Proceeds
of Crime (Amendment No. 6) (Jersey)
Law 2022
Adopted
by the States 31st March 2022
Sanctioned
by Order of Her Majesty in Council 8th June 2022
Registered by the Royal Court 17th June 2022
Coming into force in accordance with Article 2
THE STATES, subject to the sanction of Her Most
Excellent Majesty in Council, have adopted the following Law –
1 Proceeds of Crime (Jersey)
Law 1999 amended
(1) This
Article amends the Proceeds of
Crime (Jersey) Law 1999.
(2) For
Article 36 (financial services business) there is substituted –
“36 Financial
services business
(1) Schedule 2
has effect to specify the activities and operations
which when conducted as a business constitute financial services business for
the purposes of this Law.
(2) The
Commission may issue guidelines on the interpretation of any provision in
Schedule 2, including any expression used in Schedule 2.
(3) Regard
must be given to any guidelines issued under paragraph (2) concerning the
interpretation of any expression in Schedule 2.
(4) Guidelines
issued under paragraph (2) must be published by the Commission in a manner
which the Commission considers will bring it to the attention of those most
likely to be affected by it.
(5) In
interpreting an expression used in Schedule 2, account must be taken of
the meaning, if any, given to that expression in –
(a) the FATF International Standards
on Combating Money Laundering and the Financing of Terrorism &
Proliferation – the FATF Recommendations as updated from time to time; or
(b) the FATF Methodology for Assessing Technical Compliance with the
FATF Recommendations and Effective of AML/CFT Systems, as updated from time to
time.
(6) The
States may, by Regulations amend Schedule 2 by adding, deleting,
substituting or varying the description of any operation or activity.
(7) The
Minister for External Relations and Financial Services may, by Order –
(a) designate any operation
or activity as a low risk financial services business;
(b) provide conditions
relating to the designation of any operation or activity as a low risk
financial services business;
(c) apply, disapply or modify
a provision of this Law or any other enactment in relation to the low risk
financial services business, including to provide for notification obligations
on persons conducting any operation or activity designated as a low risk
financial services business under paragraph (a).”.
(3) After
Article 44 (Rules of Court) there is inserted –
“44A Consequential and transitional
provisions
in connection with commencement of Proceeds of Crime (Amendment No. 6)
(Jersey) Law 2022
The
States may, by Regulations –
(a) make any consequential
and transitional provisions;
(b) make amendments to this
Law or any other enactment,
that appear necessary or
expedient in connection with the coming into force of
the Proceeds of Crime (Amendment No. 6) (Jersey) Law 2022.”.
(4) For
Schedule 2 there is substituted –
“fund” means any scheme or arrangement which pools capital raised
and operates on the principle of risk spreading; the funds being raised from
offers to investors being members of the public, or investors restricted by
criteria such as the number of offers, minimum subscription, or the investors’
net worth, level of financial sophistication, risk tolerance or other such
criteria;
“securities” means any of the following –
(a) shares,
stock, debentures, debenture stock, loan stock or bonds;
(b) warrants
entitling the holders to subscribe for any securities specified in sub-paragraph (a);
(c) units
in a fund;
(d) life
assurance policies;
(e) other
securities of any description;
“virtual asset” means a digital
representation of value that can be digitally traded, or transferred and can be
used for payment or investment purposes.
PART 2
FINANCIAL INSTITUTIONS
2 Acceptance of deposits
and other repayable funds from public
(1) Acceptance
of deposits and other repayable funds from the public.
This includes private banking.
(2) Sub-paragraph (1)
includes deposit-taking business within the meaning given under Article 3(1),
(2) and (3) of the Banking Business
(Jersey) Law 1991.
(1) Lending.
(2) Sub-paragraph (1) includes inter alia:
consumer credit, mortgage credit, factoring, with or without recourse; and
finance of commercial transactions (including forfeiting).
(1) Financial
Leasing.
(2) Sub-paragraph (1)
does not extend to financial leasing arrangements in relation to consumer
products.
5 Money or value
transfer services
(1) Money
or value transfer services. This does not apply to any natural or legal person or
arrangement that provides financial institutions solely with message or other
support systems for transmitting funds.
(2) Sub-paragraph (1)
includes money service business within the meaning given under Article 2(9)(b),
(c) and (d) of the Financial
Services (Jersey) Law 1998.
Issuing and managing means of payment (such as credit and debit
cards, cheques, traveller’s cheques, money orders and bankers’ drafts, and
electronic money).
7 Financial guarantees
and commitments
Financial guarantees and commitments.
(a) money market instruments
(such as cheques, bills, certificates of deposit, derivatives);
(b) foreign exchange;
(c) exchange, interest rate
and index instruments;
(d) transferable securities; or
(e) futures and options
(financial and commodity).
(2) Sub-paragraph (1)
includes investment business within the meaning given under Article 2(2)(a)
and (b) of the Financial
Services (Jersey) Law 1998.
(3) In
this paragraph “trading” includes acting as a principal or agent.
9 Fund and security
services activities
(1) Participation
in securities issues and the provision of financial services related to such
issues.
(2) Sub-paragraph (1)
includes the following fund and security services activities –
(a) fund or issuer of
securities; and
(b) service providers to a
fund or issuer of securities, including acting as manager, administrator,
designated service provider, registrar, investment manager, investment adviser,
distributor, subscription agent, redemption agent, premium receiving agent,
policy proceeds paying agent, purchase agent, repurchase agent, trustee,
custodian, depositary, manager of a managed entity or a member of a partnership
(other than a limited partner).
10 Advice on capital
structure, industrial strategy etc.
The business of providing advice to undertakings on capital
structure, industrial strategy and related questions and advice as well as
services relating to mergers and the purchase of undertakings.
(1) Individual
and collective portfolio management.
(2) Sub-paragraph (1)
includes –
(a) the business of providing
portfolio management including the business of providing advice;
(b) investment business within
the meaning given under Article 2(2) of the Financial
Services (Jersey) Law 1998;
(c) fund and security
services activities –
(i) fund or issuer of securities, and
(ii) service providers to a
fund or issuer of securities, including acting as manager, administrator,
designated service provider, registrar, investment manager, investment adviser,
distributor, subscription agent, redemption agent, premium receiving agent,
policy proceeds paying agent, purchase agent, repurchase agent, trustee,
custodian, depositary, manager of a managed entity or a member of a partnership
(other than a limited partner).
12 Safe keeping and
administration
(1) Safekeeping
and administration of cash or liquid securities on behalf of other persons.
(2) Sub-paragraph (1)
includes the business of safekeeping and administration of securities in
relation to a fund, issuer of securities or other
person.
Safe custody services in relation to other persons.
14 Investing,
administering or managing funds or money
Investing, administering or managing funds or money on behalf of
other persons where such activities are not otherwise listed in this Part.
15 Underwriting and
placement of life assurance and insurance
(1) Underwriting
and placement of life insurance and other investment related insurance. This
applies both to insurance undertakings and to insurance intermediaries (agents
and brokers).
(2) Sub-paragraph (1)
includes –
(1) Money
and currency changing.
(2) Sub-paragraph (1)
includes money service business within the meaning under Article 2(9)(a)
of the Financial
Services (Jersey) Law 1998 as a bureau de change.
(1) Money
broking to third parties.
(2) Sub-paragraph (1)
includes the business of providing the service of money broking to third
parties.
PART 3
DESIGNATED NON-FINANCIAL BUSINESSES AND PROFESSIONS
18 Casinos
(1) Casinos
(including internet and ship-based casinos).
(2) Sub-paragraph (1)
includes the business of operating a casino.
(3) For
the purposes of this paragraph, a person operates a casino if the person
provides a service that –
(a) is a gambling service,
within the meaning of Article 2 of the Gambling
(Jersey) Law 2012; and
(b) consists of giving people
an opportunity to participate in one or more casino games.
(4) For
the purposes of this paragraph –
“casino” means an arrangement whereby people are given an
opportunity to participate in one or more casino games;
“casino game” means a game of chance –
(a) that involves playing or
staking against a bank (whether described as a “bank” and whether
or not controlled or administered by a player); and
(b) in which the chances are
not equally favourable to all participants.
(1) Real
estate agents.
(2) Sub-paragraph (1)
includes the business of providing estate agency services to, for or on behalf
of third parties concerning the buying or selling of –
(a) freehold (including
flying freehold) or leasehold property (including commercial and agricultural
property); or
(b) shares
the ownership of which entitles the owner to occupy immovable property,
whether the property is situated in Jersey or overseas.
(1) Dealers
in precious metals, precious stones and other goods.
(2) Sub-paragraph (1)
includes the business of providing services as a high value dealer.
(3) For
the purposes of this paragraph, a “high value dealer” is a person who trades in
goods (including precious metals and precious stones) and receives in respect
of any transaction (whether executed in a single operation, or in several
operations which appear to be linked) payment of at least €15,000 (Euros) in
total.
(4) For
the purposes of this paragraph –
“payment” means payment in or by means of –
(a) cash, including notes,
coins, travellers’ cheques, and bearer negotiable instruments; and
(b) any virtual asset.
(1) Lawyers,
notaries, other independent legal professionals.
(2) Sub-paragraph (1) refers to sole
practitioners, partners or employed professionals within professional firms. It
is not meant to refer to “internal” professionals that are employees of other
types of businesses, nor to professionals working for government agencies, who
may already be subject to AML/CFT measures.
(3) Sub-paragraph (1)
includes the business of providing services by an independent legal
professional.
(4) In
this paragraph, “independent legal professional” means a person (including a
lawyer or a notary) who provides legal or notarial services to third parties
when participating in financial, or immovable property, transactions concerning
any of the following –
(a) the buying and selling of
immovable property or business entities;
(b) the buying and selling of
shares the ownership of which entitles the owner to occupy immovable property;
(c) the managing of client
money, securities or other assets;
(d) the opening or management
of bank, savings or securities accounts;
(e) the organisation of
contributions necessary for the creation, operation or management of companies;
or
(f) the creation, operation
or management of trusts, companies or similar structures.
(1) Accountants.
(2) Sub-paragraph (1) refers to sole
practitioners, partners or employed professionals within professional firms. It
is not meant to refer to “internal” professionals that are employees of other
types of businesses, nor to professionals working for government agencies, who
may already be subject to AML/CFT measures.
(3) Sub-paragraph (1)
includes the business of providing any of the following –
(a) external accountancy services;
(b) advice about the tax affairs of another person;
(c) audit services;
(d) insolvency services;
(e) advice to third parties when
participating in financial, or immovable property, transactions concerning any
of the following –
(i) the buying and selling of immovable
property or business entities,
(ii) the buying and selling
of shares the ownership of which entitles the owner to occupy immovable
property,
(iii) the managing of client
money, securities or other assets,
(iv) the opening or management
of bank, savings or securities accounts,
(v) the organisation of contributions necessary
for the creation, operation or management of companies, or
(vi) the creation, operation
or management of trusts, companies or similar structures.
“external accountancy services” means accountancy services provided
to third parties and excludes services provided by accountants employed by
public authorities or by undertakings which do not provide accountancy services
to third parties;
“audit services” are audit services provided pursuant to any
function under any enactment;
“insolvency services” are services provided by a person if that
person accepts appointment as –
(a) a liquidator under
Chapter 4 of Part 21 of the Companies
(Jersey) Law 1991;
(b) an insolvency manager
appointed under Part 5 of the Limited
Liability Partnerships (Jersey) Law 2017 as
that Law has effect in its application to insolvent limited liability
partnerships under the Limited
Liability Partnerships (Dissolution and Winding Up) (Jersey) Regulations 2018; or
(c) as agent of an official
functionary appointed in the case of a remise de biens, cession, or désastre.
23 Trust and company service
providers
(a) Acting as a formation
agent of legal persons or arrangements.
(b) Clause (a) includes –
(i) the business of providing services to or
in respect of types of legal person or arrangement other than those described
in Article 2(5)(a) and (b) of the Financial
Services (Jersey) Law 1998, in the course of
which services are provided that are similar or equivalent to those described
in Article 2(4) of that Law as if Article 2(4) referred to that type
of legal person or arrangement, and
(ii) trust company business
under the Financial
Services (Jersey) Law 1998 where the person
carries on a business that involves the provision of –
(A) company administration
services,
(B) services to foundations,
or
(C) services to partnerships,
and in the course of providing those services,
the person provides the service of acting as a company formation agent, a
partnership formation agent or a foundation formation agent.
(c) For the purposes of this sub-paragraph,
a person acts as a company formation agent, a partnership formation agent or a
foundation formation agent if the person arranges for the registration,
formation or incorporation, or the sale, transfer or disposal, of companies,
partnerships or foundations.
(d) In this sub-paragraph, a reference
to a company, partnership or foundation is a reference to a company,
partnership or foundation wherever incorporated or otherwise established; and
to any similar or equivalent structure or arrangement, regardless of its name.
(2) Director, secretary, partner, etc.
(a) Acting as, or arranging
for another person to act as, a director or secretary of a company, a partner
of a partnership, or a similar position in relation to other legal persons or
arrangements.
(b) Clause (a) includes
a person who carries on trust company business under the Financial
Services (Jersey) Law 1998 where the person
carrying on the trust company carries on a business that involves the provision
of company administration services, the provision of services to foundations,
or the provision of services to partnerships and, in the course of providing
those services, the person provides the service of –
(i) acting as, or fulfilling the function of,
or arranging for another person to act as or fulfil the function of, director
or alternate director of a company,
(ii) acting as, or fulfilling
the function of, or arranging for another person to act as, or fulfil the
function of a partner of a partnership,
(iii) acting as, or fulfilling
the function of, or arranging for another person to act as or fulfil the
function of, a member of the council of a foundation, or
(iv) acting as, or arranging
for another person to act as, secretary, alternate, assistant or deputy
secretary of a company or a limited liability partnership.
(c) In this sub-paragraph, a
reference to a company, foundation or partnership is a reference to a company,
partnership or foundation wherever incorporated or otherwise established; and
to any similar or equivalent structure or arrangement, regardless of its name.
(3) Registered office, addresses, etc.
(a) Providing a registered
office, business address or accommodation, correspondence or administrative address
for a company, a partnership or any other legal person or arrangement.
(b) Clause (a) includes
a person who provides trust company business under the Financial
Services (Jersey) Law 1998 where the person carries
on a business that involves the provision of company administration services,
trustee or fiduciary services, services to foundations, or services to
partnerships and, in the course of providing those services, the person
provides –
(i) a registered office or business address
for a company, a partnership or a foundation,
(ii) an accommodation,
correspondence or administrative address for a company, a partnership or a
foundation or for any other person.
(c) In this sub-paragraph a
reference to a company, trust, partnership or foundation is a reference to –
(i) a company, trust, partnership or
foundation wherever incorporated or otherwise established, and
(ii) any similar or
equivalent structure or arrangement, regardless of it name.
(4) Trustee of an express trust or equivalent
(a) Acting as, or arranging
for another person to act as, a trustee of an express trust or performing the
equivalent function for another form of legal arrangement.
(b) Clause (a) includes
a person who carries on trust company business under the Financial
Services (Jersey) Law 1998 where the person
carries on a business that involves the provision of trustee or fiduciary
services and, in the course of providing those services, the person provides
the service of acting as or fulfilling or arranging for another person to act
as or fulfil the function of trustee of an express trust.
(c) In this sub-paragraph, a
reference to a trust is a reference to a trust wherever established and to any
similar or equivalent structure or arrangement, regardless of its name.
(d) In this sub-paragraph “express
trust” has the meaning given to that expression by Article 1(1) of the Financial
Services (Jersey) Law 1998.
(a) Acting as, or arranging
for another person to act as, a nominee shareholder for another person.
(b) Clause (a) includes trust
company business under the Financial
Services (Jersey) Law 1998 where the person
carries on a business that involves the provision of company administration
services, services to foundations or services to partnerships and, in the
course of those services, the person provides the service of acting as or
fulfilling or arranging for another person to act as shareholder or unitholder
as a nominee for another person.
(c) In this sub-paragraph, a
reference to a company, foundation or partnership is a reference to a company, foundation
or partnership wherever incorporated or otherwise established; and to any
similar or equivalent structure or arrangement regardless of its name.
PART 4
ViRTUAL ASSET SERVICE PROVIDER
24 Virtual asset service provider
(1) Virtual
asset service provider.
(2) Sub-paragraph (1)
includes a natural or legal person or arrangement that carries on the business
of conducting one or more of the following activities or operations to, for or
on behalf of another natural or legal person or arrangement –
(a) exchange between virtual
assets and fiat currencies,
(b) exchange between one or
more forms of virtual assets,
(c) transfer of virtual
assets,
(d) safekeeping or administration
of virtual assets or instruments enabling control over virtual assets,
(e) participation in and
provision of financial services related to an issuer’s offer and or sale of a
virtual asset.
(3) In
this paragraph “transfer”, in relation virtual assets, means to conduct a
transaction on behalf of another natural or legal person or arrangement that
moves a virtual asset from one virtual asset address or account to another.
PART 5
EXPRESS TRUSTS
25 Express trusts
(1) Except
as otherwise provided in this Schedule, acting as trustee of an express trust.
(2) In
sub-paragraph (1), “express trust” has the same meaning as is given to
that expression by Article 1(1) of the Financial Services
(Jersey) Law 1998.”.
2 Citation and commencement
This Law may be cited as
the Proceeds of Crime (Amendment No. 6) (Jersey) Law 2022 and comes into
force on a day to be specified by the Minister for External Relations and
Financial Services by Order.