Legal analysis of Act 43-05 on the fight against money laundering

Legal analysis of Act 43-05 on the fight against money laundering

Law no. 43-05 as amended and supplemented by Law no. 13.10 and Law no. 145-12 stipulates in its chapter on the prevention of money laundering that those subject to the said provisions include auditors, external accountants and tax consultants, as well as service providers involved in setting up, organizing and domiciling companies.

As part of the prevention of money laundering, the law lays down a number of obligations with which those subject to the law must comply: obligations of vigilance, obligations to report suspicions, and obligations of internal monitoring.

As part of the Obligations de vigilanceIn accordance with the provisions of the French Banking Act, reporting entities are required to collect all information needed to determine and verify the identity of their regular or occasional customers and beneficial owners. A beneficial owner is defined as any natural person on whose behalf the customer acts, or any natural person who ultimately controls or owns the customer when the latter is a legal entity. The information to be collected includes :

  • its name,
  • legal form,
  • its business,
  • head office address,
  • its capital,
  • the identity of its managers,
  • the powers of persons authorized to represent the legal entity vis-à-vis third parties or to act on its behalf by virtue of a mandate
  • beneficial owners.


The question then arises as to what the taxable person must do if it has not been possible to verify the identity of the persons concerned, or if this identity is incomplete or manifestly fictitious. The answer is clearly set out in article 4 of the aforementioned law, where the legislator stipulates that taxable persons must simply not carry out any transactions. This is a firm prohibition.

The legislator also requires reporting persons to verify the following elements relating to the business relationship they are handling for their customers, failing which the legislator strongly requests that they neither establish nor continue said business relationship:

  • Check the purpose and nature of the proposed business relationship;
  • Check the identity of principals when executing transactions where the beneficiary is a third party;
  • Determine and verify the identity of persons acting on behalf of their clients under a mandate;
  • Find out where the funds come from;
  • Pay particular attention to business relationships and transactions carried out by or for the benefit of people from countries presenting a high risk of money laundering or terrorist financing;
  • Ensure that the obligations defined by the present law are applied by their branches or subsidiaries headquartered abroad, unless local legislation prevents this, in which case they shall inform the Unit provided for in Article 14 below;
  • Set up a risk management system;
  • Apply enhanced due diligence measures to high-risk customers, business relationships and transactions, particularly those carried out by or on behalf of non-resident persons;
  • Set up a system to prevent the risks inherent in the use of new technologies for money-laundering purposes;
  • Ensure their customers' files are regularly updated;
  • Ensure that the transactions carried out by their customers are perfectly in line with their knowledge of these customers, their activities and their risk profiles;
  • Ensure special monitoring and implement appropriate vigilance measures for high-risk customer transactions.


Still in the context of due diligence obligations, the legislator has reiterated that persons subject to the law must keep documents relating to transactions carried out by their customers for ten years (10) from the date of execution.

Before moving on to the obligation to report suspicions, the legislator spoke in article 8 of the law about the case where the customer "presents himself in unusual or complex conditions and does not appear to have any economic justification or apparent lawful purpose, must be the subject of special scrutiny by the reporting person." In such cases, taxable persons must obtain information from the customer on the origin and destination of these sums, as well as on the identity of the beneficiaries, and must record details of the transaction on a document which must also be kept for 10 years.

Secondly, within the framework of the Obligations de Déclaration de soupçon, are required to file a suspicious transaction report with the Unité de traitement du renseignement financier:

  • 1) All sums, transactions or attempts to carry out transactions suspected of being linked to one or more of the offences set out in articles 574-1 and 574-2 above. The same applies when it becomes apparent, after the transaction has been carried out, that the sums in question are the proceeds of money laundering.
  • 2) Any transaction where the identity of the principal or beneficiary is in doubt;

The offences set out in Articles 574-1 and 574-2 of the Criminal Code relate to money laundering, and set out the acts constituting this offence. Money laundering is punishable by law:

  • for individuals, from two to five years' imprisonment and a fine of between 20,000 and 100,000 dirhams;
  • for legal entities, a fine of between 500,000 and 3,000,000 dirhams, without prejudice to the penalties that may be imposed on their directors and officers involved in the offences.

Thirdly, as part of the Internal Monitoring ObligationAs stipulated in article 12 of the law, regulated entities must set up an internal system for vigilance, detection, monitoring and management of risks linked to money laundering.

To meet their internal monitoring obligations, reporting entities are required to centralize information on unusual or complex transactions carried out by their customers, and to keep their managers regularly informed, in writing, of transactions carried out by customers with a high risk profile.

The results of this monitoring by regulated persons must be communicated at all times to the financial intelligence processing unit or to any supervisory and control authorities in response to their requests, without being able to object on the grounds of professional secrecy.

Considering that the law confers a whistle-blowing role on persons subject to the law, the legislator comes in the fourth section of the law to speak on the protection it confers on the persons subject to it, their officers and agents, and the Unit and its agents.

Firstly, protection for the professional secrecyThis implies that no action based on professional secrecy may be brought against the person subject to the Act, or against its officers and agents who have made such a declaration in good faith.

In addition, no civil liability action may be brought, nor any sanction pronounced, in particular for slanderous denunciationA report of suspicion may be filed in good faith against a reporting entity, its directors or agents.

Finally, the legislator confirms that no criminal or civil liability claims may be brought against persons subject to the law or their agents, for the performance, in good faith, of the obligations missions vested in them under this Act.

The fourth section of the law presents the sanctions They may be subject to a fine of between MAD 100,000 and MAD 500,000. In particular, they may be sentenced to a fine of between 100,000 and 500,000 dirhams, to be imposed by the body under whose supervision they are placed, in accordance with the procedure applicable to them, for failure to comply with their duties or with professional rules and ethics, as stipulated in article 28 of the law.

When a a serious lack of vigilance, or a shortcoming in the internal control systemIf a person subject to the Act has not fulfilled the obligations arising from this chapter, the Unit shall refer the matter to the authority vested with the power of control and sanction over the said person, with a view to imposing sanctions against that person, on the basis of the legislation applicable to it, as provided for in article 30 of the Act.

The final chapter of the Act sets out special provisions for terrorist offencesThe law provides that this law, together with the obligations of vigilance, suspicious transaction reporting and internal monitoring that it imposes on those subject to it, also applies to cases where the origin of the goods or products is linked to a terrorist offence, or where the said acts or transactions are intended to finance terrorism.

For further information on country-by-country reporting, please contact our legal and tax team.

Faithfully yours,

Ilham Taha-Bouamri
Chartered accountant and tax specialist