USE OF CASH (RESTRICTION) REGULATIONS

SUBSIDIARY LEGISLATION 373.04

USE OF CASH (RESTRICTION) REGULATIONS

9th March, 2021

LEGAL NOTICE 81 of 2021 as amended by Legal Notice 421 of 2021.

(1)

The title of these regulations is the Use of Cash

(Restriction) Regulations.

(2) The objective of these regulations is to introduce a

restriction on the use of cash for certain payments and transactions

with a view to combating money laundering and other criminal

activity.

(1) All words and phrases not defined within these

regulations shall have the same meaning as prescribed in the

Prevention of Money Laundering Act and the Prevention of Money

Laundering and Funding of Terrorism Regulations.

(2)

In these regulations, unless the context otherwise

requires

"the Act" means the Prevention of Money Laundering Act;

"antique" means a work of art or an object of a geological,

paleontological, archaeological, or antiquarian importance and which

is at least one hundred years old;

"cash" means legal tender currency notes and coins;

"immovable property" means and includes all things, rights

and actions which are immovable by their nature or by reason of the

object to which they refer in accordance with articles 308 and 310 of

the Civil Code;

"jewellery" means personal ornaments made in whole or in

part, or covered with gold, silver, platinum or other precious metals

and, or, set with diamonds, precious stones or pearls, and wrist

watches;

"linked transaction" means two or more transactions which are

performed by the same parties, having the same or similar linked

purpose or purposes, and which are carried out within a period of six

(6) months;

"motor-vehicle" means any self-propelled road vehicle which

is normally used for carrying persons or goods on the road, whether

such vehicle has been previously owned or not;

"payment account" shall have the same meaning assigned to it

under the Financial Institutions Act;

"precious metal" means gold, platinum, palladium and silver in

the pure state and their alloys;

"precious stone" means a substance with gem quality and

market-recognised beauty, rarity, and value, and includes diamond,

sapphire, ruby and emerald;

"sea-craft" means any ship, boat, pleasure yacht and any other

form of sea-craft by whatever name called, used in navigation;

"the Unit" means the Financial Intelligence Analysis Unit as

established under article 15 of the Act;

"trader"" shall have the same meaning assigned to it under the

Commercial Code.

(1)

It shall not be lawful for any person to make or

receive a payment or otherwise carry out a transaction in cash

amounting to, or exceeding, ten thousand euro (€10,000) or its

equivalent in any other currency, whether in one transaction or in

several linked transactions, in respect of the purchase or sale of

(a)

antiques;

(b)

immovable property;

(c)

jewellery, precious metals, precious stones and

pearls;

(d)

motor-vehicles;

(e)

sea-craft; and

(f)

works of art.

(2) Any person who contravenes the provisions of sub-

regulation (1) shall be guilty of an offence and liable, on conviction,

to a fine (multa) of not less than forty per centum (40%) of the sum

paid, received, or otherwise transacted in cash in excess of nine

thousand nine hundred ninety nine euro and ninety nine cents

(€9,999.99), or its equivalent in any other currency

Provided that where the person so found guilty is the

director, manager, or any other officer exercising executive functions

in a company or other undertaking, or body of persons, the said

person shall, for the purpose of this regulation, be deemed to be

vested with the legal representation of the same company or other

undertaking, or body of persons, which shall accordingly be liable in

solidum with the person found guilty for the payment of the said fine

(multa).

(3)

The fine (multa) referred to in sub-regulation (1) shall be

considered as a civil debt owed and payable to the Unit in respect of

which the Unit shall have an executive title.

(1)

The Court of Magistrates, in its criminal

jurisdiction, shall be the competent court to take cognisance of

offences against these regulations.

(2) Notwithstanding the provisions of the Criminal Code,

the Attorney General shall have a right of appeal to the Court of

Criminal Appeal from any judgment given by the Court of

Magistrates in respect of criminal proceedings under these

regulations.

(3) In any criminal proceedings under these regulations, any

officer of the Unit may, notwithstanding the provisions of any other

law, produce evidence in Court

Provided that the said officer may state the facts

constituting the offence before giving evidence.

(4) Notwithstanding the provisions of the Criminal Code,

criminal proceedings for an offence against these regulations shall be

barred by prescription by the lapse of five (5) years.

(1)

Without prejudice to any other liability, whether

criminal or civil, and to any related proceedings under any other law,

a person who acts in contravention of regulation 3(1) may, as an

alternative to criminal proceedings, and with the consent of the

Attorney General, prior to being charged in court, agree to the

payment of an administrative penalty to be imposed by the Unit as

follows

(a)

where the sum paid, received, or otherwise

transacted in cash amounts to not more than fifty thousand

euro (€50,000), an administrative penalty of ten per centum

(10%) of the sum paid, received, or otherwise transacted in

cash in excess of nine thousand nine hundred ninety nine euro

and ninety-nine cents (€9.999.99), or its equivalent in any

other currency, shall be imposed

Provided that such administrative penalty shall

not be less than one thousand euro (€1,000); and

(b)

where the sum paid, received or otherwise

transacted in cash amounts to more than fifty thousand euro

(€50,000) but does not exceed one hundred thousand euro

(€100,000), an administrative penalty of twenty-five per

centum (25%) of the sum paid, received, or otherwise

transacted in cash in excess of nine thousand nine hundred

ninety nine euro and ninety-nine cents (€9.999.99), or its

equivalent in any other currency, shall be imposed.

(2) The administrative settlement referred to in sub-

regulation (1) shall not be concluded unless the agreement entered

into with the Unit is accompanied by the payment to the Unit of the

administrative penalty or the provision of sufficient security for its

payment.

(3) Upon payment of the administrative penalty, the

offender’s criminal liability under these regulations, in relation to the

offence in respect of which the settlement has been entered into, shall

be extinguished.

(4) An administrative settlement as stipulated in sub-

regulation (1) shall not be entered into by

(a)

any person who pays, receives or otherwise

transacts in cash, where the sum of such payment, receipt or

transaction exceeds one hundred thousand euro (€100,000); or

(b) any person who has been either found guilty of

contravening the provisions of regulation 3, or has entered into

an administrative settlement in terms of sub-regulation (1),

unless three (3) years have elapsed from the date of such

judgement or settlement agreement.

A payment made or received, or a transaction carried

out, in contravention of regulation 3(1) shall not affect the legal

validity of the payment or transaction, and of the contractual

obligation in respect of which the payment or transaction was carried

out, and all parties to the payment or transaction shall be bound by

their contractual obligations notwithstanding such contravention.

Parties to a deed of purchase or sale of immovable

property amounting to ten thousand euro (€10,000) or more, or its

equivalent in any other currency, shall provide to the notary drawing

up the deed the following information, which the notary shall have an

obligation to collect

(a)

the name, address, the type and number of any

official identification document issued by a government

authority used to verify the identity of an individual, or any

official registration number used to identify a body corporate,

as may be applicable, of the buyer, seller, and any agents

thereof;

(b)

where payment is made in whole or in part

through the transfer of funds from a payment account, the

payment account IBAN;

(c)

where payment is made in whole or in part by

means of a credit or other payment card, the card number and

the issuing institution;

(d)

where payment is made in whole or in part by

means of cheque, bank draft or similar instrument, the number

of such cheque, bank draft or similar instrument and the name

of the credit or financial institution on which it is drawn; and

(e)

where payment is made in whole or in part

through other methods or means, including payments in kind,

the methods or means of payment and the exact amount so

paid.

Any person who knowingly makes a false declaration, or

a false representation, or who produces false or incomplete

information or documentation for the purposes of these regulations

shall be guilty of an offence and shall be liable, on conviction, to a

fine (multa) of not more than twenty-five thousand euro (€25,000).

(1)

The documentation, data or information referred

to in regulation 7 shall be kept by the notary for a period of five (5)

years commencing on such date when the transaction is carried out,

or in the case of linked transactions, on the date on which the last

transaction was carried out.

(2) Notaries shall ensure that, upon request, all records

maintained in accordance with this regulation are made available

without undue delay to the Unit.

(3) The retention of personal data shall no longer be deemed

necessary for the purposes of these regulations beyond the period

established in terms of sub-regulation (1).

(4) The provisions of this regulation shall be without

prejudice to the right of any other authority in terms of any applicable

law to access the documentation, data and information described in

regulation 7.

(1)

The Unit shall have the function to monitor and

to ensure compliance with these regulations.

(2)

In carrying out its function under sub-regulation (1), the

Unit may

(a)

authorise any of its officers, employees, or

agents to require any trader or notary subject to these

regulations, to provide him or her with the information or

documentation as may be required in order to monitor

compliance with the provisions of these regulations and to

answer any questions as the Unit may reasonably require for

the performance of its function under sub-regulation (1); and

(b)

carry out on-site examinations on any trader and

notary subject to these regulations, with the aim of monitoring

compliance and ensuring adherence with the provisions of

these regulations.

(1)

Notwithstanding any other provisions in the law,

in the exercise of its functions under these regulations, the Unit may

request the assistance of, and shall cooperate and exchange

information with other national authorities and Government

departments as may be necessary, including with the Police, the

Attorney General, and the Commissioner for Revenue, for the

purpose of monitoring and ensuring compliance with these

regulations and in any investigation or prosecution of any person who

has acted in contravention of the provisions of regulation 3(1).

(2) The Unit may, when it imposes an administrative

penalty or issue a written warning to any trader or notary in terms of

these regulations, or where any trader has been found to be

contravening the provisions of regulation 3(1), inform the relevant

authority, body or committee responsible for the authorisation,

licensing, registration or regulation of the trader or notary concerned,

providing any relevant information and details on the case in question

which the Unit considers necessary

Provided that, when the Unit deems appropriate, it may

also recommend to any relevant authority, body or committee

responsible for the authorisation, licensing, registration, or regulation

of the trader or notary concerned, to take any further action within its

powers and remit as deemed suitable and appropriate by the said

authority, body, or committee.

The Unit may issue procedures and instructions,

including templates, as may be required for the carrying into effect of

these regulations, and which shall be binding on all traders and

notaries subject to these regulations.

(1)

Any trader or notary who fails to comply with

any lawful requirement in accordance with these regulations, or with

any procedures and instructions issued by the Unit in accordance with

regulation 12, shall be liable to an administrative penalty of not more

than five thousand euro (€5,000) which shall be imposed by the Unit

without recourse to a court hearing, in accordance with policies and

procedures established by the Board of Governors referred to in the

Act.

(2) Notwithstanding the provisions of sub-regulation (1), the Unit

may, where circumstances so warrant, issue a warning in writing

instead of an administrative penalty.