Section 2 GwG – Obliged entities, power to issue statutory instruments
(1) For the purposes of this Act, obliged entities mean the following institutions and persons in the exercise of their business or profession:
- credit institutions as defined in section 1 (1) of the Banking Act (Kreditwesengesetz), with the exception of the institutions and companies specified in section 2 (1) nos. 3 to 8 of the Banking Act, and establishments and branches located in Germany of credit institutions whose registered office is situated outside Germany,
- financial services institutions as defined in section 1 (1a) of the Banking Act, with the exception of the institutions and companies specified in section 2 (6), sentence 1 nos. 3 to 10 and 12 and (10) of the Banking Act and German branches and branch offices of financial services institutions whose registered office is situated outside Germany,
- payment institutions and electronic money institutions as defined in section 1 (3) of the Payment Services Supervision Act and German branches and branch offices of comparable institutions whose registered office is situated outside Germany,
- agents as defined in section 1 (9) of the Payment Services Supervision Act and electronic money agents as defined in section 1 (10) of the Payment Services Supervision Act, as well as payment institutions and electronic money institutions whose registered office is in another signatory state to the Agreement on the European Economic Area that are established in Germany via agents as defined in section 1 (9) of the Payment Services Supervision Act or via electronic money agents as defined in section 1 (10) of the Payment Services Supervision Act,
- independent businesspersons who distribute or redeem the electronic money of a credit institution as defined in section 1 (2) sentence 1 no. 2 of the Payment Services Supervision Act,
- financial companies and establishments and branches and undertakings located in Germany of financial companies whose registered office is situated outside Germany, insofar as they do not already fall under numbers 1 to 5, 7, 9, 10, 12 or 13,
- insurance undertakings as defined in Article 13 no. 1 of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335 of 17 December 2009, page 1) and establishments located in Germany of such undertakings whose registered office is situated outside Germany, insofar as they
a) offer life insurance activities covered by this directive,
b) offer accident insurance with premium refund or
c) grant money loans as defined in section 1 (1) sentence 2 no. 2 of the Banking Act.
d) offer capital redemption products, - insurance intermediaries as defined in section 59 of the Insurance Contract Act (Versicherungsvertragsgesetz), insofar as they broker the activities, transactions, products or services covered by no. 7, with the exception of the insurance intermediaries operating under section 34d (6) or
(7) no. 1 of the Industrial Code, and establishments located in Germany of such insurance intermediaries whose registered office is situated outside Germany,
- asset management companies as defined in section 17 (1) of the Investment Code (Kapitalanlagegesetzbuch), establishments located in Germany of EU management companies and of foreign AIF management companies, and foreign AIF management companies for which the Federal Republic of Germany is the member state of reference and which are subject to supervision by the Federal Financial Supervisory Authority under section 57 (1) sentence 3 of the Investment Code,
- lawyers, legal advisors who are members of a bar association, patent attorneys and notaries, insofar as they
a) are involved in planning or carrying out the following activities for their clients:
aa) buying and selling of real estate or business entities;
bb) managing money, securities or other assets;
cc) opening or managing bank, savings or securities accounts;
dd) organising contributions necessary for the creation, operation or management of companies;
ee) creating, operating or managing trusts, companies or similar structures;
b) carry out financial or real estate transactions on behalf of and for the account of their clients,
c) advise clients with regard to their capital structure, industrial strategy or related issues,
d) provide advisory or other services in connection with mergers and acquisitions, or
e) provide advice on tax matters as a business or professional activity, - legal advisors who are not members of a bar association and persons registered under section 10 of the Legal Services Act (Rechtsdienstleistungsgesetz), insofar as they perform activities as defined in no. 10 (a) to (d), except for the performance of collection services as defined in section 2 (2) sentence 1 of the Legal Services Act,
- public auditors, sworn auditors, tax advisers, tax agents and the associations referred to in section 4 no. 11 of the Tax Advisory Act (Steuerberatungsgesetz)
- service providers for companies and for trust assets or trustees that do not belong to the professions listed under nos. 10 to 12, whenever they provide one of the following services for third parties:
a) formation of a legal person or partnership,
b) acting as a director or manager of a legal person or partnership, acting as a partner of a partnership or acting in a similar position,
c) providing a registered office, a business, administrative or correspondence address, and other related services for a legal person, a partnership or a legal arrangement as defined in section 3 (3),
d) acting as a trustee of a legal arrangement as defined in section 3 (3),
e) acting as a nominee shareholder for another person other than a company listed on an organised market as defined in section 2 (11) of the Securities Trading Act (Wertpapierhandelsgesetz) that is subject to transparency requirements with regard to voting rights consistent with Community law, or subject to equivalent international standards,
f) arranging for another person to perform the functions described in b), d) and e) above; - estate agents,
- organisers and brokers of games of chance unless they are
a) operators of gambling machines within the meaning of section 33c of the Industrial Code,
b) clubs that carry on the business of a totalisator within the meaning of section 1 of the Race Betting and Lottery Act (Rennwett- und Lotteriegesetz),
c) lotteries that are not held on the internet and for which the organisers and brokers hold a state-issued license from the respective competent authority in Germany,
d) social lotteries and
- traders in goods, persons acting as intermediaries in the trade of works of art and persons storing works of art, where this storage is carried out by free ports.
(2) 1The Federal Ministry of Finance may, by means of a statutory order not requiring the consent of the Bundesrat, exempt from the scope of this Act obliged entities under subsection (1) nos. 1 to 9 and 16 which engage in financial activities that do not qualify as money remittance within the meaning of section 1 (1) sentence 2 no. 6 of the Payment Services Supervision Act only on an occasional or very limited basis and represent a low risk of money laundering and terrorist financing if - the financial activity is limited to individual transactions not exceeding the amount of €1,000 in absolute terms per customer and individual transaction,
- the total turnover of the financial activity does not exceed 5 per cent of the total annual turnover of the obliged entity in question,
- the financial activity is merely an ancillary activity related to the main activity pursued and
- the financial activity is only pursued for customers of the main activity, and not for the general public.
2In this case, it must notify the European Commission in a timely manner.
(3) 1For courts that conduct public auctions, the identification and notification obligations referred to in parts 3, 5 and 6 and the obligation to cooperate with the Financial Intelligence Unit apply, with the necessary modifications, to compulsory auctions, by way of compulsory enforcement, of real property, of ships recorded in the shipping register, of ships under construction that are recorded or can be recorded in the shipping register, and aircraft, insofar as transactions with cash payments of €10,000 or more are carried out. 2The purchaser is to be identified immediately after acceptance of the successful bid, but at the latest when the cash bid is deposited; it is not necessary to elicit the place of birth and nationality of natural persons or the names of all members of the representative body or of all legal representatives of partnerships and legal persons.
(4) 1For authorities and public corporations and institutions that conduct public auctions, the identification and notification obligations referred to in parts 3, 5 and 6 and the obligation to cooperate with the Financial Intelligence Unit apply, with the necessary modifications, insofar as transactions with cash payments of €10,000 or more are carried out. 2Sentence 1 does not apply in cases where seized assets are realised in the course of compulsory enforcement. 3The purchaser is to be identified after acceptance of the successful bid, but at the latest when the cash bid is deposited. 4Authorities and public corporations and institutions subject to an obligation under sentence 1 may engage third parties to fulfil their obligations under sentence 1.