the particular action or injury. (Id. ¶ 19.) The Supreme Court has previously determined that schoolyard fights are covered by this theory. (Skolgårdsbråket [Schoolyard Fight] NJA 1993 s. 553; NJA 1997 s. 636, ¶ 21.)

Actions Not Protected by Social Adequacy

The Supreme Court determined that a serious injury inflicted with intent by the assaulter can never be seen as falling within the framework of the game. (Supreme Court Case No B 4888-17, ¶ 24.)  In this case the injury inflicted was not allowed in accordance with ice hockey rules and the injured could not have consented to it. (Id. ¶ 28.) The court did not address the fact that the injured player announced in the district court proceedings that he was not interested in pressing charges and that he would rather leave the courthouse to get back to hockey practice. (Martin Tolén & Stefan Alfelt, Bad om att få lämna rättegången mot Lilja, AFTONBLADET (Mar. 16, 2017).)

The lower court, the District Court of Malmö, in its original decision noted that

[t]he assault that JL perpetrated on JO is not permitted in ice hockey rules. In addition, the assault violates the idea of the game. Moreover, taking the idea of the game into consideration, it cannot be deemed to be a permitted valid risk by JL, especially considering that the ice hockey puck was some six to eight meters away [from the injured player] when the [assault] was made. Thus, JL’s action goes beyond what is covered by the general consent to violence that JO has consented to by participating in the game. It is obvious that JL knew this. (Åklagarmyndigheten, ÅM 2017/7713, Feb. 2, 2018, Swedish Prosecution Authority website (translation by author).)

Sentencing No Double Monetary Punishment

Overturning a decision on the issuing of monetary fines by the lower and appellate courts, the Supreme Court found that no monetary fine should be awarded, despite otherwise being customary in cases like this, because of the fine imposed by the Disciplinary Committee. (Supreme Court Case No B 4888-17, ¶¶ 4, 34.) In addition, a prison sentence was considered unwarranted and the accused received a one-month probation sentence, meaning that the assault carried a penal value of one month’s imprisonment.

Back to Top

Afghanistan: Distribution of Controversial Electronic Identity Cards Launched

(July 19, 2018) The distribution of controversial Electronic National Identity Cards (known as the e-Tazkira) throughout Afghanistan was launched on May 3, 2018, by Afghan president Ashraf Ghani, with Ghani becoming the first person in the country to receive the card. The president cited security concerns as the factor that made him start the process, noting that the attackers in a recent suicide attack in Kabul may have used fake IDs. (MPs Slam Government’s Decision to Distribute Electronic ID Cards, ARIANA NEWS (May 5, 2018); Ghani Launches Distribution of Long-Disputed e-ID Cards, ARIANA NEWS (May 3, 2018).) The move was met with strong opposition from the Chief Executive (CE) of Afghanistan and members of Parliament, who expressed concern that it would provoke division in the country. (Id)

Background

Parliament passed the Population Registration Act (PRA) in 2013, with the law entering into force in 2014. The main objectives of the Act include verifying the citizenship of citizens by e-Tazkira; regulating the affairs related to registering the population of the country; collecting information about the population of the country; and accurately determining the number of births, deaths, marriages, and divorces. (Qaanoon-e Sabt-e Ahwaal-e Nofoos [Population Registration Act] 1393 [2014], arts. 2 & 4, Ministry of Justice website (in Dari).) The PRA specifies the contents of the identification cards in article 6.

After the Act came into force, President Ghani issued a presidential decree endorsing the inclusion of nationality and ethnicity in the e-Tazkiras. The nationality of a citizen would be “Afghan,” while the ethnicity listed on the card would refer to one of the ethnic groups residing in the country. (Mohammad Hassan Khitab, Ghani Endorses Changes to Population Registration Act, PAJHWOK AFGHAN NEWS (Mar. 2, 2017).) Ghani’s inclusion of the term “Afghan” as the common nationality for all the ethnic groups in the country proved controversial, however, and sparked a great legal and political debate within the country. Many political figures have insisted that the e-Tazkiras be distributed on the basis of the original ratified law, while others believe that the contents of the e-Tazkiras should be in accordance with the president’s decree. (Ahmad Shefaei, Why Has the Distribution of Afghanistan E-Tazkira Taken Many Years?, BBC PERSIAN (Dec. 16, 2017) (in Persian).)

Controversy over “Nationality” and Ethnicity”

Before the PRA was passed in 2013, the main disagreement between lawmakers in Parliament’s lower house (Wolesi Jirga, or House of the People, tasked with making and passing laws) and upper house (Meshrano Jirga, or House of Elders, which is primarily an advisory body) was whether the term “tribe” or the term “Afghan” should be used on the e-Tazkiras. Ultimately, the law Parliament passed included only the citizen’s name, father’s name, grandfather’s name, current residence, original residence, and date and place of birth. (The Afghan Parliament, PAJHWOK AFGHAN NEWS (last visited July 17, 2018); Shefaei, supra.)

At present, critics of the President Ghani’s decree claim that the term “Afghan” refers to a specific “Pashtun” tribal name that does not cover all the citizens of the country and imposes one ethnicity on all citizens, while supporters of the decree claim that the term “Afghan” refers to anyone living in the territory of Afghanistan. In their view, anyone who does not accept the Afghan nationality should leave the country. (Jelena Bjelica & Ali Yawar Adili, The E-Tazkera Rift: Yet Another Political Crisis Looming?, PAJHWOK AFGHAN NEWS (Feb. 22, 2018).)

President Ghani and the PRA

The distribution of the e-Tazkiras was scheduled to begin after President Ghani’s endorsement of the PRA in the first days of his presidency but could not commence because of the protests of some social and political groups who demanded that nationality be included in the e-Tazkira. (Population Registration Act art. 6; Shefaei, supra.) Protesters in Kandahar (a southern, predominantly Pashtun province of Afghanistan), for example, said that they would not take e-Tazkiras that did not include “Islam” as the religion and “Afghan” as the national identity. (Mozaaheray Shemaaray az Baashendagaan-e Welaayat-e Qandahaar [Protest of Some of the Citizens of Kandahar], ARIANA NEWS (Sept. 14, 2015) (in Dari).)

Under pressure from the protests, the presidential cabinet’s Committee of Laws amended article 6 to add nationality and ethnicity to the e-Tazkira and resulted in Ghani’s presidential decree. (Ta‘deel-e Barkhay Mawaad-e Qaanoon-e Sabt-e Ahwaal-e Nofoos [Amending Some Articles of the Population Registration Act], 1395 [2016], arts. 4 & 6, Ministry of Justice website (in Dari).)

When the amendment to article 6 provided for in the presidential decree was sent to the lower house, the house rejected it, saying that including nationality and ethnicity was not necessary in the e-Tazkiras. (Shefaei, supra.) When the upper house approved the amendment, however, a joint commission was convened to resolve the issue but was unable to reach any final decision because of the absence of four of the commission’s members from the lower house—that is, half of the lower house’s members on the commission. (Mohammad Jawad Safdary, (Tarh-e Tazkira-e Electronic Ka’i Ejraaee Khwaahad Shod? [When Will the E-Tazkira Process Be Implemented?], DAILY AFGHANISTAN (Jan. 1, 2018) (in Dari); Decision of a Parliamentary Committee of Afghanistan on the Inclusion of “Afghan” in the Birth Certificate, BBC PERSIAN (Dec. 18, 2017) (in Persian).) Ultimately, despite the absence of those four representatives, the amendment was approved by the other members of the joint commission, which, by law, endows the amendment with the same legal status as if it had been approved by both houses. Many members of the lower house have consequently criticized both the commission’s decision to vote on the amendment when the absence of the four members left the lower house with less representation on the commission than the upper house, and the decision to issue a presidential decree to replace an act already passed by both houses and endorsed by the president. The proponents of the amendment maintain that the law was passed by proper legal process and therefore the e-Tazkiras must be distributed soon. (Mohammad Islam Behnosh, Doo Dastagee bar sar-e Tauzay‘ Tazkera-e Electronikee dar Majles-e Nomaayandegaan [Schism over Distribution of the E-Tazkira in the House of Representatives], YASH NEWS (May 5, 2018).)

The Chief Executive and the PRA

The post of chief executive, which is akin to that of prime minister, was created after Afghanistan’s controversial 2014 election when neither Abdullah Abdullah nor Ashraf Ghani accepted the result of the elections and then agreed to form a “National Unity Government” with executive powers divided between them. (Shamil Shams, Understanding Afghanistan’s Chief Executive Officer, DEUTSCHE WELLE (Sept. 30, 2014).) From the time the post was created, problems and disagreements have arisen between the president and the CE on various issues, reportedly because of violations of the agreement by the two men. (Hamid M. Saboory, What Is Going Wrong with Afghanistan’s National Unity Government?, THE DIPLOMAT (Sept. 29, 2016).)

One of those issues has been the distribution of the e-Tazkiras. After the president started the distribution, claiming security concerns, the CE countered that the lack of agreement in the National Unity government’s leadership rendered the distribution illegitimate and an invitation to a crisis in the country. (Amin Behzad, Abdullah: Shoro‘-e Tauzay‘ Tazkera Electronic Bedoon-e Tawaafoq, Da‘wat ba Bohran Ast [Abdullah: Starting the Distribution of the E-Tazkira Without Agreement Is an Invitation to Crisis] DEUTSCHE WELLE DARI (May 3, 2018).)

The Public and the PRA

Following the committee’s decision and the president’s decision to initiate distribution of the e-Tazkiras, protests broke out in the central provinces north of Kabul, with protesters in Panjshir accusing the president of acting tyrannically. These protesters do not want to be classified as having Afghan nationality and are calling for e-Tazkira that do not mention nationality in line with the original law passed by Parliament. (Tazaahoraat-e Mardom-e Panjsheer dar E‘teraaz ba Tauzay‘ Tazkeray Electronikee [Protest of the People of Panjshir over Distribution of E-Tazkiras], BAZTAB NEWS (May 9, 2018) (in Dari).)

Mohammad Alam Ezidyar, first deputy of the upper house, has said that with protests in eight provinces of the country over the distribution of the e-Tazkiras, the government needs to halt the distribution process until there is political agreement on the issue. (Ezidyaar: Waqtay Mardom Tazkera Namaygeerand, Hokomat ba Kee Tauzay‘ Maykonad [When the People Refuse to Take the E-Tazkira, to Whom Is the Government Distributing Them?] SPUTNIK AFGHANISTAN (June 6, 2018) (in Dari).)

Prepared by Ahmad Vali Behnood, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.

Back to Top

Several Pacific Countries Announce Bans on Single-Use Plastic Bags

(July 18, 2018) On July 11, 2018, it was reported that Niue was the latest Pacific Island country to announce a ban on single-use plastic bags, following the implementation of a similar ban in Vanuatu, and related announcements by Samoa and Papua New Guinea. (Niue Joins Growing Pacific Movement to Ban Plastics, RNZ (July 11, 2018).) In fact, the ban imposed by the government of Vanuatu extends to other single-use plastics, specifically plastic drinking straws and polystyrene food containers, and the government of Samoa is examining similar restrictions.

Last year, Fiji implemented a levy on plastic bags. (Environment and Climate Change Levy (Plastic Bags) Regulation 2017 (L.N. No. 61), FIJI GAZETTE SUPPLEMENT No. 29, 163 (Aug. 1, 2017).) Other Pacific jurisdictions that have implemented bans or other restrictions include American Samoa, the Marshall Islands, Northern Marianas, and the Micronesian state of Yap. (More Pacific Islands Step Up Battle Against Plastic, RADIO NEW ZEALAND (RNZ) (Aug. 1, 2017).)

The bans and other restrictions follow discussions, including at the June 2017 United Nations Oceans Conference, regarding plastic pollution in the Pacific Ocean. The final “call for action” of that conference included the following statement: “Implement long-term and robust strategies to reduce the use of plastics and microplastics, particularly plastic bags and single use plastics, including by partnering with stakeholders at relevant levels to address their production, marketing and use.” (Our Ocean, Our Future: Call for Action, UNITED NATIONS OCEANS CONFERENCE (last visited July 11, 2018).)

Niue

Niue, a self-governing state in free association with New Zealand, has a population of around 1,600 people. (The World Factbook: Niue, CENTRAL INTELLIGENCE AGENCY (last updated July 11, 2018).) The chief executive of Niue Tourism told Radio New Zealand that the country would phase in a ban on plastic bags over the next twelve months, and that substitute reusable bags would be provided to each household, with assistance from the Niue and New Zealand governments. (Niue Joins Growing Pacific Movement to Ban Plastics, supra.) After the twelve month period, no plastic bags would be imported and there would be none for sale. (Niue Joins Growing Pacific Ban on Plastic Bags, DATELINE PACIFIC, RNZ (July 11, 2018).)

Vanuatu

The government of Vanuatu was the first in the Pacific to announce a ban on single-use plastic bags, along with plastic straws and polystyrene containers. The ban came into effect on July 1, 2018. Under the relevant order, made under the Waste Management Act No. 24 of 2014 (PacLII website), it is an offense to

  • manufacture, sell, give, or otherwise provide plastic shopping bags to other people (this does not include plastic bags that contain or are used to wrap or carry meat or fish as in this case plastic is needed for food safety and hygiene);
  • manufacture, sell, give, or otherwise provide polystyrene takeaway boxes to other people; and
  • manufacture, sell, give, or otherwise provide plastic straws to other people (this does not include straws that are an integral part of the packaging of a product—for example, a straw attached to milk or juice ‘popper’ boxes). (Plastic Ban, DEPT. OF ENVIRONMENTAL PROTECTION & CONSERVATION (last visited July 13, 2018); Waste Management Regulations Order No. 15 of 2018 and Waste Management (Penalty Notice) Regulation Order No. 17 of 2018, OFFICIAL GAZETTE No. 10 (Feb. 2, 2018).)

An individual who manufactures the relevant items can be penalized with a fine of 50,000 vatu (about US$450) for the first offense, and 80,000 vatu (about US$718) for a subsequent offense. Corporations face fines of 100,000 vatu (about US$890) (first offense) and 200,000 vatu (about US$1,780) (subsequent offense). Individuals caught selling, giving, or otherwise providing the items to others can be fined 20,000 vatu (about US$180) for a first offense and 50,000 vatu for a subsequent offense, while the fines for corporations are 50,000 vatu and 100,000 vatu. (Plastic Bansupra; Waste Management (Penalty Notice) Regulation Order No. 17 of 2018.)

Vanuatu is made up of 82 islands, with a population of around 283,000 people. (The World Factbook: Vanuatu, CENTRAL INTELLIGENCE AGENCY (last updated July 12, 2018); Vanuatu Bans Plastic and Fines Rubbish Dumpers, RNZ (Mar. 23, 2018).)

Samoa

In June 2018, the government of Samoa stated that it “aims to ban single use plastic bags and straws. It is also intended that styrofoam food containers and cups will be banned once environmentally friendly options have been identified and are in use. It is proposed that alternatives to single-use plastic bags include reusable paper bags and reusable cloth bags.” (Plastic Bag Ban Initiative Consultations, MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT (last visited July 13, 2018).) The initial ban would come into effect in January 2019. (Id.Samoa Looks to Ban All Single-Use Plastic, RNZ (June 23, 2018).)

Samoa has a population of around 200,000 people. (The World Factbook: Samoa, CENTRAL INTELLIGENCE AGENCY (last updated July 12, 2018).)

Papua New Guinea

In April 2018, it was reported that the government of Papua New Guinea would impose a full ban on importing or manufacturing all plastic shopping bags, with a one-month grace period before enforcement started. (PNG Imposes Full Ban on Plastic Shopping Bags, RNZ (Apr. 18, 2018).) This followed a ban on importing or manufacturing nonbiodegradable plastic bags that came into effect in 2014. (Id.)

The Minister for Environment and Conservation and Climate Change indicated that “the Environment (Ban on Non-Biodegradable Plastic Shopping Bags) Policy 2009 and the Environment (Control of Biodegradable Plastic Shopping Bag) Regulation 2011 implemented by CEPA [Conservation and Environment Protection Authority] since 2014 had not been effective, as the problems of plastic littering continues to worsen every day.” (Environment Levy Imposed on Plastic Bags, PAPUA NEW GUINEA POST-COURIER (Apr. 16, 2018).) He said that “[s]ome people are taking advantage of the fact that biodegradable plastic[s] are allowed for import, and import non-biodegradable plastic shopping bags amounting to several tonnes which is now becoming a great concern because plastic bags pose a significant threat to our fish and marine resources and our health and wellbeing.” (Luke Kama & Lemach Levari, Plastic Bag Ban, THE NATIONAL (Apr. 17, 2018).) Those who wished to continue importing or manufacturing plastic bags would be required to pay a levy in order to cover the cost of managing the associated waste. (Id.)

Papua New Guinea has a population of around 7 million people. (The World Factbook: Papua New Guinea, CENTRAL INTELLIGENCE AGENCY (last updated July 12, 2018).)

Back to Top

Italy: New Legislation Creates Center to Monitor State-Regional Financial Agreements on Indebtedness

(July 17, 2018) On June 28, 2018, new legislation came into effect in Italy creating the Center for the Monitoring of Regional Agreements to provide oversight related to the indebtedness of the regions and local entities. (Decree No. 67 of the President of the Council of Ministers of April 23, 2018, Regulations on the Amendments to Decree No. 21 of the President of the Council of Ministers of February 21, 2017, on the Criteria and Modalities for the Implementation of Article 10, Paragraph 5 of Law No. 243 of December 24, 2012, on Recourse to Indebtedness by the Regions and Local Entities, Including the Implementation Modalities of the Substitutive Power of the State, in Case of Inertia or Delay, by the Regions and the Autonomous Provinces of Trent and Bolzano (Decree No. 67), GAZZETTA UFFICIALE [OFFICIAL GAZETTE] [G.U.] No. 135, June 13, 2018 (in Italian), G.U. website.)

Motivation for the New Legislation

Decree No. 67 was issued by the President of the Council of Ministers as a response to the constitutional issues debated during a constitutional legitimacy case held at the Italian Constitutional Court concerning the impact of certain budgetary commitments by the Italian state, the regions, and other local entities. (Decision No. 247/2017 of October 11, 2017, of the Italian Constitutional Court in a Constitutional Legitimacy Case Lodged by the Autonomous Provinces of Bozano and Trent, and the Autonomous Regions of Trentino-Alto Adige/Südtirol and Friuli-Venezia Giulia, and the Veneto Region, G.U. No. 49, Dec. 6, 2017 (in Italian), Conference of the Regions and Autonomous Provinces website.)

New Oversight Mechanism

The new legislation creates the “Center for the Monitoring of Regional Agreements” as a mechanism to verify compliance with the financial agreements executed between the state and the regions. (Decree No. 67, art. 1(1)(e).) The Monitoring Center is located at the Ministry of the Economy and Finances’ Department of General Accounting of the State (id.) and is composed of high-level officials from the Ministry of Economy and Finance and the Ministry of the Interior, as well as representatives from numerous government unions (id. art. 1(3)).

In order to monitor compliance with regional agreements and verify the full use of the financial allocations approved for the implementation of investments, the Monitoring Center must use available data and information in accordance with several criteria listed in the new legislation and other indicators that the Center may select on its own initiative. (Id. art. 1(19) & (20).) The Center is also empowered to prepare general principles and strategies for the full use of financial allocations and investments by local authorities. (Id. art. 1(22).)

Back to Top

European Union: 5th Anti-Money Laundering Directive Enters into Force

(July 16, 2018) On July 9, 2018, the amendment of the European Union (EU) Anti-Money Laundering Directive (5th AMLD) entered into force. The AMLD obligates certain entities to fulfill customer due diligence requirements when they conduct business transactions and have in place policies and procedures to detect, prevent, and report money laundering and terrorist financing. The amendment

  • brings custodian wallet providers and virtual-currency exchange platforms within the scope of the AMLD,
  • interconnects the national central beneficial ownership registers,
  • enhances access to these registers,
  • lowers thresholds for the use of anonymous prepaid cards,
  • establishes centralized mechanisms to identify holders of payment or bank accounts, and
  • sets stricter standards for financial transactions with high-risk third countries.

Member States must implement the new rules into national law by January 10, 2020. (Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 Amending Directive (EU) 2015/849 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, and Amending Directives 2009/138/EC and 2013/36/EU (5th AMLD), 2018 O.J. (L 156) 43, EUR-Lex website; Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and Repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (4th AMLD), 2015 O.J. (L 141) 73, EUR-Lex website).

Definition of Virtual Currencies and Custodian Wallet Providers

The amendment defines “virtual currencies” as “a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency and does not possess a legal status of currency or money, but is accepted by natural or legal persons as a means of exchange and which can be transferred, stored and traded electronically.” A “custodian wallet provider” is defined as “an entity that provides services to safeguard private cryptographic keys on behalf of its customers, to hold, store and transfer virtual currencies.” (5th AMLD art. 1, para. 2(d).) As previously mentioned, the new rules extend the customer due diligence requirements to custodian wallet providers and virtual-currency exchange platforms.

Central Beneficial Ownership Registers

Another change to improve transparency concerns the national central beneficial ownership registers in the EU Member States. Beneficial owners are defined as “any natural person(s) who ultimately owns or controls the customer, and/or natural person(s) on whose behalf a transaction or activity is conducted.” (4th AMLD art. 3, para. 6.) The amendment requires that the central beneficial ownership registers for corporate or other legal entities are available to any member of the general public. (5th AMLD art. 1, para. 15(c).) The previous version of the AMLD made access for members of the general public dependent on demonstrating a legitimate interest. (4th AMLD art. 30, para. 5.) Information on beneficial owners of trusts will for the first time be available to the general public, but only to those who show a legitimate interest. (5th AMLD art. 1, para.16(d).) Previously, only competent authorities, Financial Intelligence Units, and entities subject to the customer due diligence rules were granted access to beneficial ownership information on trusts. (4th AMLD art. 31, para. 4.) When a trust is the beneficial owner of an entity, information will be accessible to persons that file a written request. (5th AMLD art. 1, para.16(d).)

Furthermore, in order to facilitate cooperation and information exchange between the Member States, the amendment requires Member States to connect their central registers via the “European Central Platform.” (5th AMLD art. 1, para.15 (g).) The interconnection of the central registers via the European Central Platform must be completed by March 10, 2021. (Id. art. 1, para. 42.) Beneficial ownership information must be available through the national registers and the interconnected European Central Platform for at least five years and no more than ten years after the entity has been removed from the register. (Id. art. 1, para.15 (g).)

Use of Anonymous Prepaid Cards

Furthermore, the amendment of the AMLD lowers the monetary thresholds for identifying the holders of prepaid cards to address risks linked to their use in financing terrorist activities. Payments carried out with anonymous prepaid cards online will be allowed only when the transaction amount does not exceed €50 (about US$59). (5th AMLD recital 14; art. 1, para. 17(b).) In-store use of an anonymous prepaid card must not exceed an amount of €150 (about US$176). (Id. art. 1, para. 7(a).)

Centralized Automated Mechanisms for Payment and Bank Accounts

The amendment obligates EU Member States to establish centralized registries or electronic data retrieval systems to identify natural or legal persons holding or controlling payment accounts, bank accounts, and safe-deposit boxes. (Id. art. 1, para. 19.) The national Financial Intelligence Units (FIUs) must be allowed direct, immediate, and unfiltered access to that information. Technical aspects of the interconnection of the centralized registries is to be worked out by the European Commission by June 26, 2020. (Id.)

High-Risk Third Countries

Finally, the amendment sets stricter standards for financial transactions with high-risk third countries, meaning non-EU countries that have been identified by the European Commission as having strategic deficiencies in their anti-money laundering or counterterrorism regimes. If a country is on that list, enhanced due diligence requirements must be performed by the companies conducting business with such a country. The AMLD harmonizes the enhanced due diligence obligations across the EU, but Member States may require companies to perform one or more additional mitigating measures. (Id. recital 12; art. 1, para. 11.)

Back to Top