(1) 1The obliged entity may engage third parties in order to fulfil the general due diligence requirements under section 10 (1) nos. 1 to 4. 2Third parties must only be
- obliged entities under section 2 (1),
- obliged entities under Article 2(1) of Directive (EU) 2015/849 in another member state of the European Union,
- member organisations or associations of obliged entities under no. 2 or institutions and persons located in a third country if they are subject to due diligence and record-keeping requirements
a) that are equivalent to the due diligence and record-keeping requirements set out in Directive (EU) 2015/849 and
b) where compliance with these due diligence and record-keeping requirements is supervised in a manner consistent with Chapter IV(2) of Directive (EU) 2015/849.
3The responsibility for fulfilling the general due diligence requirements remains with the obliged entity.
(2) 1Obliged entities must not engage third parties established in a high-risk third country. 2An exemption from this applies to
- branches of obliged entities under Article 2(1) of Directive (EU) 2015/849 established in the European Union, provided the branch fully implements the group-wide policies and procedures under Article 45(1) of Directive (EU) 2015/849, and
- subsidiaries majority-owned by an obliged entity under Article 2(1) of Directive (EU) 2015/849 established in the European Union, provided the subsidiary fully implements the group-wide policies and procedures pursuant to Article 45 of Directive (EU) 2015/849.
(3) 1When an obliged entity engages third parties, it must ensure that the third parties
- comply with the provisions of this Act when identifying persons located in Germany,
- obtain the information necessary to fulfil the due diligence requirements under section 10 (1) nos. 1 to 4, and
- transmit this information directly and without delay to the obliged entity.
2In addition, the obliged entity is required to take appropriate steps to ensure that, at its request, the third parties, without delay, present copies of the documents relevant for establishing and verifying the identity of the contracting party, any persons representing the contracting party and any beneficial owner, including, where available, information obtained through electronic identification means under section 12 (1) no. 4, as well as other relevant documents. 3The third parties have the right to make copies of and pass on identity documents for this purpose.
(3a) 1To identify the contracting party, any person representing the contracting party and a beneficial owner, the third party can also use information obtained at an earlier time to identify that person in accordance with subsection (3) sentence 1 no.2, provided that
- the person was identified in the course of establishing the third party’s own business relationship, and not using simplified due diligence,
- the identification or the most recent update was completed not more than 24 months previously in compliance with section 12,
- external circumstances mean that the obliged entity does not have any doubt that the information provided to it is correct, and
- the validity of any identification document used in the identification or the most recent update in compliance with section 12 has not expired.
2Subsection (3) sentences 2 and 3 applies, with the necessary modifications.
(4) The requirements of subsections (1) and (3) are deemed to have been fulfilled if
- the obliged entity engages third parties belonging to the same group as itself,
- the due diligence requirements, record-keeping requirements, policies and procedures for preventing money laundering and terrorist financing which are adopted by the group are consistent with the provisions of Directive (EU) 2015/849 or equivalent provisions and
- the effective implementation of these requirements at group level is supervised by an authority.
(5) 1An obliged entity may delegate performance of the measures necessary in order to fulfil the due diligence
requirements under section 10 (1) nos. 1 to 4 to suitable persons and companies other than the third parties specified in subsection (1). 2Delegation requires a contractual agreement and the obliged entity must ensure that the other suitable persons and companies comply with the provisions of this Act. 3Measures taken by the persons or the companies are deemed to be the obliged entity’s own. 4Subsection (3) applies, with the necessary modifications.
(6) Delegation under subsection (5) must not
- hinder the obliged entity in fulfilling its obligations under this Act,
- interfere with the powers and ability of the obliged entity’s management to supervise and oversee the institution or person or
- interfere with the powers and ability of the supervisory authority to supervise the obliged entity.
(7) 1Before delegating under subsection (5), the obliged entity is required to satisfy itself of the reliability of the person or company which is to be entrusted with the measures. 2During the course of the cooperation, the obliged entity must satisfy itself, by means of spot checks, of the appropriateness and propriety of the measures adopted by the person or company.
(8) 1Where a contractual agreement as described in subsection (5) is entered into with German embassies, foreign chambers of commerce or consulates, they are deemed suitable by agreement. 2Subsection (7) does not apply.
(9) In cases of delegation under subsection (5), the provisions concerning outsourcing of activities and processes under section 25b of the Banking Act remain unaffected.