Protection of reporting persons
Comments and recommendations by the NBB
1. Exemption from liability for reporting persons
Article 57 of the Anti-Money Laundering Law provides on the one hand that the disclosure of information in good faith to CTIF-CFI shall not constitute a breach of any restriction on disclosure of information imposed by contract and shall not lead to any adverse or discriminatory employment action. On the other hand, immunity remains intact even if the reporting person was not precisely and clearly aware of the predicate criminal activity, and even if it appears a posteriori that no illegal activity is related to the transaction that was reported to CTIF-CFI.
Thus, for example, if a financial institution suspected or had reasonable grounds to suspect that the funds are of illicit origin, which may involve tax fraud, it may not be held liable by the customer for not having determined previously that it concerned a case of serious fiscal fraud.
It should be specified however that the reporting must be considered to have been made in good faith. This means that the reporting may not have been carried out with the intention of harming the customer and that it may not be based on information that the entity knew was incorrect. Good faith also implies that the obliged entity has not committed any manifest breach of the obligation of careful examination provided for in Article 35, § 1, 1° of the Anti-Money Laundering Law, or of its obligation to analyse atypical transactions, in accordance with Article 45, § 1 of that Law. Good faith implies, in particular, that it cannot be considered that the reporting financial institution should have known or, in any case, could not have been unaware that the transactions for which suspicions were reported, were not related to money laundering or terrorist financing. This presupposes that, in their examination of the transaction concerned, the AMLCOs of the financial institutions take appropriate account of all relevant information relating to the customer, the business relationship and the transaction held by the financial institution. See in this regard the page “Analysis of atypical facts and transactions”.
2. Anonymity of reporting persons
Article 58 of the Anti-Money Laundering Law aims to protect reporting persons against threats or hostile actions. Thus, it is legally prohibited for the Public Prosecutors, investigating judges, foreign services that are counterparts of CTIF-CFI, OLAF, the Prosecutor at a labour tribunal, SIRS-SIOD, the Minister of Finance, State Security Service, the General Intelligence and Security Service of the Armed Forces and OCAM-OCAD to obtain a copy of the suspicious transaction reports, even when CTIF-CFI provides them with information.
In practice, when CTIF-CFI receives information, it cross-references it with information transmitted or requested from the authorities, institutions and obliged entities that the law allows it to question. Consequently, if the file is transmitted to the Public Prosecutor's Office or to the authorities mentioned above, it is based on multiple sources of information without the original reporting itself being included. When the members of CTIF-CFI or members of its staff, members of the police services and other officials seconded to CTIF-CFI, or external experts it calls upon, are summoned to testify in court, they are also not authorised to disclose the identity of the authors of the suspicious transaction reports.
In addition, the anonymity of AMLCOs who report suspicious transaction and of the financial institutions that employ them is further strengthened by Article 59 of the Anti-Money Laundering Law, which provides that the supervisory authorities competent for investigations and prosecutions, such as CTIF-CFI or the Public Prosecutor's Offices, shall take specific measures to ensure that the AMLCOs are not exposed to possible threats or hostile actions. Please refer to the Explanatory Memorandum of the Anti-Money Laundering Law for more information on this subject.
3. Protection of judicial authorities
The protection of AMLCOs who report suspicious transactions and of the financial institutions that employ them is further strengthened by Article 59 of the Anti-Money Laundering Law, which provides that the authorities competent for investigations and prosecutions, such as CTIF-CFI or the Public Prosecutor's Offices, should take specific measures to ensure that reporting persons are legally protected from any threats, retaliatory measures or hostile actions.
Reporting persons that would be exposed to such threats, retaliatory measures or hostile actions or to adverse or discriminatory employment actions for having reported a suspicion of ML/FT, internally or to CTIF-CFI, may furthermore file a complaint with the competent authorities, without prejudice to the additional possibility offered to this entity to make use of the reporting mechanism set up by the NBB pursuant to Article 90 of the Anti-Money Laundering Law (external whistleblowing).