On February 25, 2021, the Sejm passed the "Act amending the Act on counteracting money laundering and terrorist financing and certain other acts," the main purpose of which is to implement "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." The Act introduces significant changes to the "Act on counteracting money laundering and terrorism financing" (hereinafter referred to as the AML Act). It is particularly worth mentioning here the expansion of the catalogue of obligated institutions to include entities operating in the field of trade or intermediation in trade in works of art or the storage of works of art, as well as entities whose core business is the provision of services consisting of, among others, preparing tax returns or keeping tax books. It should also be pointed out that institutions must report any doubts regarding the veracity of another entity's data disclosed in the CRBR or that additional fines should be introduced in the event of failure to update data in the CRBR.
The extensive list of changes has also affected entities providing services related to virtual currencies. It's worth recalling at the outset that such entities are already classified as obligated institutions under the current legal framework, provided they conduct business in the exchange of virtual currencies and means of payment, exchange between virtual currencies, act as intermediaries in this exchange, and maintain so-called "cryptocurrency wallets," which, in light of Article 1, Section 2, Item 17, Letter e of the AML Act, constitute an account defined as "a set of identification data maintained in electronic form, enabling authorized persons to use virtual currency units, including conducting exchange transactions."
Importantly, for entities operating in the cryptocurrency industry, the above-mentioned list of services, which entails the status of an obligated institution, has not been expanded. This means that issuers of cryptocurrencies or utility tokens will still not be eligible for this category unless they are involved in their trading or storage. It is worth noting, however, that during the drafting phase of the bill, the Polish Financial Supervision Authority proposed extending the scope of regulations to these entities. This may mean that the topic will resurface in the near future, particularly in light of the planned regulation of the cryptocurrency market by the European Union.
Once these changes come into effect, the obligation to apply financial security measures will also apply to occasional transactions involving virtual currencies equivalent to €1,000 or more. Currently, the AML Act links this obligation to transfers of funds exceeding the equivalent of €1,000. Therefore, this requirement previously applied only to transfers of fiat currencies.
The main change, however, concerns the recognition of the above-mentioned virtual currency activity as a regulated activity within the meaning of the Act of 6 March 2018 – Entrepreneurs' Law and the implementation of the obligation to obtain an entry in the register of virtual currency activities, maintained by the minister responsible for public finances. This can be considered a first step aimed at entrepreneurs conducting this type of activity who are having difficulty opening a bank account.
Activity in this area will be available to individuals, legal entities, and entities without legal personality, provided that these individuals, partners, or members of their governing bodies have not been convicted of any of the offenses specified in Article 129n of the AML Act. These include fiscal offenses, offenses committed for financial gain, and intentional offenses against, among other things, the administration of justice, document credibility, property, economic transactions, and property interests in civil law transactions.
The regulations also require that individuals conducting the activity in question possess appropriate knowledge and experience. This requirement will be met in the following cases:
- completing a training or course covering legal or practical issues related to virtual currency activities, or
- performing activities related to virtual currency activities for a period of at least one year.
In both cases, fulfillment of any of the requirements must be confirmed by appropriate documents. The legislator did not specify precisely what these "courses" or "trainings" should be, and it is unlikely that a specific list of entities authorized to conduct such training will be established. However, it should be expected that the authorities will approach this requirement restrictively and will require that such training be conducted by entities recognized by the regulator, demonstrating experience in conducting regulated activities, and guaranteeing the reliability and quality of the knowledge acquired.
It's a good thing that the register will be maintained electronically, reminiscent of the Central Register of Registers (CRBR). If the register of virtual currency activities is equally transparent and easy to read, the application procedure itself shouldn't pose a significant problem.
The application for entry in the register will include the following information:
- name and surname or name (company);
- the number in the register of entrepreneurs in the National Court Register, if such a number has been assigned, and the tax identification number (NIP);
- indication of the services provided in the field of virtual currencies,
- qualified electronic signature, trusted signature or personal signature of the applicant.
Finally, it's worth noting that the regulations regarding the register of virtual currency activities will come into force within six months of the act's promulgation. Entities currently operating on the market will therefore have the necessary time to familiarize themselves with the adopted regulations and prepare the required application for entry in the register.
