On Jan. 10, the European Union’s 5th Anti-Money Laundering Directive (5AMLD), was officially signed into law. The legislation will give sweeping powers to compliance organizations and law authorities. However, aside from tracking dirty money to offshore paradises, the law brings about a series of restrictive demands on crypto companies in a way never seen before.
This development cuts into the notion that, in the past, the world’s richest people comfortably diverted money across borders through a financial framework that operates firmly in a legal grey area, which has long lingered in the public consciousness.
Until 2016, it seemed as if such an unspoken arrangement would carry on forever, but international finance changed as news of the Panama Papers began to spread. The shroud of secrecy that wealthy and public individuals enjoyed was ripped off, exposing that the Panamanian law firm and corporate service provider Mossack Fonseca had shell companies that were used for a variety of illegal purposes.
Since then, the public has become increasingly aware of illegal financial activity and has been putting pressure on governments and law authorities to crack down on the culprits. In turn, governments attempted to oblige, but “following the money” is easier said than done. In the past four years, regulators and governments alike have turned their attention to secretive offshore networks that offer anonymity to their clients. And it looks as if they may have nailed the rules that could potentially hurt the crypto industry.
5AMLD — a breakdown
The EU-wide Anti-Money Laundering (AML) directive was initially concocted after the shady financial flows of the world’s elite came to light in the Panama Papers. The 5AMLD is its most recent evolution, an emergency bill that follows increased scrutiny of money laundering and terrorist financing in Europe.
Although the new measures will ostensibly serve to increase security within the EU’s borders, it will also have a direct impact on cryptocurrencies. The enactment of the 5AMLD marks the first time that crypto service providers, such as virtual-fiat exchanges and custodian wallet providers, will fall under the regulatory purview.
Although there is a sizable percentage of investors who staunchly believe anonymity is a central characteristic of cryptocurrency, this new legislation will see digital currencies fall under the watchful eye of the law. In the wake of a string of devastating terrorist attacks that have taken place across Europe, lawmakers want to make it possible to know who is behind each crypto transaction being made and make sure it isn’t being used for illegal or deadly purposes.
Per the 5AMLD fact sheet, the law will increase transparency about the owners of legal entities and will give European regulators greater access to information stored in centralized bank account registers.
Cryptocurrency-based companies have been under mounting pressure to implement compliance measures when registering new clients. The 5AMLD is likely to see this increase on an industry-wide scale with the law aiming to improve information exchange between anti-money laundering supervisors and the European Central Bank.
The European union is a formidable economic and political hub. Because of the many hundreds of millions of wealthy consumers, it is able to significantly influence the rules of how business is carried out, including in external countries that seek access to the single market. This has created the modern phenomenon of companies in third-world countries lobbying their governments to improve regulation up to EU standards in order to have continued access to EU-based consumers.
Benjamin Kirschbaum, a German lawyer for Winheller Attorneys at Law & Tax Advisors, explained that such a dynamic means that the 5AMLD will likely influence countries around the world:
“The European Union is the strongest market after the U.S. By complying with their rules, you get access to over 500 million people with above average purchase power. Therefore, even highly independent countries like Switzerland comply with most EU regulations, such as data protection law.”
Europe’s police force welcomes the new law
A specialist from Europol’s Financial Intelligence Unit explained to Cointelegraph how the new law has helped create robust legal definitions for concepts like “custodian wallet provider” and “virtual currencies” that are integral to the cryptocurrency sector and will force wallet providers to report suspicious transactions to the authorities:
“Legal entities involved in this kind of activities must follow due diligence measures and report information on suspicious transactions to their correspondent FIUs. Based on this, EU Authorities could monitor the use of virtual currencies, providing a balanced and proportional approach to the field of cryptocurrencies and social entrepreneurship.”
Europol is no stranger to cracking down on crime involving cryptocurrency, having played a central role in shutting down a number of darknet marketplaces where users pay for illicit products, such as stolen personal data and drugs, with cryptocurrencies.
Though cryptocurrency transactions can be traced on the blockchain, it is not immediately possible to identify individuals from the data. Prior to 5AMLD, this work was usually done confidentially by blockchain analytics firms. However, with the new law in place, authorities within the EU have new powers over legal entities and can obtain information to identify the individuals behind suspicious crypto addresses. A Europol spokesperson elaborated:
“Receiving that information, Europol, as the EU information hub, would provide better both analytical and operational support as well as an add value to investigations to dismantle criminal organisations misusing cryptocurrencies.”
Lawyer and cryptocurrency expert gives his verdict on the 5AMLD
Winheller Attorney Kirschbaum outlined his view to Cointelegraph that the effects of the 5AMLD are likely to be felt by almost all cryptocurrency exchanges but predicted that it would be possible for growth to continue in the sector:
“Exchanges will now have to implement strong KYC procedures. This will help bringing cryptocurrency trading out of the gray market and make it easier for banks and institutional investors to make a move into the space, without regulatory backlash. So, we might begin to see more volume in the space and thus less volatility going forward.”
The CEO and founder of Polyx, as well as the backer of a recently launched AML checker app Traceer, Stan Chernukhin, echoed Kirschbaum’s theory that improving regulatory measures and minimising the high levels of risk could help bring in greater institutional investments by filling the regulatory gap:
“Of course, we are at the beginning of the story, but I’m sure that the mass adoption of Bitcoin and other cryptocurrencies is inextricably linked to transparency and the inability to use them to launder criminally acquired proceeds.”
While the associated costs of complying with the 5AMLD may be high, the price for shirking compliance responsibility is even higher. Austria’s financial regulators will fine companies that are not compliant with the law a maximum of 200,000 euros. Kirschbaum added that a number of EU member states are working on ways to punish non-compliant companies and that the fines can be high enough to bring a company to its knees:
“Those fines may be so high that they can be an existential threat to companies of small or medium size. In Germany, there will also be a company penal code coming into effect in the next years.”
The issue of anonymity is likely to be at the forefront of debates among lawmakers and influential figures in the cryptocurrency industry for the foreseeable future. Aside from the philosophical arguments that such privacy must be possible, in the real world, the law remains the law. Kirschbaum explained to Cointelegraph that de-anonymizing cryptocurrencies is necessary for intelligence agencies and justice systems to continue to protect the security of states and citizens alike:
“The legal requirements to de-anonymize cryptocurrencies should be given, because of competencies held by intelligence services or by criminal prosecutors. Companies like Chainalysis are already working with those agencies to de-anonymize most pseudonymous cryptocurrencies like Bitcoin. Only true privacy coins like Monero might stand the test of time and resist de-anonymization. Those currencies are therefore threatened the most to become legally outlawed.”
Exchanges and wallet providers are feeling the impact
For many exchanges and wallet providers, news of the law is bittersweet. While the 5AMLD shows that EU lawmakers recognise the maturing cryptocurrency industry, it also brings with it a compromise of a concept central to many users, along with an unwelcome financial burden.
For some companies, the new compliance regulations are the final nail in the coffin. While it was easier to run a crypto business only a few years ago, the ever-more crowded marketplace, tightening restrictions and associated costs are making businesses drop like flies. For United Kingdom-based crypto wallet provider Bottle Pay, the end came on Dec. 13 with the firm directly citing the new law as the reason for its closure.
However, other crypto companies seemed to have sensed the changing compliance winds and preemptively ramped up their procedures. Yehor Lastenko, certified anti-money laundering specialist and head of the EDD division of the U.K.-based CEX.IO exchange, told Cointelegraph that the firm was already fully compliant with the legislation and had been carefully tuning its compliance policy since 2014:
“We understand the importance of compliance procedures and providing a transparent and trusted service. This is why we implemented mandatory verification long before the adoption of 5AMLD. We introduced verification for fiat-related transactions in 2014, and in December 2018, we also made it mandatory for crypto-to-crypto transactions.”
David Carlisle, head of community at the Elliptic crypto forensics company, echoed this view, telling Cointelegraph that many companies across the EU are well prepared for the teething problems that new regulatory measures may bring along:
“Many EU crypto businesses are prepared for the challenges of implementation that lie ahead and have taken proactive steps to ensure their companies can secure necessary regulatory approvals and comply on an ongoing basis. Exchanges across the EU are submitting their registration and approval requests to regulators as we speak so that they can operate with official oversight.”
For Latsenko, while KYC measures can be off-putting for some customers, the growing compliance demands placed upon cryptocurrency companies is part of the balance of a growing industry that is starting to be taken seriously by the wider financial world:
“Customers may find additional compliance measures burdensome, especially since the anonymity attached to cryptocurrency is believed to be among the key advantages for many crypto users. At the same time, crypto exchanges and wallet providers become mature financial market players, providing a better experience and, most importantly, safety for customers.”
Even though at the end of January the U.K. will conclude the Brexit campaign and leave the EU, it is unlikely to become the next “offshore” haven. Latsenko explained to Cointelegraph that, due to the fact that most EU directives are based on the FATF recommendations, the U.K. is likely to uphold similar measures:
“Despite the inescapable Brexit, the new U.K. Money Laundering Regulations 2019 transposed requirements of the 5th EU Directive to local legislation such as the Money Laundering Regulations 2017, the Terrorism Act 2000, and the Proceeds of Crime Act 2002.”
Should I stay or should I go?
Although the powers of the new law are sweeping and will have a profound impact on the development of the cryptocurrency industry, beyond complying or dying, companies could opt for a third way: moving offshore. Regardless of the global impact of the 2016 leak, Panama is still a safe haven for companies seeking to operate in a less restrictive legal environment.
Deribit B.V., the Netherlands-based company responsible for running the Deribit.com exchange, announced on Feb. 10 that it would be delegating the trading platform to its daughter company, DRB Panama Inc, to avoid the 5AMLD. The firm said that the amount of data it would be required to produce was prohibited.
Carlisle believes that, in spite of the short-term inconveniences, companies that take an active approach to the ever-changing demands of compliance are likely to profit in the long run. He added that failing to do so may end up with companies being denied the ability to operate:
“Those proactive businesses that take an AML-first mindset can expect to thrive and protect their businesses against illicit activity, even if compliance does pose some near-term challenges. However, crypto businesses that are unprepared and have not taken steps to implement appropriate compliance arrangements may find that EU regulators do not give them the approval they need to operate."
Lennix Lai, financial market director of the Malta-based OKEx exchange, told Cointelegraph that the firm expects non-regulated companies and regulated companies to develop in a similar fashion regardless of the legislation imposed upon them:
“Unregulated would be looking more like a regulated venue in respect to market integrity, internal control, disclosure, and investor education and protection, whilst regulated players would be expected to add more products, more underlying, more trading expiries and instruments, and lowering margin requirement as in unregulated exchange.”