____________________________________________________________ Unofficial translation of the State Ordinance containing regulations on the supervision of money transfer companies (State Ordinance Supervision Money Transfer Companies) (AB 2003 no. 60) ____________________________________________________________
§ 1. General provisions
Section 1
For the purposes of this State Ordinance and the provisions stipulated by virtue of this State Ordinance, the following terms shall be defined as stated below: Money Transfer:
obtaining monetary
the
disposal
of
instruments
monies within
or the
framework of a money transfer, in order to
make
these
monies
or
monetary
instruments - whether or not in the same form – payable or cause same to be made payable to a third party elsewhere, or paying or making payable monies or monetary instruments, after these monies or monetary instruments – whether or not in the same form – were made available elsewhere, on the understanding that this monetary
transfer
is
an
unconnected
service; Money laundering:
Terrorist financing:
an offence as meant in Sections 430b, 430c and 430d of the Penal Code of Aruba (AB 1991 no. GT 50); 1° Intentionally acquiring or having possession of objects with monetary
value, intended for the commission of an offence as meant to in Section 85 of the Penal Code of Aruba; 2째 intentionally providing financial means for the purpose of committing an offence as meant to in Section 85 of the Penal Code of Aruba, or
Third Party:
3째 providing financial support as well as raising funds for an organization of which the intention is to commit offences as meant in Section 85 of the Penal Code of Aruba; a. the natural person who does not act as a representative of a Money Transfer Company; b.
the legal entity or company that does not form part of a credit institution as meant in Section 1, first
paragraph,
Ordinance
on
of the
the
State
Supervision
Credit System (Statute Publication Gazette [SPG] 1998, No. 16), of which a Money Transfer Company forms part, nor the Money Transfer Company itself; Money Transfer Company:
the
natural
person,
legal
entity
or
company that conducts Money Transfers as a profession or trade on behalf, or at the request of a Third Party, or that is engaged as a profession or trade in the conclusion thereof; Register:
the register meant in Section 3, first paragraph;
the Bank:
the Central Bank of Aruba;
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the Minister:
the Minister charged with handling the financial affairs.
Section 2
1. It is prohibited to be active as a Money Transfer Company. 2. The prohibition contained in the first paragraph shall not apply to: a.
the natural person, legal entity or company that is registered as a Money Transfer Company in the Register;
b.
the Bank;
c.
credit institutions that are in the possession of a license as meant in Section 4 or Section 24, first paragraph, of the State Ordinance on the Supervision of the Credit System.
d.
the country of Aruba
Section 3
1. There shall be a Register of Money Transfer Companies held by the Bank. 2. A Money Transfer Company shall be entered in the Register upon a request to this effect, unless based on the reliability of one of the persons meant in Section 4, first paragraph, sub a, b and c, or based on the management or the administrative organization of the company the Bank: a.
is of the opinion that the integrity of the financial system will be affected by the registration, or it is plausible that it could be affected;
b.
has a reasonable suspicion that the company or a person as meant in Section 4, first paragraph, sub a, b or c commits or will commit
money laundering or terrorist financing ; c.
is of the opinion that the management or the administrative organization of the company is insufficient to promote and
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maintain an integer conduct of business, or to fulfill the statutory obligations resting on the company. 3. There is question in any case of impairment of the integrity as meant in the second paragraph, sub a, if the Bank has a reasonable suspicion that the Money Transfer Company or one or more of the persons meant in Section 4, first paragraph, sub a, b or c, commit or will commit money laundering or terrorist, financing or involved in money laundering or terrorist financing. 4. A Money Transfer Company that makes amounts of money available for payment, or intends to do so, shall dispose of a bank guarantee on which one may exclusively draw after permission of the Bank; the Bank shall lay down the model of the bank guarantee, 5. The minimum amount of the bank guarantee as meant in the fourth paragraph, shall be fixed by State Decree containing General Administrative Orders.
Section 4
1. An application for registration as meant in Section 3, second paragraph, shall contain the following data and shall be accompanied by the following documents: a.
the identity and the antecedents of the managing directors, as well as a certificate of good conduct of those managing directors;
b.
the identity and the antecedents of those who determine or help determine the day-to-day management of the Money Transfer Company, as well as a certificate of good conduct of these persons;
c.
the identity and antecedents of the persons who are authorized directly or indirectly to appoint or discharge the persons meant under sub a and b, as well as a certificate of good conduct of these persons;
d.
the name, address, and domicile of the company and the address and domicile of the branch offices;
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e.
the conduct of business contemplated, including the measures aimed
at
the
promotion
and
maintenance
of
an
integer
management and administrative organization; f.
the registration number at the Chamber of Commerce and Industry;
g.
the identity of those who have a direct or indirect interest exceeding 5% of the placed share capital of the company, as well as the size of the qualified holding or holdings in question;
h.
the kind of Money Transactions the company conducts or intends to conduct.
Being able to exercise more than 5% of the voting rights in the company and being able to exercise a similar control directly or indirectly, shall be put on a par with a qualified holding as meant under sub g. 2. If the Bank so desires with a view to a proper evaluation of the application, the applicant shall supply other or further information or documents. The Bank shall decide on the application within thirteen weeks after it has received the supplementary data or documents. 3. A Money Transfer Company shall pay the Bank a fee in respect of the application for registration in the register, the amount of which shall be fixed by State Decree containing General Administrative Orders.
Section 5
1. The entry in the register shall contain the name, the address and domicile of the Money Transfer Company, the address and domicile of the branch offices, the date of entry in the register, the number of the registration in the Trade Register and the kind of Money Transfers the company conducts or intends to conduct. 2. A Money Transfer Company entered in the register shall report each contemplated change that occurs in the data meant in Section 4, first paragraph, sub a through c and g, in as far as it concerns the
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number and the identity of the persons mentioned there to the Bank in advance and in writing. 3. A change as meant in the second paragraph shall not be implemented, if the Bank rejects the intention to do so within thirteen weeks after receipt of the notification meant in the second paragraph, or, if the Bank requested further data or information, within thirteen weeks after the receipt of those data or information. 4. The Money Transfer Company shall promptly inform the Bank in writing of changes in the data as meant in Section 4, first paragraph, other than as meant in the second paragraph.
Section 6
1. To the extent necessary to perform the duties imposed in this State Ordinance, the Bank may give directives to the money transfer companies entered in the register in relation to: a. accounting procedures and business operations, including the accounting records and internal control; b. the reliability and expertise of the directors and persons who co-determine the policy of the Money Transfer Company; c. the measures that need to be taken to prevent money laundering and terrorist financing. 2. The directives meant to in the first paragraph may relate to the implementation of rules in other State ordinances. 3. The Bank may give a money transfer company instructions on the way in which directives as meant in the first paragraph are to be implemented. Section 7
1. The Bank shall cancel the entry in the register of the Money Transfer Company: a.
at the company’s request;
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b.
in case of death of the natural person conducting the company as a sole proprietorship;
c.
in the event the company or the natural person conducting the company is declared bankrupt
d.
in the event of dissolution of the legal entity or firm conducting the business of a Money Transfer Company;
e.
in the event of termination of the activities as a Money Transfer Company. 2. The Bank may cancel the entry in the register of a Money Transfer Company:
a.
in the event the company evidently does not conduct money transactions any longer, or is no longer active in the effectuation thereof as a profession or trade;
b.
in the event the company does not fulfill its statutory obligations, including the obligations by virtue of the Sections 6, 9 and 23;
c.
in the event it is of the opinion based on an investigation into the reliability of one of the persons mentioned in Section 4, first paragraph, sub a, b, c and g, or it is of the opinion based on the management or administrative organization of the company, that the integrity of the financial system is impaired or it is plausible that it could be impaired;
d.
in the event it receives information that, if it had been familiar with this information at the moment of the application for registration, this would have led to it that the application would not have been granted;
e.
if one of the managing directors or the person who determines the day-to-day operations of the company, or co-determine same, has been declared bankrupt. 3. There is question in any case of impairment of the integrity as meant in the second paragraph, sub c, if there is reasonable suspicion that:
a.
the Money Transfer Company or one or more persons meant in the opening lines of this paragraph commit or will commit money
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laundering or terrorist financing, or are involved in money laundering or terrorist financing; b.
the management or administrative organization of a Money Transfer Company is insufficient to promote or maintain an integer conduct of business or to comply with other statutory obligations imposed on the company. 4. If the Bank cancels the registration at a moment that the Money
Transfer Company has obtained monies or monetary instruments at its disposal within the framework of a money transaction, and it did not yet made the pay ment or made this payable, it shall give this company directions as regards to the way of settlement of the money transaction in question.
Section 8
1. The Bank shall publish an entry in the register and a cancellation of an entry in the Government Gazette of Aruba. 2. Each year in the month of January, the Bank shall publish a copy of the register in conformity with the situation as of December 31 of the preceding year in the Government Gazette of Aruba. 3. The register shall be open for inspection by each and everyone free of charge at the office of the Bank.
Section 9
By State Decree, containing General Administrative measures, having consulted the Bank, costs incurred in the implementation of this State Ordinance may be recovered from the registered credit institutions.
ยง 4. Exemptions
Section 10 8
1. In special cases, the Bank is authorized to grant natural persons and legal entities exemption from the prohibition contained in Section 2, first paragraph. Regulations and limitations shall be attached to the exemption. 2. An application to grant an exemption shall be filed in writing with the Bank. Section 4, first paragraph shall apply mutates mutandis. 3. The application shall be rejected if, based on an evaluation of the reliability of one of the persons meant in Section 4, first paragraph, sub a through c, or based on the management or the administrative organization of a company, the Bank is of the opinion that: a.
the
interests
this
State
Ordinance
seeks
to
protect
are
insufficiently safeguarded, or b.
the integrity of the financial system is impaired by this, or it is plausible that it could be impaired, or
c.
it is insufficient to promote or maintain a sound management or to comply with the other statutory obligations resting on the company. 4. The Sections 3, third paragraph, and 8, first paragraph shall
apply mutates mutandis.
Section 11
1. The Bank may withdraw an exemption granted, if the reason for granting it no longer exists; such a decision shall state the ground for withdrawal.
The
natural
person
or
legal
entity
with
regard
to
whom/which it was decided to withdraw the exemption, shall be given the opportunity to file an application for registration as a Money Transfer Company, unless it is immediately clear that it concerns a case as meant in Section 3, second paragraph. 2. The prohibition meant in Section 2, first paragraph shall not apply as regards the person or a company that on the day prior to the withdrawal of an exemption granted, has filed an application for
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registration, until the second day after the decision on the application was dispatched. 3. The Sections 8, first paragraph, and 9 shall apply mutatis mutandis to natural persons or legal entities that were granted an exemption.
ยง 5. Supply of information
Section 12
1. The Bank may: gather any and all information, or cause same to be gathered, that is required in reason for the performance of its tasks and exercise of the powers it has pursuant to this State Ordinance in order to ascertain whether the provisions of, or by virtue of this State Ordinance are complied with, from: a.
Money Transfer Companies entered in the Register;
b.
Money Transfer Companies that have been granted exemption in pursuance of Section 10, first paragraph; 2. The Bank shall be authorized to request information from any
registered Money Transfer Company and from any credit institution in the possession of a license as meant in Section 4 or Section 24, first paragraph,
of
the
State
Ordinance
Supervision
Credit
System,
concerning transactions conducted by that company or that institution with another Money Transfer Company or other credit institution, as far as this is necessary in reason for the performance of its task. 3. An institution as meant in the first paragraph from which information is requested, shall supply same within a reasonable term to be determined by the Bank. 4. In as far as the information meant in the first paragraph concerns data that are furnished to the Bank by virtue of another statutory regulation, the company may fulfill the obligation mentioned in the third paragraph by considering these data furnished under this State Ordinance. 10
Section 13
1. The President of the Bank shall designate the persons employed by the Bank with the gathering of information as meant in Section 12, first and second paragraph. Such a decision shall be published in the Government Gazette of Aruba. 2. The persons designated in pursuance of the first paragraph shall have the power, exclusively as far as this is reasonably necessary for the performance of their task: a.
to demand inspection of all (business) books, records and other data carriers, and to make copies thereof or to take these with them temporarily;
b.
to enter all places, with the exception of dwelling houses without the explicit permission of the occupant, accompanied by persons designated by them. 3. If necessary access will be gained to a place as meant in the
second paragraph, sub b, with the aid of the police. 4. The State Decree General Provisions Exercising Supervision (AB 1998, No. 70) or the State Decree replacing it, shall be applied accordingly in fulfillment of the duties of the persons designated in pursuance of the fifth paragraph. 5. Each person shall give the persons designated in pursuance of the first paragraph any assistance requested based on the second paragraph.
Section 14
Without prejudice to Section 6, the Bank may lay down rules with a view to a sound management of the Money Transfer Companies, which in any case shall be understood to be rules concerning: a.
the prevention of conflict of interest;
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b.
the prevention of involvement of the company and of its employees in offenses harming the confidence in the Money Transfer business or in the financial markets in general;
c.
the prevention of involvement of the company and of its employees in acts that are otherwise so unacceptable in social and economic life that they harm the confidence in the Money Transfer business or in the financial markets in general;
d.
the establishment of the identity, the nature and the background of the clients of the company.
Section 15
1. Each year, within six months after the end of the financial year, a registered Money Transfer Company shall send the Bank an annual report concerning its operations and administrative organization. 2. The report meant in the first paragraph shall be accompanied by a certificate of fairness of an auditor of the financial information supplied, unless the size of the Money Transfer Company does not allow this, in which case one may restrict oneself to a review opinion of an auditor. 3. If the Bank is of the opinion that an auditor does not provide or no longer provides the necessary guarantees that he can fulfill his task properly in relation to a money transfer company, the Bank may decide with respect to this auditor that he is no longer authorized to make the reports meant
in the second paragraph in
relation to that money transfer company. 4. The Bank shall notify the money transfer company in question immediately of a decision as meant in the third paragraph.
Section 16
Without prejudice to Section 6, if a circumstance presents itself in a Money Transfer Company as meant in Section 3, second paragraph, sub a or b, or in Section 7, second paragraph, sub b through e, the Bank 12
may give the company or a person as meant in Section 4, first paragraph, sub a, b or c, an instruction to follow a certain course of action as regards named subjects, in order to achieve that the circumstance in question occurs no longer. The company, or the person in question, shall comply with the instruction within a reasonable term to be determined by the Bank.
ยง 6. Exchange of information
Section 17
A financial service provider as meant in Section 1, sub a, of the State Ordinance Identification for Financial Service (AB 1995, No. 86) shall not render any financial services as meant in Section 1, sub b, of that State Ordinance Supervision Money Transfer Companies to which, as he knows or may suspect in reason, the prohibition meant in Section 2, first paragraph, is applicable.
Section 18
1. Nobody who fulfills any duty on account of the implementation of this State Ordinance or of decisions made in pursuance of this State Ordinance, shall disclose data or information given or obtained in pursuance of this State Ordinance, further or otherwise than is required for the fulfillment of his duties or by this State Ordinance 2.
The
order
described
in
the
first
paragraph
shall
leave
unimpeded as regards persons to whom the first paragraph is applicable, the applicability of the Code of Criminal Procedure (AB 1996, No. 75).
Section 19
The Bank shall inform the reporting center unusual transactions, meant in Section 2 of the State Ordinance Obligation to Report Unusual Transactions (SPG 1995, No. 85), of facts it discovered in the 13
fulfillment of the duties it is charged with under this State Ordinance, and that may be of importance to the supervision of the compliance with the State Ordinance Obligation to Report Unusual Transactions.
Section 20
1. In deviation from Section 18, first paragraph, the Bank is authorized to furnish data or information obtained in the fulfillment of the duties imposed on it in pursuance of this State Ordinance, to bodies in Aruba or abroad designated by the authorities, which are charged with the supervision of financial markets or of natural persons, legal entities and companies active in these markets, unless: a.
the purpose for which the data or information will be used is insufficiently specified;
b.
the intended use of the data or information does not fit the framework of the supervision of financial markets or of natural persons, legal entities and firms active in these markets;
c.
the supply of the data or the information would not be compatible with Aruban law or public order;
d.
the
secrecy
of
the
data
or
information
is
not
adequately
guaranteed; e.
the supply of the data or information is or may in reason come into conflict with the interests this State Ordinance seeks to protect, or
f.
it is not sufficiently guaranteed that the data or information will not be used for a purpose other than for which it is supplied. 2. If a foreign body as meant in the first paragraph, requests the
person who supplied the data or information in pursuance of that paragraph, to be allowed to use these data or this information for a purpose other than for which it was supplied, the Bank shall only grant such request: a.
as far as the intended use is not in conflict with the first paragraph, sub a through e, or
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b.
as far as this foreign body would be able to obtain these data or this information from Aruba for that other purpose in another way than provided for in this State Ordinance, with due observance of the relevant prevailing procedures. 3. If the request meant in the second paragraph is related to an
investigation into offenses, this shall only be granted with the permission of the minister charged with judicial affairs.
Section 21
1.
The
Bank
is
authorized,
for
the
implementation
of
Treaties/Conventions on the exchange of data or information, or for the implementation of binding resolutions of international organizations concerning the supervision of financial markets or of natural persons, legal entities and companies active in these markets, for the benefit of a body active in a State that together with Aruba is party to a Treaty/Convention, or that together with Aruba falls under the same binding resolution of an international organization, and that is charged in
that
State
with
the
implementation
of
statutory
regulations
concerning the supervision of the credit system or Money Transfer Companies, to request information from or conduct an investigation, or cause an investigation to be conducted, at any registered Money Transfer Company that falls under its supervision pursuant to this State Ordinance, or from any person of whom it may be suspected in reason that he disposes of data or information that may be of importance to the implementation of the statutory regulations as meant above. 2. The person who was asked to provide data or information as meant in the first paragraph, shall supply these data or this information within a reasonable term to be determined by the Bank. 3. The person at whom an investigation is conducted as meant in the first paragraph, shall give the person who conducts the investigation any assistance required for a proper conduct of that investigation, on the understanding that the person at whom the investigation is
15
conducted may only be obligated to grant inspection of books, documents and other data carriers.
Section 22
1. The Bank may permit that an official of a foreign body as meant in Section 21, first paragraph, participates in carrying out a request as meant in that paragraph. 2. An official as meant in the first paragraph, shall comply with the directions of the person charged with the carrying out of the request. 3. The order, contained in Section 21, third paragraph, shall also apply to the official meant in the first paragraph.
ยง 7. Administrative sanctions
Section 23
1. The Bank may impose an order for penalty payments in connection with the infringement of regulations enacted in or by virtue of the Sections 3, third paragraph; 5, second, third and fourth paragraph; 6; 7, fourth paragraph; 10, first paragraph; 12, third paragraph; 13, fifth paragraph; 14 through 17; 21, second and third paragraph; and 22, third paragraph, up to an amount of two hundred and fifty thousand florin. 2. The Bank may also impose an administrative penalty in connection with the violations meant in the first paragraph up to an amount of two hundred and fifty thousand florin. 3. By State Decree containing General Administrative Orders, further rules may be enacted with a view to a proper application of the power to impose an order for penalty pay ments and an administrative penalty.
The Bank will be entitled to forfeited penalties and administrative fines. 4.
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Section 24
The person towards whom an act has been performed by the Bank, to
which
he
administrative
could penalty
reasonably will
be
attach
the
imposed
on
conclusion, him
on
that
an
account
of
infringement of the provisions of or by virtue of this State Ordinance, is not obligated to make any statement concerning that matter. He shall be informed hereof, before he will be asked verbally for information.
Section 25
1. The administrative penalty shall be due within six weeks after the date of the decision by which it was imposed. 2. The administrative fine shall be augmented by the legal interest to be counted from the day after the six weeks have lapsed since the notification of the decision.
Section 26
1. The power to impose an administrative penalty shall cease to be in effect: a.
if criminal proceedings have been instituted on account of the violation, and the court hearings has started, or the right to prosecution has ceased to exist pursuant to Section 76 of the Criminal Code of Aruba;
b.
three years after the day the infringement was committed. 2. The term meant in the first paragraph, sub b, will be interrupted
by a notification of the decision by which the administrative penalty was imposed.
Section 27
17
1. With a view to the protection of the financial system and the fight against money laundering and terrorist financing, the Bank has the power, in deviation from Section 18, first paragraph, to bring the offense as well as the name, address and domicile of the party involved, which the order for penalty pay ments or the administrative fine was imposed, to the notice of the public. 2. By regulation of the Minister, rules may be enacted concerning the exercise of the power meant in the first paragraph. 3. The decision to bring to the notice of the public shall become effective on the day on which the offense was brought to the notice of the public, without the operation being suspended for the duration of the appeal period or, if appeal has been instituted, of the appeal, if no address is known of the party concerned, and cannot be obtained either with reasonable efforts.
Section 27a 1. If a forfeited penalty or fine is not paid within the period set by the Bank, a demand will be made to the infringer to pay the amount of the penalty or fine, plus the cost of the demand, within two weeks. 2. Failing payment, the Bank may collect the amount and the costs meant in the first paragraph from the infringer, plus the collection costs, by way of a writ of execution. 3. The writ of execution will be collected by bailiff’s writ at the infringer’s expense in the manner meant in the Code of Civil Procedure of Aruba. 4. Opposition against the writ of execution shall be possible for six weeks after the day of service; opposition will suspend execution. Section 28
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1. The Bank shall keep note of the activities that took place within the framework of an investigation, prior to the imposition of an administrative fine; it shall state in these notes the persons who carried out these activities. 2. The report meant in Section 30 shall state the application of the powers granted in this section.
ยง 8. Penal provisions
Section 29
1. He who intentionally infringes the prohibition meant in Section 2, first paragraph, or the order meant in Section 17, shall be liable to imprisonment not exceeding four years or a fine not exceeding five
hundred thousand florins , or both punishments. 2. He who is to blame for it that the prohibition meant in Section 2, first paragraph, or the order meant in Section 17, is infringed, shall be liable to imprisonment not exceeding two years or a penalty not
exceeding
two
hundred
and
fifty
thousand
florins ,
or
both
punishments 3. He who infringes the regulations given by virtue of Section 6, first paragraph, 14 or 16, shall be liable to imprisonment not exceeding
a hundred thousand florins . 4. The offenses meant in the first and second paragraph are criminal offenses; the offenses meant in the third paragraph are lesser offences.
ยง 9. Final provisions
Section 30
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1. Each year, prior to July 1, the Bank shall report to the Minister on the activities it carried out within the framework of this State Ordinance.
Section 31
1. This State Ordinance shall become effective as of the day after the day of its publication in the Statute Publication Gazette of Aruba, it being understood that the prohibition mentioned in Section 2, shall not apply to Money Transfer Companies that are registered as such in the Trade Register, during one hundred and eighty days after its effective date. 2. It may be cited as State Ordinance Supervision Money Transfer Companies.
Given at Oranjestad,
The Minister of Finance and Economic Affairs,
The Minister of Justice,
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