by Andrei Cosma – Managing Associate at SCA Simion & Baciu
In the previous article we analysed one obligation imposed via the new Order of ONJN President no. 370/2021 for the approval of the Instructions on preventing and combating money laundering and terrorist financing in the field of gambling has been published in the Official Gazetter (hereinafter referred to as the AML Instructions), namely the requirements regarding the training of the personnel.
In this article we will briefly analyze another obligation imposed by the AML Instructions, namely the obligation to keep documents. This obligation could generate at least an interesting issue, which may go unnoticed in a general reading of this new normative act adopted by ONJN.
Specifically, art. 25 para. (3) of the AML Instructions stipulates that “the preservation of documents and records must be carried out, in compliance with the provisions of art. 21 of Law no. 129/2019, in a form accepted in court proceedings, and must be provided to the competent authorities upon request“.
The content of the obligation seems extremely clear, the documents and records obtained following the application of the AML Instructions must be kept in a form accepted in court proceedings. But what does “accepted in court” actually mean?
To try to identify a possible answer to this question, we refer firstly to the Code of Civil Procedure (“CPC”) because it sets the common law framework for a variety of legal proceedings / litigation (and not necessarily only civil litigation).
New ONJN instructions in the AML field
Article 150 CPC provides the following regime in relation to the documents that are used in court: “(1) Each copy of the statement of claims shall be accompanied by copies of the documents that the party intends to use in the process. (2) The copies shall be certified by the party for conformity with the original. ”
The above text of the law imposes a well-known formality in the practice of the courts, namely that the documents filed in court (i.e. in a court proceeding) cannot be mere copies, but copies certified for conformity with the original (the name enshrined in practice being certified true copies).
By applying these rules in the context of the AML Instructions, it may be considered that documents obtained by gambling organizers should be kept as certified true copies (because otherwise there is a risk of not being admitted in court proceedings). For the purposes of this interpretation, for example, copies of the identity documents kept by the operators as a result of applying the KYC process required by the AML Instructions should be kept as certified true copies, not just plain copies.
Such a formality may create difficulties in certain cases because in order to make this attestation of compliance/conformity with the original, the operator in question must theoretically have analyzed / researched the original of that document.
Of course, it is possible for ONJN / ONPCSB to interpret this obligation in a more flexible way, so it would therefore be welcome for the authorities to clarify this matter as soon as possible.
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