Money laundering; filing a suspicious activity report
If there are facts that suggest that assets of the transaction originate from criminal acts or are related to terrorist financing, one is obliged to submit a SAR.
As a rule, the transaction must be suspended (for the time being).
The purpose of the Act on the Tracing of Profits from Serious Crimes - the Money Laundering Act (GwG) for short - is to trace criminal assets originating from serious crimes in monetary transactions. To this end, it is necessary for the legal economic system to take precautionary measures. This also applies to measures to prevent the financing of terrorism.
A central element here is the filing of suspicious activity reports.
Section 6 of the Money Laundering Act (§ 43 to § 45) regulates when, how and where you must report circumstances where facts indicate a connection with money laundering or terrorist financing.
There need not be any suspicious facts as would be required for filing a criminal complaint. Rather, it is necessary to examine whether the facts are unusual and/or conspicuous from the point of view of general experience and professional experience knowledge, and whether the possibility of money laundering or terrorist financing is suggested or may be inferred.
The same applies if the contracting party has not disclosed whether there is a beneficial owner.
Important: The duty to report suspicions applies equally to cash and non-cash transactions and irrespective of the value of the asset or the amount of the transaction (in the case of dealers in goods, there is no privileged treatment as in the case of risk management (Section 4 (5) AMLA) and due diligence obligations (Section 10 (6a) AMLA)).
The obligation to report exists irrespective of the value of the transaction (in the case of goods traders, no privilege in this respect as in the case of risk management (Section 4 (5) AMLA) and due diligence obligations (Section 10 (6a) AMLA)), the type of asset involved (not only in the case of cash transactions!) and the method of payment (no restriction to cash payments in the case of goods traders!). You must immediately send a suspicious activity report to the "Financial Intelligence Unit" (FIU for short) of the General Directorate of Customs as soon as one of the following indications exists:
- The asset involved in a business transaction, brokerage or deal originates from a criminal act that could constitute a predicate offense to money laundering,
- A business transaction, deal, or asset is related to terrorist financing; or
- The contracting party does not fulfill its disclosure obligation under Section 11 (6) sentence 3 AMLA (whether it is acting on behalf of a beneficial owner).
Suspicious circumstances can be in particular:
- The type and amount of the transaction or the origin of the assets do not match the customer and his or her presumed economic circumstances.
- The customer avoids personal contact as far as possible.
- The customer demands anonymity or tries to conceal his true identity.
- The customer cannot present an ID or passport and cannot explain this in a comprehensible way.
- You have doubts about the authenticity of the documents presented.
- The customer evades your inquiries and/or provides inaccurate or incomprehensible information.
- The customer withdraws his contract offer after learning that further research is required.
- The thresholds of 2,000 euros in cash in precious metals trading (such as gold, silver and platinum), 10,000 euros in cash and non-cash in trading in art objects and 10,000 euros in cash in other goods trading are obviously undercut in order to avoid identification.
- The information on the identity of the contracting party or beneficial owner or the payment modalities is corrected several times.
- The payment obligation is fulfilled by third parties ("straw man transaction").
- Fair market value and sales value of a property diverge significantly/striking leeway in purchase price negotiations.
- In the case of real estate: several changes of ownership in series, each at an increasing price.
- The buyer has no knowledge about an object/no interest in properties of the object
Suspicious activity reports pursuant to Sections 43 et seq. GwG are to be submitted to the FIU in electronic form via the application program "goAML" (see under "Online Procedure"), which the FIU makes available to obligated parties as a reporting portal. A prerequisite for submitting a SAR is a one-time registration. Registration is possible independently of a SAR (and will be mandatory from 01.01.2024) and should be done in advance in order to be able to act immediately in case of suspicion.
The form template for this can be found on the Internet under "Forms".
Reports by fax are only possible in very limited exceptional cases, especially in the event of system malfunctions or if you are submitting a SAR for the very first time. You will find all the information you need on submitting SARs and registering them under "Further links".
Consequences of the messages
I. Initially: No execution of the transaction
After a SAR has been submitted, the underlying transaction (= transaction within the meaning of Section 1 (5) AMLA) may not be carried out initially, unless such a postponement of the transaction would impede the investigation of a criminal offense. Once a report has been sent, a transaction related to it may not be carried out before
- the FIU or the public prosecutor's office have agreed to release the transaction
- the third business day has elapsed after the obligor sent the SAR without a prohibition by the FIU or prosecutor's office. Saturdays are not considered as working days for the calculation. Note: Even if no prohibition has been issued by the FIU or the public prosecutor's office, you still remain fully responsible for the content of the decision to conclude the transaction or to refuse to conclude the transaction!
Important: You must not inform your contractual partner, the client of the transaction or other third parties that you have submitted a SAR (Section 47 (1) No. 1 AMLA)!
II. Release from Liability (Section 48 AMLA)
If a SAR or criminal complaint in connection with money laundering or terrorist financing proves to be unfounded in terms of its content, you cannot be held liable for it (Section 48 AMLA). This does not apply to facts that are proven to have been falsely reported due to gross negligence or intent.
III Protection of Reporting Employees (Section 49 (4) AMLA)
If your employees submit a SAR or if you submit a SAR as an employee of an obliged party, this must not result in any disadvantages for the existing employment relationship.
You must send the SAR to the FIU without delay as soon as one of the indications listed under "Prerequisites" is available.
With the help of the "goAML" portal originating from the United Nations (UN), analysts at the FIU can assess correlations with other data from comparable cases more quickly and identify new money laundering or terrorist financing strategies at an earlier stage. As a result, you can expect to have results in the so-called deadline cases, where your intended transactions are stopped first, sooner than before. This way, if your suspicions are not confirmed, you will be able to release transactions and close your deal more quickly.
Links to more information
Responsible for editing: Bayerisches Staatsministerium des Innern, für Sport und Integration
- Online transactions, Bavaria-wide
- Online transactions, locally limited
- Prefillable Form, Bavaria-wide
- Legal bases, Bavaria-wide
- Legal bases, locally limited
- Fees, Bavaria-wide
- Fees, locally limited