Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

AN ACT TO PROVIDE FOR OFFENCES OF, AND RELATED TO, MONEY LAUNDERING IN AND OUTSIDE THE STATE; TO GIVE EFFECT TO DIRECTIVE 2005/60/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 26 OCTOBER 2005 ON THE PREVENTION OF THE USE OF THE FINANCIAL SYSTEM FOR THE PURPOSE OF MONEY LAUNDERING AND TERRORIST FINANCING; TO PROVIDE FOR THE REGISTRATION OF PERSONS DIRECTING PRIVATE MEMBERS’ CLUBS; TO PROVIDE FOR THE AMENDMENT OF THE CENTRAL BANK ACT 1942 AND THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961; TO PROVIDE FOR THE CONSEQUENTIAL REPEAL OF CERTAIN PROVISIONS OF THE CRIMINAL JUSTICE ACT 1994; THE CONSEQUENTIAL AMENDMENT OF CERTAIN ENACTMENTS AND THE REVOCATION OF CERTAIN STATUTORY INSTRUMENTS; AND TO PROVIDE FOR RELATED MATTERS.

[5th May, 2010]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1 Preliminary

1. Short title and commencement.

1.— (1) This Act may be cited as the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.

• (2) This Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

• (3) An order under subsection (2) may, in respect of the repeal of the provisions of the Criminal Justice Act 1994 specified in section 4, and the revocation of the statutory instruments specified in Schedule 1 effected by section 4(2), appoint different days for the repeal of different provisions of the Criminal Justice Act 1994 and the revocation of different statutory instruments or different provisions of them.

2. Interpretation.

2.— (1) In this Act—

F1["Data Protection Regulation" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016³⁸ on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);]

F2["Fourth Money Laundering Directive" means Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015² 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;]

F3[…]

F4["Fifth Money Laundering Directive" means Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018¹ 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;]

“Minister” means the Minister for Justice, Equality and Law Reform;

“money laundering” means an offence under Part 2;

F1["personal data" means personal data within the meaning of—

• (i) the Data Protection Act 1988,

• (ii) the Data Protection Regulation, or

• (iii) Part 5 of the Data Protection Act 2018;]

“prescribed” means prescribed by the Minister by regulations made under this Act;

“property” means all real or personal property, whether or not heritable or moveable, and includes money and choses in action and any other intangible or incorporeal property;

“terrorist financing” means an offence under section 13 of the Criminal Justice (Terrorist Offences) Act 2005;

“Third Money Laundering Directive” means Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing², as amended by the following:

• (a) Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC³;

• (b) Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC⁴.

• F5[(2) A word or expression used in this Act and also used in the Fourth Money Laundering Directive has, unless the contrary intention appears, the same meaning in this Act as in that Directive.]

• F4[(3) In this Act a reference to an Appeal Tribunal shall be construed as a reference to the Appeal Tribunal established under section 101A (inserted by section 24 of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021).]

3. Regulations.

3.— (1) The Minister may, after consulting with the Minister for Finance, by regulations provide for any matter referred to in this Act F6[(other than section 106ZC (inserted by the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021))] as prescribed or to be prescribed.

• (2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister F6[(or, in the case of regulations under section 106ZC, the Minister for Finance)] to be necessary or expedient for the purposes of the regulations.

• (3) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.

4. Repeals and revocations.

4.— (1) Sections 31, 32, 32A, 57(1) to (6) and (7)(a), 57A and 58(2) of the Criminal Justice Act 1994 are repealed.

• (2) The statutory instruments specified in column (1) of Schedule 1 are revoked to the extent specified in column (3) of that Schedule.

5. Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas and the expenses incurred by the Minister for Finance in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

PART 2 Money Laundering Offences

6. Interpretation (Part 2).

6.— In this Part—

F7["criminal conduct" means—

• (a) conduct that constitutes an offence,

• (b) conduct occurring in a place outside the State that constitutes an offence under the law of the place and would constitute an offence if it were to occur in the State, or

• (c) conduct occurring in a place outside the State that would constitute an offence under section 5(1) or 6(1) of the Criminal Justice (Corruption Offences) Act 2018 if it were to occur in the State and the person or official, as the case may be, concerned doing the act, or making the omission, concerned in relation to his or her office, employment, position or business is a foreign official within the meaning of that Act;]

“proceeds of criminal conduct” means any property that is derived from or obtained through criminal conduct, whether directly or indirectly, or in whole or in part, and whether that criminal conduct occurs before, on or after the commencement of this Part.

7. Money laundering occurring in State.

7.— (1) A person commits an offence if—

• (a) the person engages in any of the following acts in relation to property that is the proceeds of criminal conduct:

• (i) concealing or disguising the true nature, source, location, disposition, movement or ownership of the property, or any rights relating to the property;

• (ii) converting, transferring, handling, acquiring, possessing or using the property;

• (iii) removing the property from, or bringing the property into, the State,

and

• (b) the person knows or believes (or is reckless as to whether or not) the property is the proceeds of criminal conduct.

• (2) A person who attempts to commit an offence under subsection (1) commits an offence.

• (3) A person who commits an offence under this section is liable—

• (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

• (4) A reference in this section to knowing or believing that property is the proceeds of criminal conduct includes a reference to knowing or believing that the property probably comprises the proceeds of criminal conduct.

• (5) For the purposes of subsections (1) and (2), a person is reckless as to whether or not property is the proceeds of criminal conduct if the person disregards, in relation to property, a risk of such a nature and degree that, considering the circumstances in which the person carries out any act referred to in subsection (1) or (2), the disregard of that risk involves culpability of a high degree.

• (6) For the purposes of subsections (1) and (2), a person handles property if the person—

• (a) receives, or arranges to receive, the property, or

• (b) retains, removes, disposes of or realises the property, or arranges to do any of those things, for the benefit of another person.

• (7) A person does not commit an offence under this section in relation to the doing of any thing in relation to property that is the proceeds of criminal conduct so long as—

• (a) the person does the thing in accordance with a direction, order or authorisation given under Part 3, or

• (b) without prejudice to the generality of paragraph (a), the person is a designated person, within the meaning of Part 4, who makes a report in relation to the property, and does the thing, in accordance with section 42.

8. Money laundering outside State in certain circumstances.

8.— (1) A person who, in a place outside the State, engages in conduct that would, if the conduct occurred in the State, constitute an offence under section 7 commits an offence if any of the following circumstances apply:

• (a) the conduct takes place on board an Irish ship, within the meaning of section 9 of the Mercantile Marine Act 1955,

• (b) the conduct takes place on an aircraft registered in the State,

• (c) the conduct constitutes an offence under the law of that place and the person is—

• (i) an individual who is a citizen of Ireland or ordinarily resident in the State, or

• (ii) a body corporate established under the law of the State or a company registered under the Companies Acts,

• (d) a request for the person’s surrender, for the purpose of trying him or her for an offence in respect of the conduct, has been made under Part II of the Extradition Act 1965 by any country and the request has been finally refused (whether or not as a result of a decision of a court), or

• (e) a F8[relevant arrest warrant] has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of the conduct, and a final determination has been made that—

• (i) the F8[relevant arrest warrant] should not be endorsed for execution in the State under the European Arrest Warrant Act 2003, or

• (ii) the person should not be surrendered to the issuing state.

• (2) A person who commits an offence under this section is liable—

• (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

• (3) A person who has his or her principal residence in the State for the 12 months immediately preceding the commission of an offence under this section is, in a case where subsection (1)(c) applies, taken to be ordinarily resident in the State on the date of the commission of the offence.

• (4) In this section, “F8[relevant arrest warrant]” and “issuing state” have the same meanings as they have in the European Arrest Warrant Act 2003.

9. Attempts, outside State, to commit offence in State.

9.— (1) A person who attempts, in a place outside the State, to commit an offence under section 7(1) is guilty of an offence.

• (2) A person who commits an offence under this section is liable—

• (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

10. Aiding, abetting, counselling or procuring outside State commission of offence in State.

10.— (1) A person who, in a place outside the State, aids, abets, counsels or procures the commission of an offence under section 7 is guilty of an offence.

• (2) A person who commits an offence under this section is liable—

• (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years (or both).

• (3) This section is without prejudice to section 7(1) of the Criminal Law Act 1997.

11. Presumptions and other matters.

11.— (1) In this section “specified conduct” means any of the following acts referred to in section 7(1) (including section 7(1) as applied by section 8 or 9):

• (a) concealing or disguising the true nature, source, location, disposition, movement or ownership of property, or any rights relating to property;

• (b) converting, transferring, handling, acquiring, possessing or using property;

• (c) removing property from, or bringing property into, the State or a place outside the State.

• (2) In proceedings for an offence under section 7, 8 or 9, where an accused has engaged, or attempted to engage, in specified conduct in relation to property that is the proceeds of criminal conduct, in circumstances in which it is reasonable to conclude that the accused—

• (a) knew or believed the property was the proceeds of criminal conduct, or

• (b) was reckless as to whether or not the property was the proceeds of criminal conduct,

the accused is presumed to have so known or believed, or been so reckless, unless the court or jury, as the case may be, is satisfied, having regard to the whole of the evidence, that there is a reasonable doubt that the accused so knew or believed or was so reckless.

• (3) In proceedings for an offence under section 7, 8 or 9, where an accused has engaged in, or attempted to engage in, specified conduct in relation to property in circumstances in which it is reasonable to conclude that the property is the proceeds of criminal conduct, those circumstances are evidence that the property is the proceeds of criminal conduct.

• (4) For the purposes of subsection (3), circumstances in which it is reasonable to conclude that property is the proceeds of criminal conduct include any of the following:

• (a) the value of the property concerned is, it is reasonable to conclude, out of proportion to the income and expenditure of the accused or another person in a case where the accused engaged in the specified conduct concerned on behalf of, or at the request of, the other person;

• (b) the specified conduct concerned involves the actual or purported purchase or sale of goods or services for an amount that is, it is reasonable to conclude, out of proportion to the market value of the goods or services (whether the amount represents an overvaluation or an undervaluation);

• (c) the specified conduct concerned involves one or more transactions using false names;

• (d) the accused has stated that he or she engaged in the specified conduct concerned on behalf of, or at the request of, another person and has not provided information to the Garda Síochána enabling the other person to be identified and located;

• (e) where an accused has concealed or disguised the true nature, source, location, disposition, movement or ownership of the property, or any rights relating to the property, the accused has no reasonable explanation for that concealment or disguise.

• (5) Nothing in subsection (4) limits the circumstances in which it is reasonable to conclude, for the purposes of subsection (3), that property is the proceeds of criminal conduct.

• (6) Nothing in this section prevents subsections (2) and (3) being applied in the same proceedings.

• (7) Subsections (2) to (6) extend to proceedings for an offence under—

• (a) section 10, or

• (b) section 7(1) of the Criminal Law Act 1997 of aiding, abetting, counselling or procuring the commission of an offence under section 7, 8 or 9,

and for that purpose any reference to an accused in subsections (2) to (6) is to be construed as a reference to a person who committed, or is alleged to have committed, the offence concerned.

• (8) In proceedings for an offence under this Part, or an offence under section 7(1) of the Criminal Law Act 1997 referred to in subsection (7)(b), it is not necessary, in order to prove that property is the proceeds of criminal conduct, to establish that—

• (a) a particular offence or a particular class of offence comprising criminal conduct was committed in relation to the property, or

• (b) a particular person committed an offence comprising criminal conduct in relation to the property.

• (9) In proceedings for an offence under this Part, or an offence under section 7(1) of the Criminal Law Act 1997 referred to in subsection (7)(b), it is not a defence for the accused to show that the accused believed the property concerned to be the proceeds of a particular offence comprising criminal conduct when in fact the property was the proceeds of another offence.

12. Location of proceedings relating to offences committed outside State.

12.— Proceedings for an offence under section 8, 9 or 10 may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.

13. Consent of DPP required for proceedings for offences committed outside State.

13.— If a person is charged with an offence under section 8, 9 or 10, no further proceedings in the matter (other than any remand in custody or on bail) may be taken except by, or with the consent of, the Director of Public Prosecutions.

14. Certificate may be evidence in proceedings under this Part.

14.— (1) In any proceedings for an offence under this Part in which it is alleged that property the subject of the offence is the proceeds of criminal conduct occurring in a place outside the State, a certificate—

• (a) purporting to be signed by a lawyer practising in the place, and

• (b) stating that such conduct is an offence in that place,

is evidence of the matters referred to in that certificate, unless the contrary is shown.

• (2) A certificate referred to in subsection (1) is taken to have been signed by the person purporting to have signed it, unless the contrary is shown.

• (3) In a case where a certificate referred to in subsection (1) is written in a language other than the Irish language or the English language, unless the contrary is shown—

• (a) a document purporting to be a translation of that certificate into the Irish language or the English language, as the case may be, and that is certified as correct by a person appearing to be competent to so certify, is taken—

• (i) to be a correct translation of the certificate, and

• (ii) to have been certified by the person purporting to have certified it,

and

• (b) the person is taken to be competent to so certify.

• (4) In any proceedings for an offence under section 8 committed in the circumstances referred to in section 8(1)(c), a certificate purporting to be signed by an officer of the Department of Foreign Affairs and stating that—

• (a) a passport was issued by that Department to a person on a specified date, and

• (b) to the best of the officer’s knowledge and belief, the person has not ceased to be an Irish citizen,

is evidence that the person was an Irish citizen on the date on which the offence is alleged to have been committed, and is taken to have been signed by the person purporting to have signed it, unless the contrary is shown.

• (5) In any proceedings for an offence under section 8 committed in the circumstances referred to in section 8 (1) (d) or (e), a certificate purporting to be signed by the Minister and stating any of the matters referred to in that paragraph is evidence of those matters, and is taken to have been signed by the Minister, unless the contrary is shown.

15. Double jeopardy.

15.— A person who has been acquitted or convicted of an offence in a place outside the State shall not be proceeded against for an offence under section 8, 9 or 10 consisting of the conduct, or substantially the same conduct, that constituted the offence of which the person has been acquitted or convicted.

16. Revenue offence committed outside State.

16.— For the avoidance of doubt, a reference in this Part to an offence under the law of a place outside the State includes a reference to an offence in connection with taxes, duties, customs or exchange regulation.

PART 3 Directions, Orders and Authorisations Relating to Investigations

17. Direction or order not to carry out service or transaction.

17.— (1) A member of the Garda Síochána not below the rank of superintendent may, by notice in writing, direct a person not to carry out any specified service or transaction during the period specified in the direction, not exceeding 7 days, if the member is satisfied that, on the basis of information that the Garda Síochána has obtained or received (whether or not in a report made under Chapter 4 of Part 4), such a direction is reasonably necessary to enable the Garda Síochána to carry out preliminary investigations into whether or not there are reasonable grounds to suspect that the service or transaction would, if it were to proceed, comprise or assist in money laundering or terrorist financing.

• (2) A judge of the District Court may order a person not to carry out any specified service or transaction during the period specified in the order, not exceeding 28 days, if satisfied by information on oath of a member of the Garda Síochána, that—

• (a) there are reasonable grounds to suspect that the service or transaction would, if it were to proceed, comprise or assist in money laundering or terrorist financing, and

• (b) an investigation of a person for that money laundering or terrorist financing is taking place.

• (3) An order may be made, under subsection (2), in relation to a particular service or transaction, on more than one occasion.

• F10[(4) An application for an order under subsection (2)—

• (a) shall be made ex parte and shall be heard otherwise than in public,

and

• (b) shall be made to a judge of the District Court assigned to the district in which the order is proposed to be served.]

• (5) A person who fails to comply with a direction or order under this section commits an offence and is liable—

• (a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months (or both), or

• (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years (or both).

• (6) Any act or omission by a person in compliance with a direction or order under this section shall not be treated, for any purpose, as a breach of any requirement or restriction imposed by any other enactment or rule of law.

18. Notice of direction or order.

18.— (1) As soon as practicable after a direction is given or order is made under section 17, the member of the Garda Síochána who gave the direction or applied for the order shall ensure that any person who the member is aware is affected by the direction or order is given notice, in writing, of the direction or order unless—

• (a) it is not reasonably practicable to ascertain the whereabouts of the person, or

• (b) there are reasonable grounds for believing that disclosure to the person would prejudice the investigation in respect of which the direction or order is given.

• (2) Notwithstanding subsection (1)(b), a member of the Garda Síochána shall give notice, in writing, of a direction or order under this section to any person who is, or appears to be, affected by it as soon as practicable after the Garda Síochána becomes aware that the person is aware that the direction has been given or order has been made.

• (3) Nothing in subsection (1) or (2) requires notice to be given to a person to whom a direction is given or order is addressed under this section.

• (4) A notice given under this section shall include the reasons for the direction or order concerned and advise the person to whom the notice is given of the person’s right to make an application under section 19 or 20.

• (5) The reasons given in the notice need not include details the disclosure of which there are reasonable grounds for believing would prejudice the investigation in respect of which the direction is given or order is made.

19. Revocation of direction or order on application.

19.— (1) At any time while a direction or order is in force under section 17, a judge of the District Court may revoke the direction or order if the judge is satisfied, on the application of a person affected by the direction or order, as the case may be, that the matters referred to in section 17(1) or (2) do not, or no longer, apply.

• (2) Such an application may be made only if notice has been given to the Garda Síochána in accordance with any applicable rules of court.

20. Order in relation to property subject of direction or order.

20.— (1) At any time while a direction or order is in force under section 17, in relation to property, a judge of the District Court may, on application by any person affected by the direction or order concerned, as the case may be, make any order that the judge considers appropriate in relation to any of the property concerned if satisfied that it is necessary to do so for the purpose of enabling the person—

• (a) to discharge the reasonable living and other necessary expenses, including legal expenses in or in relation to legal proceedings, incurred or to be incurred in respect of the person or the person’s dependants, or

• (b) to carry on a business, trade, profession or other occupation to which any of the property relates.

• (2) Such an application may be made only if notice has been given to the Garda Síochána in accordance with any applicable rules of court.

21. Cessation of direction or order on cessation of investigation.

21.— (1) A direction or order under section 17 ceases to have effect on the cessation of an investigation into whether the service or transaction the subject of the direction or order would, if it were to proceed, comprise or assist in money laundering or terrorist financing.

• (2) As soon as practicable after a direction or order under section 17 ceases, as a result of subsection (1), to have effect, a member of the Garda Síochána shall give notice in writing of the fact that the direction or order has ceased to have effect to—

• (a) the person to whom the direction or order has been given, and

• (b) any other person who the member is aware is affected by the direction or order.

22. Suspicious transaction report not to be disclosed.

22.— A report made under Chapter 4 of Part 4 shall not be disclosed, in the course of proceedings under section 17 or 19, to any person other than the judge of the District Court concerned.

23. Authorisation to proceed with act that would otherwise comprise money laundering.

23.— (1) A member of the Garda Síochána not below the rank of superintendent may, by notice in writing, authorise a person to do a thing referred to in section 7(1) if the member is satisfied that the thing is necessary for the purposes of an investigation into an offence.

• (2) The doing of any thing in accordance with an authorisation under this section shall not be treated, for any purpose, as a breach of any requirement or restriction imposed by any other enactment or rule of law.

• (3) Subsection (2) is without prejudice to section 7 (7).

PART 4 Provisions Relating to Finance Services Industry, Professional Service Providers and Others

Chapter 1 Interpretation (Part 4)

24. Definitions.

24.— (1) In this Part—

F11["Article 3(2) authorities" means the authorities designated under Regulation 3(2) of the European Union (Money Laundering and Terrorist Financing) (Use of Financial and Other Information) Regulations 2023;]

“barrister” means a practising barrister;

“beneficial owner” has the meaning assigned to it by sections 26 to 30;

“business relationship”, in relation to a designated person and a customer of the person, means a business, professional or commercial relationship between the person and the customer that the person expects to be ongoing;

F12["business risk assessment" has the meaning given to it by section 30A;]

F13["Capital Requirements Regulation" means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013⁹⁴ on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, as amended by –

• (a) Commission Delegated Regulation (EU) 2015/62 of 10 October 2014⁹⁵ amending Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to the leverage ratio,

• (b) Regulation (EU) 2016/1014 of the European Parliament and of the Council of 8 June 2016⁹⁶ amending Regulation (EU) No 575/2013 as regards exemptions for commodity dealers,

• (c) Commission Delegated Regulation (EU) 2017/2188 of 11 August 2017⁹⁷ amending Regulation (EU) No 575/2013 of the European Parliament and of the Council as regards the waiver on own funds requirements for certain covered bonds,

• (d) Regulation (EU) 2017/2395 of the European Parliament and of the Council of 12 December 2017⁹⁸ amending Regulation (EU) No 575/2013 as regards transitional arrangements for mitigating the impact of the introduction of IFRS 9 on own funds and for the large exposures treatment of certain public sector exposures denominated in the domestic currency of any Member State,

• (e) Regulation (EU) 2017/2401 of the European Parliament and of the Council of 12 December 2017⁹⁹ amending Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms,

• (f) Commission Delegated Regulation (EU) 2018/405 of 21 November 2017¹⁰⁰ correcting certain language versions of Regulation (EU) No 575/2013 of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012,

• (g) Regulation (EU) 2019/630 of the European Parliament and of the Council of 17 April 2019¹⁰¹ amending Regulation (EU) No 575/2013 as regards minimum loss coverage for non-performing exposures,

• (h) Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019¹⁰² amending Regulation (EU) No 575/2013 as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/2012,

• (i) Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019¹⁰³ on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014,

• (j) Regulation (EU) 2020/873 of the European Parliament and of the Council of 24 June 2020¹⁰⁴ amending Regulations (EU) No 575/2013 and (EU) 2019/876 as regards certain adjustments in response to the COVID-19 pandemic,

• (k) Commission Delegated Regulation (EU) 2021/424 of 17 December 2019¹⁰⁵ amending Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to the alternative standardised approach for market risk,

• (l) Regulation (EU) 2021/558 of the European Parliament and of the Council of 31 March 2021¹⁰⁶ amending Regulation (EU) No 575/2013 as regards adjustments to the securitisation framework to support the economic recovery in response to the COVID-19 crisis,

• (m) Commission Implementing Regulation (EU) 2021/1043 of 24 June 2021¹⁰⁷ on the extension of the transitional provisions related to own funds requirements for exposures to central counterparties set out in Regulation (EU) No 575/2013 of the European Parliament and of the Council,

• (n) Regulation (EU) 2022/2036 of the European Parliament and of the Council of 19 October 2022¹⁰⁸ amending Regulation (EU) No. 575/2013 and Directive 2014/59/EU as regards the prudential treatment of global systemically important institutions with a multiple-point-of entry resolution strategy and methods for the indirect subscription of instruments eligible for meeting the minimum requirement for own funds and eligible liabilities,

• (o) Regulation (EU) 2023/2869 of the European Parliament and of the Council of 13 December 2023¹⁰⁹ amending certain Regulations as regards the establishment and functioning of the European single access point,

• (p) Regulation (EU) 2024/1623 of the European Parliament and of the Council of 31 May 2024¹¹⁰ amending Regulation (EU) No 575/2013 as regards requirements for credit risk, credit valuation adjustment risk, operational risk, market risk and the output floor, and

• (q) Commission Delegated Regulation (EU) 2024/2795 of 24 July 2024¹¹¹ amending Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to the date of application of the own funds requirements for market risk;]

F12["collective investment undertaking" means—

• (a) an undertaking for collective investment in transferable securities authorised in accordance with the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011) or otherwise in accordance with the Directive of 2009,

• (b) an alternative investment fund within the meaning of the European Union (Alternative Investment Fund Managers) Regulations 2013 (S.I. No. 257 of 2013),

• (c) a management company authorised in accordance with the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 or otherwise in accordance with the Directive of 2009, or

• (d) an alternative investment fund manager within the meaning of the European Union (Alternative Investment Fund Managers) Regulations 2013;]

“competent authority” has the meaning assigned to it by sections 60 and 61;

F14["correspondent relationship" means—

• (a) the provision of banking services by one bank as the correspondent to another bank as the respondent, including providing a current or other liability account and related services, such as cash management, international funds transfers, cheque clearing, payable-through accounts and foreign exchange services, or

• (b) the relationships between and among credit institutions and financial institutions including where similar services are provided by a correspondent institution to a respondent institution, and including relationships established for securities transactions or F15[funds transfers or relationships established for transactions in crypto-assets or transfers of crypto-assets;]]

“credit institution” means—

• F16[(a) a credit institution within the meaning of point (1) of Article 4(1) of the Capital Requirements Regulation, or]

• (b) An Post in respect of any activity that it carries out, whether as principal or agent, that would render it, or a principal for whom it is an agent, a credit institution as a result of the application of paragraph (a);

F18[…]

F19[“crypto-asset” means a crypto-asset as defined in Article 3(1), point (5), of Regulation (EU) 2023/1114, except where falling within the categories listed in Article 2(2), (3) and (4) of that Regulation or otherwise qualifying as funds; ]

F19[“crypto-asset service provider” means a crypto-asset service provider as defined in Article 3(1), point (15), of Regulation (EU) 2023/1114, where performing one or more crypto-asset services as defined in Article 3(1), point (16), of that Regulation, with the exception of providing advice on crypto-assets as referred to in Article 3(1), point (16)(h), of that Regulation;]

“customer”—

• (a) in relation to an auditor, means—

• (i) a body corporate to which the auditor has been appointed as an auditor, or

• (ii) in the case of an auditor appointed to audit the accounts of an unincorporated body of persons or of an individual, the unincorporated body or the individual,

• (b) in relation to a relevant independent legal professional, includes, in the case of the provision of services by a barrister, a person who is a client of a solicitor seeking advice from the barrister for or on behalf of the client and does not, in that case, include the solicitor, or

• (c) in relation to a trust or company service provider, means a person with whom the trust or company service provider has an arrangement to provide services as such a service provider;

“Department” means the Department of Justice, Equality and Law Reform;

“designated accountancy body” means a prescribed accountancy body, within the meaning of Part 2 of the Companies (Auditing and Accounting) Act 2003;

“designated person” has the meaning assigned to it by section 25;

F11["Directive (EU) 2019/1153" means Directive (EU) 2019/1153 of the European Parliament and of the Council of 20 June 2019¹ laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences, and repealing Council Decision 2000/642/JHA;]

F20[F21["Directive of 2009" means Directive 2009/65/EC of the European Parliament and of the Council of 13 July 200912 , as amended by—

• (a) Directive 2010/78/EU of the European Parliament and of the Council of 24 November 201013,

• (b) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 201114,

• (c) Directive 2013/14/EU of the European Parliament and of the Council of 21 May 201315,

• (d) Directive 2014/91/EU of the European Parliament and of the Council of 23 July 201416,

• (e) Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 201717,

• (f) Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 201918,

• (g) Directive (EU) 2019/2034 of the European Parliament and of the Council of 20 June 201919 , and

• (h) Directive (EU) 2019/2162 of the European Parliament and of the Council of 27 November 201920;]]

“EEA State” means a state that is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993;

F17["Electronic Identification Regulation" means Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014² on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC;]

F20["electronic money" means electronic money within the meaning of the European Communities (Electronic Money) Regulations 2011 (S.I. No. 183 of 2011);]

F22[…]

F11["Europol" means the body established under Article 1(1) of Regulation (EU) 2016/794;]

“external accountant” means a person who by way of business provides accountancy services (other than when providing such services to the employer of the person) whether or not the person holds accountancy qualifications or is a member of a designated accountancy body;

F23["financial institution" means—

• (a) an undertaking that carries out one or more of the activities set out at reference numbers 2 to 12, 14 and 15 of the Schedule to the European Union (Capital Requirements) Regulations 2014 (S.I. No. 158 of 2014) or foreign exchange services, but does not include an undertaking—

• (i) that does not carry out any of the activities set out at those reference numbers other than one or more of the activities set out at reference number 7, and

• (ii) whose only customers (if any) are members of the same group as the undertaking,

• (b) an insurance undertaking within the meaning of Regulation 3 of the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), in so far as it carries out life assurance activities,

• (c) a person, other than a person falling within Regulation 4(1) of the European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No. 375 of 2017), whose regular occupation or business is—

• (i) the provision to other persons, or the performance, of investment services and activities within the meaning of those Regulations, or

• (ii) bidding directly in auctions in accordance with Commission Regulation (EU) No 1031/2010 of 12 November 2010⁵ on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community on behalf of its clients,

• (d) an investment business firm within the meaning of the Investment Intermediaries Act 1995 (other than a non-life insurance intermediary within the meaning of that Act),

• (e) a collective investment undertaking that markets or otherwise offers its units or shares,

• (f) an insurance intermediary within the meaning of the Insurance Mediation Directive (other than a tied insurance intermediary within the meaning of that Directive) that provides life assurance or other investment-related services, or

• (g) An Post, in respect of any activity it carries out, whether as principal or agent—

• (i) that would render it, or a principal for whom it is an agent, a financial institution as a result of the application of any of the foregoing paragraphs,

• (ii) that is set out at reference number 1 in the Schedule to the European Union (Capital Requirements) Regulations 2014, or

• (iii) that would render it, or a principal for whom it is an agent, an investment business firm within the meaning of the Investment Intermediaries Act 1995 (other than a non-life insurance intermediary within the meaning of that Act) F24[if section 2(6) of that Act did not apply,]]

• F25[(gi) a crypto-asset service provider;]

• (h) F18[…]

F11["FIU Ireland" has the meaning assigned to it by section 40A(2);]

F23["group" means a group of undertakings which consists of a parent undertaking, its subsidiaries, and the entities in which the parent undertaking or its subsidiaries hold a participation, as well as undertakings linked to each other by a relationship within the meaning of Article 22 of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013⁶ on the annual financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC;]

F20["high-risk third country" means a jurisdiction identified by the European Commission in accordance with Article 9 of the Fourth Money Laundering Directive;]

“Insurance Mediation Directive” means Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation ⁷;

F22[…]

“Markets in Financial Instruments Directive” means Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC ⁹;

“member”, in relation to a designated accountancy body, means a member, within the meaning of Part 2 of the Companies (Auditing and Accounting) Act 2003, of a designated accountancy body;

“member”, in relation to the Irish Taxation Institute, means a person who is subject to the professional and ethical standards of the Institute, including its investigation and disciplinary procedures, but does not include a person who is admitted to its membership as a student;

F20["monitoring", in relation to a business relationship between a designated person and a customer, means the designated person, on an ongoing basis—

• (a) scrutinising transactions, and the source of wealth or of funds for those transactions, undertaken during the relationship in order to determine if the transactions are consistent with the designated person’s knowledge of—

• (i) the customer,

• (ii) the customer’s business and pattern of transactions, and

• (iii) the customer’s risk profile (as determined under section 30B),

and

• (b) ensuring that documents, data and information on customers are kept up to date in accordance with its internal policies, controls and procedures adopted in accordance with section 54;]

F20["national risk assessment" means the assessment carried out by the State in accordance with paragraph 1 of Article 7 of the Fourth Money Laundering Directive;]

F26["occasional transaction" means, in relation to a customer of a designated person where the designated person does not have a business relationship with the customer, a single transaction, or a series of transactions that are or appear to be linked to each other, and—

• (a) in a case where the designated person concerned is a person referred to in section 25(1)(h), that the amount of money or the monetary value concerned—

• (i) paid to the designated person by the customer, or

• (ii) paid to the customer by the designated person,

is in aggregate not less than €2,000,

• F27[(b) in a case where the transaction concerned consists of a transfer of funds (within the meaning of Regulation (EU) No. 2015/847 of the European Parliament and of the Council of 20 May 2015⁷) that the amount of money to be transferred is in aggregate not less than €1,000,]

• F28[(bb) in a case where the designated person concerned is a person referred to in section 25(1)(i), that the amount concerned—

• (i) paid to the designated person by the customer, or

• (ii) paid to the customer by the designated person,

is in aggregate not less than €10,000, and]

• (c) in a case other than one referred to in paragraphs F27[(a), (b) or (bb)], that the amount or aggregate of amounts concerned is not less than €15,000;]

“payment service” has the same meaning as in the Payment Services Directive;

“Payment Services Directive” means Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC ¹⁰;

“professional service provider” means an auditor, external accountant, tax adviser, relevant independent legal professional or trust or company service provider;

F24["property service provider" means a person who provides a property service within the meaning of the Property Services (Regulation) Act 2011;]

F23["public body" means an FOI body within the meaning of the Freedom of Information Act 2014;]

F22[…]

F23["regulated market" means—

• (a) a regulated market with the meaning of point (21) of Article 4(1) of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014⁸ on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, located within the EEA, or

• (b) a regulated market that subjects companies whose securities are admitted to trading to disclosure obligations which are equivalent to the following:

• (i) disclosure obligations set out in Articles 17 and 19 of Regulation (EU) No. 596/2014 of the European Parliament and of the Council of 16 April 2014⁹ on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC,

• (ii) disclosure obligations consistent with Articles 3, 5, 7, 8, 10, 14 and 16 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003¹⁰ on the prospectuses to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC,

• (iii) disclosure obligations consistent with Articles 4 to 6, 14, 16 to 19 and 30 of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004¹¹ on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, and

• (iv) disclosure requirements consistent with EU legislation made under the provisions mentioned in subparagraphs (i) to (iii);]

F11["Regulation (EU) 2016/794" means Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016² on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA;]

F19[“Regulation (EU) 2023/1114” means Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023⁶ on markets in crypto-assets, and amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937;]

“relevant independent legal professional” means a barrister, solicitor or notary who carries out any of the following services:

• (a) the provision of assistance in the planning or execution of transactions for clients concerning any of the following:

• (i) buying or selling land or business entities;

• (ii) managing the money, securities or other assets of clients;

• (iii) opening or managing bank, savings or securities accounts;

• (iv) organising contributions necessary for the creation, operation or management of companies;

• (v) creating, operating or managing trusts, companies or similar structures or arrangements;

• (b) acting for or on behalf of clients in financial transactions or transactions relating to land;

“relevant professional adviser” means an accountant, auditor or tax adviser who is a member of a designated accountancy body or of the Irish Taxation Institute;

F20["senior management" means an officer or employee with sufficient knowledge of the institution’s money laundering and terrorist financing risk exposure and sufficient seniority to take decisions affecting its risk exposure, and need not, in all cases, be a member of the board of directors;]

“solicitor” means a practising solicitor;

“State competent authority” has the meaning assigned to it by section 62;

“tax adviser” means a person who by way of business provides advice about the tax affairs of other persons;

“transaction” means—

• (a) in relation to a professional service provider, any transaction that is carried out in connection with a customer of the provider and that is—

• (i) in the case of a provider acting as an auditor, the subject of an audit carried out by the provider in respect of the accounts of the customer,

• (ii) in the case of a provider acting as an external accountant or tax adviser, or as a trust or company service provider, the subject of a service carried out by the provider for the customer, or

• (iii) in the case of a provider acting as a relevant independent legal professional, the subject of a service carried out by the professional for the customer of a kind referred to in paragraph (a) or (b) of the definition of “relevant independent legal professional” in this subsection;

and

• (b) in relation to a casino or private members’ club, a transaction, such as the purchase or exchange of tokens or chips, or the placing of a bet, carried out in connection with gambling activities carried out on the premises of the casino or club by a customer of the casino or club;

F20["transferable securities" means transferable securities within the meaning of the European Union (Markets in Financial Instruments) Regulations 2017;]

“trust or company service provider” means any person whose business it is to provide any of the following services:

• (a) forming companies or other bodies corporate;

• (b) acting as a director or secretary of a company under an arrangement with a person other than the company;

• (c) arranging for another person to act as a director or secretary of a company;

• (d) acting, or arranging for a person to act, as a partner of a partnership;

• (e) providing a registered office, business address, correspondence or administrative address or other related services for a body corporate or partnership;

• (f) acting, or arranging for another person to act, as a trustee of a trust;

• (g) acting, or arranging for another person to act, as a nominee shareholder for a person other than a company whose securities are listed on a regulated market.

F18[…]

F18[…]

• (2) The Minister may prescribe a regulated financial market for the purposes of the definition of “regulated market” in subsection (1) only if the Minister is satisfied that the market is in a place other than an EEA State that imposes, on companies whose securities are admitted to trading on the market, disclosure requirements consistent with legislation of the European Communities.

25. Meaning of “designated person”.

25.— (1) In this Part, “designated person” means any person, acting in the State in the course of business carried on by the person in the State, who or that is—

• (a) a credit institution, except as provided by subsection (4),

• (b) a financial institution, except as provided by subsection (4),

• (c) an auditor, external accountant F31[, tax adviser or any other person whose principal business or professional activity is to provide, directly or by means of other persons to which that other person is related, material aid, assistance or advice on tax matters],

• F32[(d) subject to subsection (1A), a relevant independent legal professional,]

• (e) a trust or company service provider,

• F31[(f) a property service provider including a property service provider acting as an intermediary in the letting of immovable property, but only in respect of transactions for which the monthly rent amounts to a total of at least €10,000,]

• (g) a casino,

• (h) a person who effectively directs a private members’ club at which gambling activities are carried on, but only in respect of those gambling activities,

• (i) any person trading in goods, but only in respect of transactions involving payments, to the person F33[or by the person] in cash, of a total of at least F32[€10,000] (whether in one transaction or in a series of transactions that are or appear to be linked to each other), F34[…]

• F36[(ia) F35[…]

• (ib) a person trading or acting as an intermediary in the trade of works of art (including when carried out by an art gallery or an auction house) but only in respect of transactions of a total value of at least €10,000 (whether in one transaction or in a series of transactions that are or appear to be linked to each other),

• (ic) a person storing, trading or acting as an intermediary in the trade of works of art when this is carried out in a free port but only in respect of transactions of a total value of at least €10,000 (whether in one transaction or as a series of transactions that are or appear to be linked to each other), or]

• (j) any other person of a prescribed class.

• F33[(1A) A relevant independent legal professional shall be a designated person only as respects the carrying out of the services specified in the definition of "relevant independent legal professional" in section 24(1).]

• (2) For the purposes of this Part, a person is to be treated as a designated person only in respect of those activities or services that render the person a designated person.

• (3) A reference in this Part to a designated person does not include a reference to any of the following:

• (a) the Minister for Finance;

• (b) the F37[Central Bank of Ireland];

• (c) the National Treasury Management Agency.

• (4) A person is not to be treated as a designated person for the purposes of this Part solely as a result of operating as a credit institution or financial institution, in the course of business, if—

• (a) the annual turnover of the person’s business that is attributable to operating as a credit institution or financial institution is €70,000 (or such other amount as may be prescribed) or less,

• (b) the total of any single transaction, or a series of transactions that are or appear to be linked to each other, in respect of which the person operates as a credit institution or financial institution does not exceed €1,000 (or such other lesser amount as may be prescribed),

• (c) the annual turnover of the person’s business that is attributable to operating as a credit institution or financial institution does not exceed 5 per cent of the business’s total annual turnover,

• (d) the person’s operation as a credit institution or financial institution is directly related and ancillary to the person’s main business activity, and

• (e) the person provides services when operating as a credit institution or financial institution only to persons who are customers in respect of the person’s main business activity, rather than to members of the public in general.

• (5) Subsection (4) does not apply in relation to any prescribed class of person.

• (6) For the avoidance of doubt and without prejudice to the generality of subsection (1)(a) or (b), a credit or financial institution that acts in the State in the course of business carried on by the institution in the State, by means of a branch situated in the State, is a designated person whether or not the institution is incorporated, or the head office of the institution is situated, in a place other than in the State.

• (7) The Minister may prescribe a class of persons for the purposes of subsection (1)(j) only if the Minister is satisfied that any of the business activities engaged in by the class—

• (a) may be used for the purposes of—

• (i) money laundering,

• (ii) terrorist financing, or

• (iii) an offence that corresponds or is similar to money laundering or terrorist financing under the law of a place outside the State,

or

• (b) are of a kind likely to result in members of the class obtaining information on the basis of which they may become aware of, or suspect, the involvement of customers or others in money laundering or terrorist financing.

• (8) The Minister may, in any regulations made under subsection (7) prescribing a class of persons, apply to the class such exemptions from, or modifications to, provisions of this Act as the Minister considers appropriate, having regard to any risk that the business activities engaged in by the class may be used for a purpose referred to in paragraph (a) of that subsection.

• (9) The Minister may prescribe an amount for the purposes of paragraph (a) or (b) of subsection (4), in relation to a person’s business activities as a credit institution or financial institution, only if the Minister is satisfied that, in prescribing the amount, the purposes of that subsection will likely be fulfilled, including that—

• (a) those activities are carried out by the person on a limited basis, and

• (b) there is little risk that those activities may be used for a purpose referred to in subsection (7)(a).

• (10) The Minister may prescribe a class of persons for the purpose of subsection (5) only if the Minister is satisfied that the application of subsection (4) to the class involves an unacceptable risk that the business activities engaged in by the class may be used for a purpose referred to in subsection (7)(a).

26. Beneficial owner in relation to bodies corporate.

F41[26.— In this Part, "beneficial owner", in relation to a body corporate, has the meaning given to it by point (6)(a) of Article 3 of the Fourth Money Laundering Directive.]

27. Beneficial owner in relation to partnerships.

27.— In this Part, “beneficial owner”, in relation to a partnership, means any individual who—

• (a) ultimately is entitled to or controls, whether the entitlement or control is direct or indirect, more than a 25 per cent share of the capital or profits of the partnership or more than 25 per cent of the voting rights in the partnership, or

• (b) otherwise F42[controls] the partnership.

28. Beneficial owner in relation to trusts.

28.— (1) F43[…]

• (2) In this Part, “beneficial owner”, in relation to a trust, means any of the following:

• (a) any individual who is entitled to a vested interest in possession, remainder or reversion, whether or not the interest is defeasible, in F43[…] the capital of the trust property;

• (b) in the case of a trust other than one that is set up or operates entirely for the benefit of individuals referred to in paragraph (a), the class of individuals in whose main interest the trust is set up or operates;

• (c) any individual who has control over F44[the trust;]

• F45[(d) the settlor;

• (e) the trustee;

• (f) the protector.]

• (3) For the purposes of and without prejudice to the generality of subsection (2), an individual who is the beneficial owner of a body corporate that—

• (a) is entitled to a vested interest of the kind referred to in subsection (2)(a), or

• (b) has control over the trust,

is taken to be entitled to the vested interest or to have control over the trust (as the case may be).

• (4) Except as provided by subsection (5), in this section “control”, in relation to a trust, means a power (whether exercisable alone, jointly with another person or with the consent of another person) under the trust instrument concerned or by law to do any of the following:

• (a) dispose of, advance, lend, invest, pay or apply trust property;

• (b) vary the trust;

• (c) add or remove a person as a beneficiary or to or from a class of beneficiaries;

• (d) appoint or remove trustees;

• (e) direct, withhold consent to or veto the exercise of any power referred to in paragraphs (a) to (d).

• (5) For the purposes of the definition of “control” in subsection (4), an individual does not have control solely as a result of the power exercisable collectively at common law to vary or extinguish a trust where the beneficiaries under the trust are at least 18 years of age, have full capacity and (taken together) are absolutely entitled to the property to which the trust applies.

29. Beneficial owner in relation to estates of deceased persons.

29.— In this Part, “beneficial owner”, in relation to an estate of a deceased person in the course of administration, means the executor or administrator of the estate concerned.

30. Other persons who are beneficial owners.

30.— (1) In this Part, “beneficial owner”, in relation to a legal entity or legal arrangement, other than where section 26, 27 or 28, applies, means—

• (a) if the individuals who benefit from the entity or arrangement have been determined, any individual who benefits from F46[…] the property of the entity or arrangement,

• (b) if the individuals who benefit from the entity or arrangement have yet to be determined, the class of such individuals in whose main interest the entity or arrangement is set up or operates, and

• (c) any individual who exercises control over F46[…] the property of the entity F47[or arrangement,]

• F48[(d) any person holding a position, in relation to the legal entity or legal arrangement that is similar or equivalent to the position specified in paragraphs (d) to (f) of section 28(2) in relation to a trust.]