07 Sep Impact of the “Create and Grow” Law on the Spanish AML legal framework

In the context of the EU NextGeneration Plans, the Spanish Recovery, Transformation and Resilience Plan was approved by the Council of Ministers on 27 April 2021. The Plan was prepared in compliance with Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Mechanism.

One of the «lever policies» included in the Plan is the «Modernisation and digitisation of the industrial fabric and SMEs, recovery of tourism and promotion of an entrepreneurial Spain», for which an ambitious programme of investments and structural reforms is envisaged through the establishment of an appropriate legal framework to boost the creation of companies and foster their growth through regulatory improvement, the elimination of obstacles to economic activities, the reduction of commercial default and financial support for business growth.

The objective of the “Create and Grow” Law is to provide this legal framework to promote business creation and growth in an agile and flexible manner. However, the Law has been also used as an opportunity to introduce some reforms to Spanish anti-money laundering regulations which may have gone unnoticed and which are worth recalling below:

• Persons engaged in financial activities on an occasional or very limited basis may be excluded by regulation where there is a low risk of money laundering or terrorist financing. Gambling activities and persons referred to in paragraph 1(h) of Article 2 of the AML Law who have as a low risk of money laundering and terrorist financing may also be excluded in whole or in part.
• The identity of the customer is accredited by means of the qualified electronic signature regulated in Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC. In this case, it shall not be necessary to obtain a copy of the document, although it shall be compulsory to keep the identification data justifying the validity of the procedure. In other cases, where the electronic signature used does not meet the requirements of a qualified electronic signature, it will still be necessary to obtain a copy of the identification document within one month.
• The regulation of the protection of personal data that must be used by the internal bodies of each obliged entity for the purposes of complying with the regulations on the prevention of money laundering is completed and detailed.