GERMANY Law and Practice Contributed by: Jörg Hofmann, Matthias Spitz and Michelle Hembury, Melchers
8. Anti-Money Laundering (AML) 8.1 AML Legislation The most relevant AML legislation in Germany is the AML Act, which implemented the Fifth Anti-Money Laundering Directive. Its newest amendment came into force in January 2021. It follows a risk-based approach and requires gambling operators that are affected by the scope of the AML Act to undertake a risk analysis of their business and to implement appro- priate measures to prevent money laundering and the financing of terrorism. Only certain gambling sectors are excluded from AML obligations, as follows: • operators of gaming machines, including gaming halls; • race clubs that carry on the business of a totalisa- tor; • land-based lotteries; and • charitable lotteries. 8.2 AML Requirements In order to prevent money laundering and terror- ist financing, obliged entities must have an efficient risk management system in place, which must be proportionate to the nature and size of the business. It must include a risk analysis – ie, an identification and assessment of the money-laundering risks of the business, considering the risk factors that have been identified in the law/the national risk analysis – and adequate customer and transaction-related internal safeguards need to be implemented to manage and mitigate the risks of money laundering and terrorist financing by means of policies, procedures and con- trols. Measures include: • the implementation of compliant customer due diligence (KYC) procedures; • the appointment of an AML officer and deputy AML officer; • vetting and training of staff; • monitoring, record-keeping and reporting; • internal revision and audits; and • compliance with the special provisions for online gambling (namely, regarding player accounts and payments).
Drafting an AML concept that describes in detail how the internal safeguards are implemented in practice and why the implemented measures are adequate is certainly useful in this respect. Measures are deemed adequate if they are proportionate to the risk expo- sure of the respective obliged entity and sufficiently cover such risks. The risk analysis has to be regularly reviewed and updated (at least once a year) and the efficiency of the internal safeguards has to be moni- tored and updated as and when required. A member of the management (who may not at the same time act as the AML officer) must be appointed as the person responsible for the overall risk man- agement system. The risk analysis and internal safe- guards will be subject to that member’s approval. Transparency of payments is also a key requirement that needs to be observed; particularly, operators are obliged to ensure that the identity of the player account holder aligns with the identity of the payment account holder.
9. Advertising 9.1 Regulatory/Supervisory Agency
Under the Interstate Treaty, advertising permits are no longer required. While the Interstate Treaty sets the framework for advertising, additional conditions are
set within the operator licence. 9.2 Definition of Advertising
German law applies a very broad interpretation of what constitutes advertising. Article 2 litera a of Direc- tive 2006/114/EC provides a helpful definition: “Adver- tising is the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations.” 9.3 Key Legal, Regulatory and Licensing Provisions Key legal, regulatory and licensing provisions include: • the provisions of the Interstate Treaty; • the licensing conditions; • the Act Against Unfair Competition;
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