Explanatory Memorandum to the Anti-Money-Laundering Law of 18 September 2017 - Article 90
Article 90 of the draft Law transposes Article 61 of Directive 2015/849. It introduces an obligation for all supervisory authorities referred to in draft Article 85 to set up efficient and reliable mechanisms for reporting, by the obliged entity’s managers, members of staff, agents and distributors or by third parties, of supposed or actual breaches by an obliged entity of its obligations for the prevention of ML/TF.
To ensure the efficiency of these mechanisms, the draft provision guarantees the anonymity of the person who makes such a report, vis-à-vis both the obliged entity and third parties.
The provision also guarantees exemption for this person from civil, criminal or disciplinary liability and protects this person from professional sanctions ensuing from submitting such a report to a supervisory authority, on the condition that it was done in good faith. Under the same condition, the draft Law clarifies that this person may not be inconvenienced for having communicated information to the supervisory authority in the context of reporting a suspicious transaction. This provision supplements the exception to the prohibition of informing third parties that a report was made to the CTIF-CFI. This exception, included in Article 56, § 1 of the draft Law, also applies in the context of the reporting mechanism introduced by Article 90 of the draft Law.
Finally, it is clarified that an obliged entity that is aware that the report it is the subject of comes from a member of its staff or one of its agents or distributors, is prohibited from giving this person adverse or discriminatory treatment within the employment relationship or, a fortiori, from terminating this relationship.