EU Legislation (Information
Accompanying Transfers of Funds) (Jersey) Regulations 2017
1 Interpretation[1]
In these Regulations –
“money or value transfer service provider” means a
person who provides a money or value transfer service within the meaning given
in paragraph 5 in Part 2 of Schedule 2 to the Proceeds of Crime (Jersey)
Law 1999;
“payee” means a person that is the intended final
recipient of transferred funds;
“payer” means a person that is the holder of an account
held with a payment service provider that allows a transfer of funds from the
account or, where there is no account, a person that places an order for a
transfer of funds;
“payment service provider” means a person, being a
person registered under the Banking Business (Jersey)
Law 1991 or who is a virtual asset service provider or a money or value
transfer service provider, when –
(a) the
person is carrying out payment services in or from within Jersey; or
(b) being
a legal person established under Jersey law, the person is carrying out payment
services in any part of the world other than in or from within Jersey;
“Regulation (EU) 2015/847” means Regulation (EU) 2015/847
of the European Parliament and of the Council of 20 May 2015 on
information accompanying transfers of funds and repealing Regulation (EC) No 1781/2006
(OJ L 141, 5.6.2015, p. 1);
“virtual asset” has the meaning given in Part 1 of
Schedule 2 to the Proceeds of Crime (Jersey)
Law 1999;
“virtual asset service provider” has the meaning given
in Part 4 of Schedule 2 to the Proceeds of Crime (Jersey)
Law 1999.
2 Implementation of Regulation (EU) 2015/847
(1) Regulation (EU) 2015/847
has effect in Jersey as if it were an enactment –
(a) to
any extent that it does not otherwise have effect in Jersey; and
(b) subject
to the exceptions, adaptations and modifications specified in the Schedule.
(2) Any reference in the
Schedule to a numbered Article, without more, is a reference to the Article so
numbered of Regulation (EU) 2015/847.
2A Virtual assets[2]
(1) Despite
any other provision under these Regulations, a payment service provider is
exempt from the requirements and application of Regulation (EU) 2015/847,
as it has effect in Jersey under Regulation 2, in respect of a transfer of
virtual assets equivalent to less than EUR 1,000 if the payer and payee
are both virtual asset service providers.
(2) Despite
any other provision under these Regulations, if a payment service provider
considers that there is a higher risk of money laundering in respect of a
transfer of virtual assets, the payment service provider must comply with the Regulation
(EU) 2015/847, as it has effect in Jersey under Regulation 2,
irrespective of the amount transferred, if –
(a) the
payer is a virtual asset service provider and the payee is not a virtual asset
service provider; or
(b) the
payer is not a virtual asset service provider and the payee is a virtual asset
service provider.
3 Offences
(1) A
payer’s payment service provider who contravenes any requirements of
Articles 4, 5, 6, 14, 15(2) or (3), 16 or 21(2) of
Regulation (EU) 2015/847, as those Articles have effect in Jersey by virtue of
Regulation 2, shall be guilty of an offence and liable to imprisonment for
a term of 2 years and to a fine.
(2) A
payee’s payment service provider who contravenes any requirements of
Articles 7, 8, 9, 14, 15(2) or (3), 16 or 21(2) of Regulation (EU) 2015/847, as those Articles have effect in Jersey
by virtue of Regulation 2, shall be guilty of an offence and liable to
imprisonment for a term of 2 years and to a fine.
(3) An
intermediary payment service provider who contravenes any requirements of Articles 10, 11, 12, 14, 15(2) or (3), 16 or 21(2) of
Regulation (EU) 2015/847, as those Articles have effect in Jersey by
virtue of Regulation 2, shall be guilty of an offence and liable to
imprisonment for a term of 2 years and to a fine.
(4) In
deciding whether a person has committed an offence under this Regulation, the
court shall take into account whether the person followed any relevant guidance
that applies to the person and which was at the time issued, adopted or
approved by the Jersey Financial Services Commission under any other enactment.
(5) A
person shall not be guilty of an offence under this Regulation if he or she
took all reasonable steps, and exercised all due diligence, to avoid committing
the offence.
(6) In this Regulation –
“intermediary payment
service provider” means a payment service provider that is neither that
of the payer nor that of the payee and that participates in the execution of
transfers of funds.[3]
4 Criminal liability of
partners, directors and other officers
(1) If
an offence under these Regulations committed by a limited liability
partnership, a separate limited partnership, any other partnership having
separate legal personality or a body corporate is proved to have been committed
with the consent or connivance of –
(a) a
person who is a partner of the partnership, or a director, manager, secretary
or other similar officer of the body corporate; or
(b) any
person purporting to act in any such capacity,
the person is also guilty of the offence and liable in the same
manner as the partnership or body corporate to the penalty provided for that
offence.
(2) If the affairs of a
body corporate are managed by its members, paragraph (1) applies in
relation to acts and defaults of a member in connection with the member’s
functions of management as if he or she were a director of the body corporate.
5 Citation
These Regulations may be cited as the EU Legislation (Information
Accompanying Transfers of Funds) (Jersey) Regulations 2017.
Schedule[4]
(Regulation 2)
EXCEPTIONS, ADAPTATIONS AND MODIFICATIONS TO
PROVISIONS OF Regulation (EU) 2015/847 IN RESPECT
OF ITS EFFECT IN JERSEY
1. Except
where otherwise provided in this Schedule, references in Regulation (EU) 2015/847
to “Member State” and “the Union” shall be read as if
Jersey were itself a Member State, its territory were included within the Union
territory and for the purposes of European Union law were a separate country
from the United Kingdom.
2. Any
reference in Regulation (EU) 2015/847 to an amount of currency expressed
in euro (EUR) shall be construed as also meaning that amount converted into,
and expressed as, an amount of any other currency.
3. In
Article 1, for the words “the Union” there shall be
substituted the word “Jersey”.
4. In
Article 2 –
(a) in paragraph 1,
for the words “the Union” there shall be substituted the word “Jersey”;
(b) in
paragraph 4(b), for the words “a Member State” there shall be substituted
the words “the British Islands”;
(c) in
paragraph 5 –
(i) for
the words “its territory” there shall be substituted the words
“the British Islands”,
(ii) in
subparagraph (a) for the words “Directive (EU) 2015/849” there
shall be substituted the words “the requirements of the Money
Laundering (Jersey) Order 2008 or the Terrorism
(Jersey) Law 2002 or is subject to equivalent requirements under enactments of the United
Kingdom, Guernsey or the Isle of Man”.
5. In
Article 3 –
(a) in
paragraph (1), for the words “means terrorist financing as defined
in Article 1(5) of Directive (EU) 2015/849” there shall be
substituted the words “means an offence referred to in Article 15
or 16 of the Terrorism
(Jersey) Law 2002”;
(b) in
paragraph (2), for the words “means the money laundering activities
referred to in Article 1(3) and (4) of Directive (EU) 2015/849”
there shall be substituted the words “means money laundering as defined
in Article 1(1) of the Proceeds of
Crime (Jersey) Law 1999”;
(c) paragraphs (3)
and (4) shall be omitted;
(ca) in
paragraph (8) after “Article 4 of Directive 2007/64/EC”
there is inserted “or virtual assets”;
(d) after
paragraph (12) there shall be inserted the following
paragraphs –
“(13) ‘British
Islands’ means the United Kingdom, Jersey, Bailiwick of Guernsey and the
Isle of Man;
(14) ‘competent
authority’ means the Jersey Financial Services Commission established by
Article 2 of the Financial
Services Commission (Jersey) Law 1998;
(15) ‘electronic
money’ means electronically (including magnetically) stored monetary
value, as represented by a claim on the issuer, which is issued on receipt of
funds for the purpose of making a payment transaction, and which is accepted by
a person other than the issuer of the electronic money;
(16) ‘payment
transaction’ means an act, initiated by the payer or by the payee, of
placing, transferring or withdrawing funds, irrespective of any underlying
obligations between the payer and the payee.”.
6. In
Article 4, for paragraph 5 there shall be substituted the following
paragraph –
“5. Verification as
referred to in paragraph 4 shall be deemed to have taken place where the payer’s
payment service provider has complied with –
7. In
Article 5, in the heading and in paragraph 1, for the word
“Union” there shall be substituted the words “British
Islands”.
8. In
Article 6, in the heading and in paragraphs 1 and 2, for the word
“Union” there shall be substituted the words “British
Islands”.
9. In
Article 7 –
(a) in
paragraph 2, for the word “Union”, wherever it appears, there
shall be substituted the words “British Islands”;
(b) in
paragraph 3, for the words “Articles 69 and 70 of Directive 2007/64/EC”
there shall be substituted the words “Regulations 36 and 37 of the EU
Legislation (Payment Services – SEPA) (Jersey) Regulations 2015”;
(c) for
paragraph 5 there shall be substituted the following
paragraph –
“5. Verification as
referred to in paragraphs 3 and 4 shall be deemed to have taken place
where the payee’s payment service provider has complied with –
10. In Article 8,
in paragraph 1, for the words “procedures based on the
risk-sensitive basis referred to in Article 13 of Directive (EU) 2015/849”
there shall be substituted the words “the measure referred to in Article 3(5)
of the Money
Laundering (Jersey) Order 2008”.
11. In Article 9,
for the words “whether it is to be reported to the Financial Intelligent
Unit (FIU) in accordance with Directive (EU) 2015/849” there shall
be substituted the words “whether a disclosure is to be made under Article 34D(4)
of the Proceeds of
Crime (Jersey) Law 1999, Article 21(2) of the Money
Laundering (Jersey) Order 2008 or Article 21(4) of the Terrorism
(Jersey) Law 2002”.
12. In Article 11,
for the word “Union”, wherever it appears, there shall be
substituted the words “British Islands”.
13. In Article 13,
for the words “whether it is to be reported to the FIU in accordance with
Directive (EU) 2015/849” there shall be substituted the words
“whether a disclosure is to be made under Article 34D(4) of the Proceeds of
Crime (Jersey) Law 1999, Articles 21(2) of the Money
Laundering (Jersey) Order 2008 or Article 21(4) of the Terrorism
(Jersey) Law 2002”.
14. In Article 14,
the words “, including by means of a central contact point in accordance
with Article 45(9) of Directive (EU) 2015/849, where such a contact
point has been appointed,” shall be omitted.
15. In Article 15 –
(a) in
paragraph 1 –
(i) for
the words “Directive 95/46/EC, as transposed into national law” there
shall be substituted the words “Data
Protection (Jersey) Law 2018”,
(ii) the
second sentence shall be omitted;
(b) in
paragraph 3, for the words “Article 10 of Directive
95/46/EC” there shall be substituted the words “the Data Protection
(Jersey) Law 2018”.
16. In Article 16 –
(a) In
paragraph 1, for the words “five years” there shall be
substituted the words “six years”;
(b) paragraphs 2
and 3 shall be omitted.
17. Articles 17, 18, 19
and 20 shall be omitted.
18. In Article 21
in paragraph 1, the second sentence shall be deleted.
19. In Article 22,
paragraph 2 shall be omitted.
20. Articles 23
to 27 shall be omitted.
21. After
Article 27, the words “This Regulation shall be binding in its
entirety and directly applicable in all Member States.” shall be omitted.