Although Directive (EU) 2015/849 (“AMLD4“) was only implemented less than 5 months ago in the Dutch AML Act (Wet ter voorkoming van witwassen en financiering van terrorisme (“Wwft“)) , a new draft bill amending the Wwft was published by the Dutch legislator in December 2018 and opened for feedback from the market. This draft bill sees to implementing the changes to AMLD4 as laid down in Directive (EU) 2018/843, “AMLD5“).
AMLD5 is the first piece of European legislation in which virtual currencies (such as bitcoin, ether, litecoin, etc.) are being laid down. Pursuant to AMLD5, and the draft bill implementing AMLD5 in the Dutch Wwft, two types of innovative service providers, offering exchange services and custodial wallet services in respect of virtual currencies, fall within the scope of the AML/CFT obligations. In our view, the scope should have been even broader than currently envisaged. AMLD5 and the draft bill implementing AMLD5 in the Dutch Wwft seem to be limited to only one type of virtual assets, namely virtual currencies, rather than covering all types of virtual assets including digital tokens. In light of the recent publications of the FATF, EBA and ESMA, we recommended the Dutch legislator to extend the scope to service providers offering the aforementioned services in respect of virtual assets, rather than merely service providers in respect of virtual currencies.
On the other hand, we do question whether the Dutch legislator should introduce a license obligation for these new type of service providers (as currently being proposed in the draft bill implementing AMLD5 in the Wwft) rather than the registration obligation which AMLD5 prescribes.
AMLD5 should be implemented in the Dutch Wwft ultimately on 10 January 2020.
You can read our full response via the following hyperlink (in Dutch only): Response FG Lawyers draft bill implementing AMLD5.
