Who can perform virtual currency activities
Author: Stanisław Michałowski - advocate, partner
New regulations of the anti-money laundering law
The amendment of March 30, 2021 of the Law on Prevention of Money Laundering and Financing of Terrorism implemented into the Polish legal order certain EU regulations on cryptocurrencies. According to these regulations, member states are required to ensure that entities that provide exchange services between virtual currencies and traditional fiduciary currencies are required to obtain registration. This is intended to prevent these entities from being used for criminal purposes.
Writing briefly, the Act normalizes two categories of prerequisites for obtaining registration in the virtual currency business register: negative prerequisites (no criminal record as defined in Article 129n) and positive prerequisites (having knowledge or experience related to the virtual currency business).
The condition of a clean criminal record is not unlimited here, as it only applies to the mentioned category of offences (although the category is undoubtedly broad). The Act explains that a natural person cannot conduct activity in the field of virtual currencies if he or she has been legally convicted of: intentional crime against activities of state institutions and local government, against the administration of justice, against credibility of documents, against property, against economic turnover and property interests in civil law transactions, against trading in money and securities, a crime related to financing terrorism, a crime committed with the aim of achieving a financial or personal gain or an intentional fiscal crime. In addition, the above-mentioned individuals must not be partners entrusted with running the affairs of a company, or be authorized to represent a company, or serve as a member of the governing bodies of legal persons or organizational units without legal personality conducting activities in the field of virtual currencies. Importantly, the above-described requirement of a clean criminal record also applies to persons directing the performance of activities related to the conduct of activities in the field of virtual currencies and to the beneficial owner of the entity engaged in such activities.
The legislature has indicated that the premise of having knowledge or experience related to the virtual currencies business is met in case of: completing a training or course covering legal or practical issues related to the business of virtual currencies; or performing, for a period of at least one year, activities related to the business of virtual currencies. It is sufficient to meet one of these two prerequisites, which should be confirmed by appropriate documents.
How should the fulfillment of the above prerequisites be demonstrated? The application for entry in the virtual currency business register shall be accompanied by a statement of the entrepreneur with the following content: "I declare that the data contained in the application are complete and true. I am familiar with the conditions for the performance of activities in the field of virtual currencies referred to in the Act of March 01, 2018 on the prevention of money laundering and terrorist financing (Journal of Laws of 2020, item 971, 875, 1086 and 2320; and of 2021, item 187 and 815). In particular, I declare that the conditions referred to in Article 129n and Article 129o of the said Act are fulfilled.". The person making the statement shall include the following clause: "I am aware of the criminal liability for making a false statement." This clause replaces the instruction of the authority entitled to receive the statement about criminal liability for making a false statement.
An entry in the register is necessary for us, otherwise we are subject to a fine of up to PLN 100,000. On the other hand, if we obtain the entry on the basis of a false statement made intentionally, we may be charged with a criminal offense under Article 233 of the Criminal Code. In addition, we will be refused entry in the register or (if there has already been an entry) we will be struck off the register. How to make sure that we meet these prerequisites? As far as a clean criminal record is concerned, we should verify the National Criminal Register of all persons relevant to our activity. As far as the condition of possessing experience is concerned, it is possible to verify it in some real way (the justification of the bill even contains some guidelines as to the nature of the mentioned experience); as far as possessing knowledge is concerned - it is enough to have just an "appropriate document" confirming completion of training or a course covering legal or practical issues related to the activity in the field of virtual currencies. The Act does not specify in more detail the nature of the said training or course, so a very creative approach is to be expected.