Central Point of Contact - “OAM” Regulations implementing AMLD4 and PSD2

Further to the implementation by the OAM (Italian Authority dealing with financial Agents and Mediators)  of the provisions of Legislative Decree 231/2007 as subsequently modified (“Anti-Money Laundering Decree”) we set out below some short comments regarding the obligations arising with the creation of the central point of contact and the relations between the agents of EU EMI/PIs – electronic money institutions (EMIs), payment institutions (PIs) – and the central point of contact.

1.             Applicable laws

The obligations to counter money-laundering and the financing of terrorism as contained in the  Anti-Money Laundering Decree lie,  inter alia, with payment institutions, electronic money institutes, as well as their branches, and the other entities and agents as stated in article  128-quater, paragraphs 2 and 6, of the  TUB, registered on the list or in the special OAM section.

If payment institutions or electronic money institutions have a registered office and their headquarters in another Member State and are operating in Italy without branches, they are obliged to establish central points of contact  (“CPC”), that, pursuant to the Anti-Money Laundering Decree, are the newly obliged subjects for anti-money laundering purposes in the place of the  authorised entities and agents referred to in article 128-quater, paragraphs 2 and 6, of the TUB.

Pursuant to article 43 of the Anti-Money Laundering Decree, “the payment providers and the electronic money institutions with registered office and central headquarters in another Member state and operatingt in the territory of the Italian Republic without a branch, utilising other entities and agents, designate a central point of contact in Italy through which they can comply with all their Anti-Money Laundering obligations. The failure to create a central point of contact is sanctioned according to article 62 paragraph 1”.

According to Legislative decree dated 1 September 1993, n. 385 (“TUB”), CPC means: “the party or structure designated by the EU banks, electronic payment institutions or payment institution operating within the Italian republic under a regime of freedom of establishment, without  a branch, through agents as stated in article 128-quater of the  TUB”, other than financial agents operating for an Italian based IP/EMI, as stated by article 128-quater, paragraphs 2 and 6, of the TUB (“Agent”).

2.             Financial Agent’s obligations

Pursuant to art.  44 of the  Anti-Money Laundering Decree, the Agent :

a)  is the party required to gather information relating to:

• the client’s identifying data;
• the identifying data of the person issuing payment instructions;
• the effective owner’s identifying data;
• any other relevant information.

Such data must be sent within 20 days from the transaction date to the reference EMI/PI, or in case of an EMI/PI agent based in another Member state, to the  CPC;

b) must retain the information so gathered for a period of twelve months;

c) must inform the reference EMI/PI, or in case of an EMI/PI agent based in another Member state the POC, of any fact or information that is relevant in relation to a notification of a suspicious transaction.

In addition the Agent rendering payment services on behalf of Community EMI/PIs, if there is no central contact point, in order to send its data must:

• download the form “Communication according to art. 128-quater, paragraph 7, of the TUB”;
• complete the form in every respect and sign the same;
• attach the signed form and a copy of the payment of the lump sum covering costs of the IT archiving and the contribution for the management of the IT system, according to the number of  transmissions sent, to comunitari@pec.organismo-am.it;
• repeat the operations (save for the payment of the lump sum) as described according to the quarterly calendar for transmissions.

3.             The CPC’s obligation

Once the  CPC has received the above listed information, being a party obliged to comply  with anti-money laundering obligations, it must send that information to the Italian Financial Investigation Unit (UIF), according to and for the effects of article  36 of the  Anti-Money Laundering Decree: “the central point of contact, once it has examined the notifications received, and if it considers the same duly grounded in the light of all the elements available to it and the evidence to be gleaned from the data and information held, sends the same to the  FIU, without stating the name of the notifying party”.

According to article  45 of the Anti-Money Laundering Decree:

a) the CPCs (or the EMI/PIs or their branches) inform, on a six-monthly basis, the OAM for the purpose of registration in the competent Register of the authorised entities and financial, the following information:

• name, surname or company name, including the name of the legal representative and the appointed managing person, of the  authorised entities or of the agent and, if assigned, the tax code;
• the address or registered office and, if different, the operating address of the authorised entity or of the agent , with an indication of the city and the relevant post code;
• the express indication of the provision of money remittance services if provided by the authorised entity or by the agent;
• any cessation of the relationship, to be notified within 30 days of the cessation; this may also occur if the point of contact or the reference intermediary ascertain that the practices adopted by their agents and  authorised entities do not conform with the anti-money laundering standards.

b) In order to send the relevant Agents’ data, the CPCs must :

• download the form “Request for registration“;
• complete it in each and every part and sign the same;
• send the signed form to  puntodicontatto@pec.organismo-am.it, attaching a copy of the payment of the lump sum for the costs of the OAM data archiving;
• await confirmation of authorisation from the OAM;
• access the registration function;
• once the registration is competed, access the Private area for community EMI(PIs (available since September 2014) on the OAM  portal;
• send the data relating to the Agents (see example form for sending), following the operating instructions contained in the User Manual;
• pay the contribution for the management of the IT system, according to the number of transmissions sent;
• repeat the last two steps as described in the quarterly calendar of transmissions.

The failure to create a CPC is subject to several sanctions (by the Bank of Italy) according to  art. 62, paragraph 1, of the Anti Money-laundering Decree, including an administrative fine of between Euro 30.000,00 and Euro 5.000.000,00 (or  10% of the overall annual turnover if said amount exceeds Euro  5.000.000,00).

In addition, in case of failure to comply by the Agents or by the POC with the obligations deriving from the provisions applicable to them, the OAM will inform the Authority of the originating State of said breach. If the actions taken by the home member State are inadequate, the OAM informs the Italia Finance Ministry which, having heard the Italian Ministry for Foreign Affairs may prohibit said parties from carrying out further operations in Italy.