Declarations of movements of means of payment in the field of prevention of money laundering and the financing of terrorism

In the era of digitalization and virtual money, anonymous payment methods movements continue to represent a serious threat to the prevention of money laundering and the financing of terrorism. This is corroborated by successive studies carried out both internationally by the Financial Action Task Force (FATF) and its regional organizations; as well as at the level of the European Union by the European Commission itself, which in its Supranational Risk Analysis points out the high risk presented by cash movements at the border above certain thresholds; as well as at the national level by the Commission for the Prevention of Money Laundering and Monetary Offenses, who in its National Risk Analysis of Money Laundering and the Financing of Terrorism has indicated that, despite the decrease in cash as a form of payment, it persists a very high risk of using it to launder money and that its special characteristics – anonymity, easy transport or lack of traceability – make it an ideal means for financing terrorism.

To confront these threats, different initiatives have been taken at international, European Union and national levels.

At the international level, the FATF approved Forty Recommendations in 1990 to combat money laundering, the financing of terrorism and other threats related to the integrity of the international financial system, recommendations that have been reviewed in 1996, 2001, 2012 and 2022. The Recommendation 32 is the one that since 1990 has referred to the "transport of cash" and, since then, has been recommending that States establish a series of control measures for the cross-border physical transport of bearer means of payment. The current wording of the recommendations suggests that States require a prior declaration of cash transportation, regulate the mechanisms for the detection of those movements carried out without said declaration and establish effective, proportional and dissuasive sanctions in the event that the established regulation is not complied with.

At the level of the European Union, Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls on the entry or exit of cash from the Community established the regulation of cash transportation control mechanisms. This first European regulation has been modified by successive Regulations, which affect the need to control the cross-border movement of payment methods. The last of them, Regulation (EU) 2018/1672, of the European Parliament and of the Council, of October 23, 2018, relating to controls on the entry and exit of cash from the Union and by which the Regulation is repealed ( EC) No. 1889/2005, establishes new obligations for all Member States and allows, as its ninth recital indicates, that Member States can establish, in their respective national legal systems, additional internal controls.

At the national level, there have been numerous standards adopted to prevent money laundering, both legal and regulatory.

At a legal level, it is worth highlighting Law 40/1979, of December 10, on the legal regime for exchange control; Law 19/1993, of December 28, on certain measures to prevent money laundering; Law 19/2003, of July 4, on the legal regime of capital movements and economic transactions abroad and on certain measures to prevent money laundering; as well as the current Law 10/2010, of April 28, on the prevention of money laundering and the financing of terrorism, which has been recently modified by Royal Decree-Law 7/2021, of April 27, of transposition of European Union directives on competition matters, prevention of money laundering, credit institutions, telecommunications, tax measures, prevention and repair of environmental damage, posting of workers in the provision of transnational services and consumer protection, with the purpose of adapting the Spanish regulatory framework to Regulation (EU) 2018/1672, of October 23.

At a regulatory level, it is worth remembering, first of all, the Regulation of Law 19/1993, of December 28, on certain measures for the prevention of money laundering, approved by Royal Decree 925/1995, of June 9, which was modified by Royal Decree 54/2005, of January 21, which modifies the Regulation of Law 19/1993, of December 28, on certain measures for the prevention of money laundering, approved by Royal Decree 925/ 1995, of June 9, and other regulations for the banking, financial and insurance system; In furtherance of the above and in matters of prior declarations of means of payment, Order EHA/1439/2006, of May 3, was issued, regulating the declaration of movements of means of payment in the field of prevention of money laundering. .

Secondly, Royal Decree 304/2014, of May 5, which approves the Regulation of Law 10/2010, of April 28, on the prevention of money laundering and the financing of terrorism, which repealed Royal Decree 925/1995, but left in force some of the orders that developed it, to the extent that they were not contrary to what was established therein, among them Order EHA/1439/2006, of May 3, regulating of the declaration of movements of means of payment in the field of prevention of money laundering. The entry into force of Regulation (EU) 2018/1672, of the European Parliament and of the Council, of October 23, 2018, makes it necessary to adapt the Spanish regulatory framework to the new information requirements demanded in European regulations and, therefore Therefore, a new order is approved to regulate the declarations of means of payment to replace the one that has been in force until now.

In this sense, article 1 of the order establishes its object and scope of application, referring to the models, criteria and form of declaration that will be applied to those who carry out the movements of means of payment provided for in the new wording of article 34.4 of the Law. 10/2010, April 28.

Articles 2 and 3 establish the different types of payment movements subject to prior declaration, as well as the declaration models applicable to each of them. As a novelty, the creation of the S-2 model for the declaration of movements of unaccompanied means of payment in the case of departure or entry into national territory to or from a Member State of the European Union and for movements within the unaccompanied national territory. The S-1 model is maintained for the declaration of movements of means of payment, when they are carried by a natural person, either within the national territory, or in case of exit or entry into national territory to or from a Member State. of the European Union. For their part, the rest of the movements subject to declaration will require the completion and presentation of the models approved by Commission Implementing Regulation (EU) 2021/776, of May 11, 2021, which establishes the models of certain forms, as well as the technical standards for the effective exchange of information under Regulation (EU) 2018/1672 of the European Parliament and of the Council, of 23 October 2018, on controls of the entry or exit of Union cash. This order assigns the name model E-1 (for accompanied movements) or model E-2 (for unaccompanied movements) to these models.

Articles 4 and 5 regulate, respectively, the requirements for completing and presenting the declaration models. In both cases, the possibility of doing so is included, either in person or by electronic means, meeting certain requirements.

Articles 6, 7, 8, 9 and 10 contemplate the particular requirements that are required to present the different types of declaration depending on the movement in question.

Article 11 includes the possibility that, in certain cases, registered credit institutions may complete the declarations submitted by their clients, although distinguishing between cases of departure from the national territory and movements through national territory of means of payment. .

In article 12, relating to the intervention of means of payment, the minimum survival is established, the model of the intervention document is established and the destination of the means of payment intervened is developed.

Finally, the order is completed with certain information that must be provided to travelers (article 13), references to the systematic communication of operations (article 14) or the obligation of administrative collaboration in this area (article 15).

In the procedure for preparing this order, the provisions of Law 50/1997, of November 27, of the Government, have been taken into account, so that reports have been received from the State Attorney's Office, the Ministry of Justice, the Ministry of Foreign Affairs and Cooperation, of the Ministry of Territorial Policy, of the Ministry of Finance and Public Function, of the Ministry of Transport, Mobility and Urban Agenda, of the Ministry of the Presidency, Relations with the Cortes and Democratic Memory, of the Ministry of Consumption, Ministry of Interior, Spanish Data Protection Agency and the Technical General Secretariat of the Ministry of Economic Affairs and Digital Transformation.

Likewise, the principles of good regulation set out in article 129 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, have been taken into consideration.

As regards the principles of necessity and effectiveness, the approval of this order implies the adaptation of the Spanish legal system to the law of the European Union. Furthermore, the instrument used is the one enabled by article 34.4 of Law 10/2010 and the second additional provision of Royal Decree 304/2014 of May 5, which approves the Regulation of Law 10/2010, of 28 of May, on the prevention of money laundering and the financing of terrorism, of April 28, which allows for agile and rapid adaptation to regulations that are already directly applicable.

Regarding the principle of proportionality, this ministerial order establishes the appropriate requirements for the movement of cash in a harmonized manner for all Member States of the European Union, and the national obligations already in force, provided for in Law 10/2010, are maintained. , April 28.

In relation to the principle of efficiency, this ministerial order does not impose unnecessary administrative burdens, and its development has occurred with the greatest speed.

In order to guarantee the principle of legal certainty, this order clarifies, in accordance with national and European Union regulations, the management procedures and declaration models relating to the movements of means of payment, intra-community, extra-community and national.

Likewise, the processing of the rule guarantees the principle of transparency, and its preparation has complied with the procedures of prior consultation and public hearing and information contemplated in article 133 of Law 39/2015, of October 1, and in the Article 26 of Law 50/1997, of November 27, of the Government.

The approval of the S-1 and S-2 models is carried out under the authorization of the head of the Ministry of Economic Affairs and Digital Transformation established in article 34.4.b) of Law 10/2010, of April 28 . Both models are incorporated as annexes I and II, respectively.

The authorization to issue this order is found in article 34.4 of Law 10/2010, of April 28, which enables the head of the Ministry of Economic Affairs and Digital Transformation to regulate both the payment methods declaration models ( letter b) as the form and place to fulfill the obligation to declare means of payment (last paragraph); and in the second final provision of the Regulation of Law 10/2010, of April 28, which enables the head of the Ministry of Economic Affairs and Digital Transformation to develop the regulation of the intervention of means of payment.

In its virtue, with the prior approval of the head of the Ministry of Finance and Public Function, in agreement with the Council of State, I have:

Article 1. Object and scope of application.

The purpose of this order is to determine the models, criteria and form of declaration that will be applicable to those who, acting on their own behalf or on behalf of a third party, carry out the movements of means of payment provided for in article 34 of Law 10/2010, of 28 of April, on the prevention of money laundering and the financing of terrorism.

Article 2. Modalities for movements of means of payment subject to prior declaration.

1. Movements to or from States that are not part of the European Union:

a) Movements of entry or exit into national territory of means of payment, carried by a natural person, coming from or destined for a State that is not part of the European Union, provided for in letter a) of article 34.1 of Law 10/ 2010, April 28.

b) Movements of entry or exit into national territory of unaccompanied means of payment coming from or destined for a State that is not part of the European Union, provided for in article 34.2 of Law 10/2010, of April 28.

2. Movements to or from Member States of the European Union:

a) Movements of entry or exit into national territory of means of payment, carried by a natural person, coming from or destined for a State that is part of the European Union, provided for in letter a) of article 34.1 of Law 10/2010 , April 28.

b) Movements of entry or exit into national territory of unaccompanied means of payment coming from or destined for a State that is part of the European Union, provided for in article 34.2 of Law 10/2010, of April 28.

3. Movements through national territory of means of payment, accompanied or not, provided for in letter b) of article 34.1 of Law 10/2010, of April 28.

Article 3. Declaration models.

1. To comply with the declaration obligation established in article 2.1.a), it is required to complete and present the model established in Annex I, part 1 of Commission Implementing Regulation (EU) 2021/776 of May 11, 2021. establishing the models of certain forms, as well as the technical standards for the effective exchange of information under Regulation (EU) 2018/1672 of the European Parliament and of the Council, of 23 October 2018, on controls of cash entering or leaving the Union. This declaration model will be called model E-1.

2. To comply with the declaration obligation established in articles 2.2.a) and 2.3 in the case of accompanied movements through national territory, it is required to complete and present the S-1 form, which is approved by this order and incorporated as an annex. YO.

3. To comply with the declaration obligation established in article 2.1.b), it is required to complete and present the model established in Annex I, part 2 of Commission Implementing Regulation (EU) 2021/776, of May 11. of 2021. This model declaration will be called model E-2.

4. To comply with the declaration obligation established in article 2.2.b) and 2.3 in the case of unaccompanied movements through national territory, the S-2 form must be completed and presented, which is approved by this order and incorporated as annex II.

5. These declaration models may be obtained in the offices of the bodies with powers in matters of Customs and Special Taxes of the State Tax Administration Agency (hereinafter, Tax Agency) and in the Economy and Finance Delegations. The aforementioned models will also be available through the Web pages of the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses (https://www.sepblac.es), of the Tax Agency (https://sede. agencytributaria.gob.es) and the Public Treasury (https://www.tesoro.es).

6. The declaration model, regardless of the type of movement carried out, will be valid to carry out a single transport operation, with the exceptions established in article 9.3.

Article 4. Completion of the declaration models.

1. The declaration models will be completed on printed paper or by electronic means, following the instructions that appear in the declaration model itself or in the electronic headquarters of the Tax Agency.

2. Completing the declaration model is not equivalent to its presentation.

Article 5. Presentation of the declaration models.

1. The declaration model, once fully completed, may be presented in person or by electronic means, prior to the movement of the means of payment, in accordance with the requirements established in this article.

2. Both in the cases of presentation of the declaration in person or electronically, when the veracity of the means of payment accompanied by the Customs Services at the time of entry or exit from the national territory has not been verified, the mere declaration It will not prove to the Administration or third parties the effective movement of the means of payment.

3. The presentation in person must be done:

a) Before the Customs Services of the Special Delegations, the Delegations of the Tax Agency or the Customs and Special Tax Administrations integrated into them (hereinafter, Customs Services).

b) In the case of movements through national territory of means of payment, also in credit institutions, in accordance with the provisions of article 11.

The Customs Services or credit institutions, after verifying the identity of the declarant, that the declaration has been fully completed and, where appropriate, verifying the veracity of the declared data and the means of payment it covers, will proceed to validate it with the signature of the declaration and with express indication of the date of presentation.

The copy of the interested party will be returned to him and must be exhibited by the declarant and accompany the bearer as proof of the presentation of the declaration.

4. Anyone who has completed the declaration model by electronic means may choose to electronically present the declaration at the electronic headquarters of the State Tax Administration Agency using the legally recognized identification, authentication and electronic signature systems.

The system will present the validated declaration on the screen with a secure verification code, indicating the date and time of presentation. The declaration must accompany the bearer as proof of its presentation, with the Secure Verification Code granted by the computer system constituting proof of this.

5. Regardless of the place and form of presentation, the declaration will be displayed without prior request to the permanent Customs Services of the border post and when required by Customs Services other than the above and the Security Forces and Bodies.

6. The declaration data received by the Customs Services must be sent electronically to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses within a period of fifteen days from the date of its presentation.

Article 6. Place and form of presentation of the declaration in the event of departure or entry into Spanish territory of means of payment carried by a natural person destined for or coming from a State that is not part of the European Union.

1. The declaration model that must be completed in these cases is model E-1.

2. In the event of departure or entry into national territory of means of payment for an amount equal to or greater than 10,000 euros or its equivalent in foreign currency per person and movement, the bearer will present the declaration of the means of payment, without the need for a requirement, before the Customs Services of the Tax Agency, prior to any inspection activity of the Administration.

Article 7. Place and form of presentation of the declaration in the event of departure or entry into national territory of means of payment carried by a natural person to or from a Member State of the European Union.

1. The declaration model that must be completed in these cases is the S-1 model.

2. In the event that the exit or entry into national territory of means of payment for an amount equal to or greater than 10,000 euros or its equivalent in foreign currency per person and movement, is carried out through a border crossing where Customs Services exist, The bearer will proceed in the manner provided for in articles 5 and 6.

3. In the event that the exit or entry into national territory of means of payment for an amount equal to or greater than 10,000 euros or its equivalent in foreign currency per person and movement is carried out through a border crossing where there are no Customs Services, The bearer must present the declaration, prior to the movement, electronically or in person.

The validly presented declaration will accompany the bearer along with the means of payment, for display and verification if required by the Customs Services or the Security Forces and Corps.

Article 8. Place and form of presentation of the declaration in case of departure or entry into national territory of unaccompanied means of payment.

1. The declaration models that must be completed in these cases will be models S-2 or E-2, as appropriate.

2. In the event of departure from the national territory of unaccompanied means of payment, the sender or his representative will present the declaration in person before the Customs Services or by electronic means, within the period of thirty days prior to the unaccompanied movement. .

3. In the event of entry into national territory of unaccompanied means of payment, the recipient or his representative will present the declaration, in person before the Customs Services or by electronic means, within the period of thirty days prior to the movement. unaccompanied.

Article 9. Place and form of presentation of the declaration in case of movements through national territory.

1. The declaration models that must be completed in these cases will be model S-1, in the case of accompanied movements, or S-2, in the case of unaccompanied movements.

2. Declarations of movements through national territory of means of payment for an amount equal to or greater than 100,000 euros or its equivalent in foreign currency may be presented in person or by electronic means in accordance with the provisions of article 5.

3. When a movement of means of payment through national territory that must be declared is preceded, or is followed, by another movement of means of payment that is also subject to prior declaration, and the data that must be declared do not change, they will apply. the following special rules:

a) In the event that a movement through national territory precedes the departure from Spain of means of payment destined for a State that is part of the European Union, both movements may be covered by a single S-1 or S-2 model. , as applicable, which will be presented in accordance with the provisions for outbound movement through national territory in articles 5, 7, 8 and, where applicable, 11.

b) In the event that a movement through national territory is preceded by an entry into Spain of means of payment originating in a State that is part of the European Union, both movements may be covered by a single S-1 or S- model. 2, as applicable, which will be presented in accordance with the provisions for entry into Spain in articles 5, 7 and 8.

c) In the event that a movement through national territory precedes the departure from Spain of means of payment destined for a State that is not part of the European Union, in the case of accompanied means of payment, the movement through national territory must be covered by an S-1 model and the outbound movement must be covered by an E-1 model and, if it involves unaccompanied means of payment, the movement through national territory must be covered by an S-2 model and the movement of output must be covered by an E-2 model.

d) In the event that a movement through national territory is preceded by an entry into Spain of means of payment originating in a State that is not part of the European Union, both movements may be covered by a single E-1 or E model. -2, as appropriate.

In the cases referred to in letters a) to d), when the means of payment are carried by a natural person, throughout the movement they must be accompanied by the appropriate duly completed declaration and be transported by the person designated as bearer.

The declaration will be displayed without prior request before the permanent Customs Services of the border post and when required by Customs Services other than the above and the Security Forces and Bodies.

Article 10. Permanent customs.

The Customs and Special Taxes Department of the Tax Agency will establish the list of border crossings enabled with permanent Customs Services and the offices or additional points for receiving the declarations referred to in this order. This list will be available through the Tax Agency's website (https://sede.agenciatributaria.gob.es).

Article 11. Presentation of statements at credit institutions.

1. In cases of departure from the national territory of means of payment provided for in article 7, the S-1 form may be presented to credit institutions when the movement has its origin, at least in part, in the account owned by the declarant.

2. In the cases of movements through national territory of accompanied means of payment provided for in article 9, the S-1 form may be presented to credit institutions when the means of payment are subject to charge or credit, at least partially, in an account owned by the client in the entity.

3. In both cases, the credit institution, after verifying that the declaration has been completed in full, will complete it with an express indication of the date of receipt and will return it to the interested party, sending it via standardized computer support to the Executive Service of the Credit Commission. Prevention of Money Laundering and Monetary Offenses the information contained in the declaration as part of the monthly communication of operations.

Article 12. Intervention of payment methods.

1. The provisional intervention of all the means of payment subject to the movement will be carried out by the customs or police officials acting in the cases provided for in article 35.2 of Law 10/2010, of April 28. Without prejudice to the above, the acting authority, taking into account the circumstances of the case, may agree to non-intervention of a maximum of 1,000 euros per person and movement as a survival minimum.

2. The payment method intervention report will conform to the model in Annex III of this order, and must be immediately sent to the Executive Service and the Secretariat of the Commission for the Prevention of Money Laundering and Monetary Offenses.

3. The destination of the seized payment methods will be as follows:

a) Those described in article 34.3 a) of Law 10/2010 will be entered directly or by transfer into the accounts opened in the name of the Commission for the Prevention of Money Laundering and Monetary Offenses at the Bank of Spain. For these purposes, the provisions of article 35.4 of Law 10/2010, of April 28, on the prevention of money laundering and the financing of terrorism, will be observed when the means of payment intervened is a currency for which the Commission for the Prevention of Money Laundering and Monetary Offenses does not have an account at the Bank of Spain.

b) Those described in article 34.3 b) and c) of Law 10/2010 will be sent to the Bank of Spain for safekeeping under the terms agreed upon with the Commission for the Prevention of Money Laundering and Monetary Offenses.

c) Those described in article 34.3 d) of Law 10/2010 will be sent to the Bank of Spain for safekeeping under the terms agreed upon with the Commission for the Prevention of Money Laundering and Monetary Offenses.

The competent authority that seized them must bag and seal them in the presence of the bearer of the means of payment, or in the case of unaccompanied means of payment in the presence of their sender or recipient. The seal cannot be lifted without the presence of the person on whom the intervention was carried out, unless there is a duly justified cause.

When delivery to the interested party or representative of the means of payment described in article 34.3 corresponds. d) of Law 10/2010, of April 28, these will be delivered in the same way that they were deposited in the Bank of Spain.

Article 13. Information to travelers.

The Customs and Special Taxes Department of the Tax Agency will establish, in the places where travelers access circuits provided for customs declaration, expressly or tacitly, the information that allows travelers to know the obligation to present a declaration in the terms established in current regulations.

Article 14. Systematic communication of operations.

1. The obligated subjects listed in article 2.1 of Law 10/2010, of April 28, on the prevention of money laundering and the financing of terrorism, will report monthly to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Infractions any operations carried out during the previous month in which they involve movements of means of payment subject to mandatory declaration in accordance with article 20 of Law 10/2010, of April 28.

2. In the event that the bearer of the means of payment, being obliged to do so, does not present or display the duly completed declaration, the obligated subjects will indicate this circumstance in their communication to the Executive Service of the Commission.

3. The communication obligation established in this section is understood without prejudice to the remaining duties imposed on the subjects bound by the regulations on the prevention of money laundering and the financing of terrorism, especially the duty of analysis and communication of the operations that , due to their nature, may be particularly linked to money laundering or the financing of terrorism.

Article 15. Administrative collaboration.

1. Any authority or official who, in the exercise of their powers, discovers a breach of the provisions of this order will inform the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses of said situation.

2. The information obtained must be sent by electronic means to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses, which will be in charge of its centralization.

In accordance with the provisions of article 94.4 of Law 58/2003, of December 17, General Tax, the Tax Agency will have access to said information for the exercise of its powers.

3. The information related to seizures made due to non-compliance with the provisions of this order will be centralized in the Secretariat of the Commission for the Prevention of Money Laundering and Monetary Offenses. In accordance with the provisions of article 94.4 of Law 58/2003, of December 17, General Tax, the Tax Agency will have access to said information for the exercise of its powers. Likewise, the Secretariat of the Commission, in compliance with the duty of collaboration and in accordance with the provisions of articles 4 of Organic Law 2/1986, of March 13, on Security Forces and Corps, 36 of Law 10/ 2010, of April 28, and 7 of Organic Law 7/2021, of May 26, will respond to requests for information made by the competent authorities provided for in the aforementioned article 7 of Organic Law 7/2021, of May 26. , in the cases and in the terms provided therein.

Single derogatory provision. Regulatory repeal.

Order EHA/1439/2006, of May 3, regulating the declaration of movements of means of payment in the field of prevention of money laundering, is repealed.

First final provision. Competence title.

This order is issued under the provisions of article 149.1.6.ª, 11.ª and 13.ª of the Spanish Constitution, which attributes to the State the powers in matters of commercial legislation, bases of credit management and bases and coordination of the general planning of economic activity, respectively.

Second final provision. Empowerment of the Commission for the Prevention of Money Laundering and Monetary Offenses.

The Commission for the Prevention of Money Laundering and Monetary Offenses, through its Standing Committee, may issue service instructions for the application of this order.

Third final provision. Entry into force.

This order will come into force twenty days after its publication in the "Official State Gazette."

Madrid, November 29, 2022. The Minister of Economic Affairs and Digital Transformation, Nadia Calviño Santamaría.