Explanatory Memorandum to the Anti-Money-Laundering Law of 18 September 2017 - Article 121

Art. 121

National cooperation is covered in Article 49 of Directive 2015/849, which lays down that the Member States must ensure that national authorities have effective mechanisms to enable them to cooperate and coordinate, especially concerning national risk assessments and the establishment of the national policy regarding AML/CFT (referred to in Article 7 of the Directive).

National cooperation in the area of the national risk assessment and of the policy on AML/CFT that takes place between the competent authorities, within the national coordinating bodies, is regulated in Title 1 of Book IV of the draft Law (Articles 68 to 72).

It does however seem useful to provide for an express obligation of cooperation between the supervisory authorities, especially because of the potential overlap of their supervisory areas, particularly when this concerns authorities that supervise obliged entities that are financial institutions (see the comment in draft Article 85).

Paragraph 1 of draft Article 121, which imposes on supervisory authorities the obligation of cooperating and sharing information, will in practice only relate to the supervisory authorities in the financial sector, although the obligation is worded more broadly to apply to all supervisory authorities.

The information that the supervisory authorities referred to could share, with a view to applying the provisions of the present draft Law, can be of any nature whatsoever, including information of a prudential nature. Certain information can after all be relevant both as part of prudential supervision and as part of AML/CFT (for example to assess the ‘fit & proper’ nature of the shareholders and managers, the quality of the internal control system or the compliance function).

The second paragraph of the draft Article moreover sets out that the CTIF-CFI and the supervisory authorities must cooperate and mutually share all information they might possess and that could be useful for the exercise of their respective powers as regards AML/CFT (especially the supervisory and sanctioning powers of the authorities referred to in Title 4).

Given that the supervisory authorities are obliged to cooperate, an express derogation must be provided for from the professional secrecy to which these supervisory authorities are bound, as part of the exercise of their task of supervising compliance with the provisions of this law (cf. draft Article 89) or in another capacity, namely as prudential supervisor of the financial institutions (cf. Article 35 of the Law of 22 February 1998 establishing the Organic Statute of the National Bank of Belgium for the latter). To facilitate cooperation between the CTIF-CFI and the supervisory authorities, the professional secrecy to which these authorities are bound pursuant to Articles 83, § 1 or 89 of the draft Law, or to another legislation, must also be lifted. Consequently, § 3 of draft Article 121 expressly provides for an exception to these professional secrecy obligations to remove any legislative obstacle to cooperation.