New ONJN instructions in the AML field – What do they entail in practice? (Part III)          

by Geanina Oprița, Associate și Andrei Cosma, Managing Associate

Continuing the series of articles through which we intend to provide a practical review of the provisions of the 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 (hereinafter the AML Instructions), we will analyze the obligation of gambling operators to apply the know your client measures in relation to their partners that are legal entities.

According to the AML Instructions, the gambling operator has the obligation to apply the know your client measures both in relation to the participants in the games of chance, namely the natural persons customers participating in the games of chance, as well as with its partners, the legal entities that provide the operator with services or products (hereinafter the B2B partners).

Regarding the category of B2B partners and the type of services or products provided, in respect to which this obligation of gambling operators subsists, the AML Instructions do not stipulate any conditions or criteria by which their scope is restricted. On the contrary, in order to emphasize the extended framework envisaged by the National Gambling Office at the time of issuing the Instructions, it is expressly stated that this obligation also includes B2B partners who are entities without legal personality.

Therefore, taking into consideration the provisions of the AML Instructions, the obligation of gambling operators lies with respect to any B2B partner and independently of the type of services or products provided. Thus, in this category can be included both specific services, which are provided by B2B partners exclusively on the basis of a Class 2 license granted by the National Office for Gambling, and those concerning generic products or services, such as space leases for the operator’s locations or the provision of various services for which it is not necessary to obtain a Class 2 license by the B2B partner.

New ONJN instructions in the AML field

As per article 19 of the AML Instructions, in order to determine the risk profile of the B2B partners, the gambling operator must obtain a series of information (for example, the name of the B2B partner, its legal form, the type and nature of the activity carried out, information regarding the beneficial owner, etc.). Of course, the enumeration provided for in this article represents the minimum standard of diligence that the gambling operator must apply, but there is no restriction that limits the operator from requesting additional information to the above, considered appropriate in relation to activity carried out.

The gambling operator has the obligation to apply the know your client measures: (i) when establishing a business relationship with the B2B partners or (ii) when performing occasional transactions with them. For defining these terms, the AML Instructions refer to Law no. 129/2019 for preventing and combating money laundering and terrorist financing, as well as for amending and supplementing some normative acts (hereinafter Law no. 129/2019).

By reference to article 2 letter i) of Law no. 129/2019, business relationship means the professional relationship related to the activities carried out by the gambling operator which, at the time of establishing contact, is considered to be of a certain duration.

Likewise, to represent an occasional transaction, within the meaning of the AML Instructions, article 13 para. (1) letter b) of Law no. 129/2019 provides that it must represent the value of at least the equivalent in RON of EUR 15,000, regardless of whether the transaction is carried out through a single operation or through several operations that have a connection between them, respectively to constitute a transfer of funds, amounting to over EUR 1,000.

According to article 3 point 9 of Regulation (EU) 2015/847 on information accompanying transfers of funds and repealing Regulation (EC) No 1781/2006, transfer of funds means any transaction at least partially carried out by electronic means on behalf of a payer through a payment service provider, with a view to making funds available to a payee through a payment service provider, irrespective of whether the payer and the payee are the same person and irrespective of whether the payment service provider of the payer and that of the payee are one and the same.

In conclusion, in light of the AML Instructions, gambling operators must pay increased attention not only to the relationships with natural persons participating in the games of chance, but also with respect to B2B partners, being equally established the importance of applying know your client measures in respect to them.