Proceeds of Crime (Amendment No. 6) (Jersey) Law 2022

Proceeds of Crime (Amendment N o. 6) (Jersey) Law 2022 Contents Article 1 Proceeds of Crime (Jersey) Law 1999 amended . 3 2 Citation and commencement . 14 Proceeds of Crime (Amendment N o. 6) (Jersey) Law 2022 A LAW to amend the Proceeds of Crime (Jersey) Law 1999 . 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 I nternational 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 – “SCHEDULE 2 (Article 36) FINANCIAL SERVICES BUSINESS PART 1 PRELIMINARY 1 Interpretation In this Schedule – “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. T his 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 . 3 Lending ( 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) . 4 Financial leasing ( 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 . 6 Means of payment 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. 8 Trading ( 1 ) Trading in – ( 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). ( 3 ) Sub-paragraph (1) includes investment business within the meaning given under Article 2(2) of the Financial Services (Jersey) Law 1998 . 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. 11 Portfolio management ( 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. 13 Safe custody services 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 – ( a ) long-term business within the meaning given under Article 1(1) of the Insurance Business (Jersey) Law 1996 ; and ( b ) investment business within the meaning given by Article 2(2)(a) and (b) of the Financial Services (Jersey) Law 1998 . 16 Money and currency ( 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. 17 Money broking ( 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. 19 Real estate agents ( 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. 20 High value dealers ( 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. 21 Lawyers, etc. ( 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. 22 Accountants ( 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. ( 3 ) In this paragraph – “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 ( 1 ) Formation agent ( 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 . ( 5 ) Nominee shareholder ( 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.