National cooperation: Comments and recommendations by the NBB
Book IV of the Anti-Money Laundering Law includes a Title 5, inserted by the Law of 20 July 2020, which is devoted to the cooperation between the relevant authorities and defines the limits of the professional secrecy to which they are bound, in particular by lifting it where it could constitute an obstacle to cooperation. Similarly, Article 36/13 of the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium sets out the exceptions to the NBB’s obligation of professional secrecy which are applicable in the context of its mission to prevent money laundering and terrorist financing. Book IV, Title 5 of the Anti-Money Laundering Law comprises three chapters: the first containing provisions common to the two following chapters (Articles 120/2 and 120/3), the second one pertaining to national cooperation (Articles 121 to 121/2) and the last one to international cooperation (see the page “International cooperation”).
1. Provisions common to national and international cooperation
Article 120/2 of the Anti-Money Laundering Law defines a number of concepts used in Title 5. This provision should be read in conjunction with Article 4, 17° of the Anti-Money Laundering Law, which in particular defines the concept of “supervisory authorities” as the authorities referred to in Article 85 of the Law. On the basis of this definition, Article 120/2 specifies two categories of supervisory authorities in particular: the “financial supervisory authorities” (1°), on the one hand, and the “supervisors” (7°), on the other. This distinction is theoretical in Belgium: both terms refer to the same authorities, namely the NBB, the FSMA and the FPS Economy. They will sometimes be qualified as supervisors and sometimes as financial supervisory authorities, depending on whether reference is made to their competence to supervise compliance with anti-money laundering provisions, or with rules of a financial nature, also known as “prudential” rules when referring to the rules supervised by the NBB.
Article 120/3 of the Law introduces a principle of finality for the financial supervisory authorities in relation to the way they use the confidential information of which they become aware in their capacity as AML/CFT supervisory authority. The same principle is also expressed in Article 36/12/4 of the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium.
2. Provisions specific to national cooperation
The national cooperation and exchange of information among (Belgian) supervisory authorities and between (Belgian) supervisory authorities and CTIF-CFI have their legal basis in Article 121 of the Anti-Money Laundering Law (which was included in the Law from its inception). All Belgian supervisory authorities are henceforth bound by a legal obligation of professional secrecy equivalent to the obligation that applies to the NBB, thereby removing all legal barriers to the exchange of confidential information required for exercising supervision.
In practice, the NBB cooperates with the following Belgian authorities in particular:
- the FSMA;
- the FPS Finance (Treasury);
- the FPS Economy.
The cooperation with the FSMA, the FPS Finance (Treasury) and the FPS Economy is particularly important for ensuring the overall coherence of supervisory actions when multiple financial institutions belonging to the same group fall within the competences of different supervisory authorities or when a single financial institution falls under the supervisory competences of two authorities simultaneously. In the context of this cooperation, authorities should exchange all information useful for exercising their respective supervisory powers, particularly as regards:
- the governance and organisational arrangements of the financial institutions concerned and the assessment thereof by the authorities;
- the policies, procedures and internal control of these financial institutions and the assessment thereof by the authorities;
- the information provided by the financial institutions, particularly as part of the ad hoc or periodic reportings required by these authorities;
- these authorities’ assessment of the ML/FT risks associated with these financial institutions;
- the authorities’ findings concerning these financial institutions’ compliance with AML/CFT obligations;
- the supervisory actions envisaged or performed by these authorities, the results thereof and the decisions that could be taken on that basis;
This cooperation could also lead to coordinated or even joint control actions. For instance, representatives of the FSMA, of the FPS Finance (Treasury) or of the FPS Economy could, where relevant, be involved in on-site AML/CFT inspections carried out by the NBB’s services, or vice versa. This cooperation is without prejudice, however, to the legal supervisory powers respectively conferred upon each of these authorities with regard to the financial institutions concerned.
The NBB’s cooperation with CTIF-CFI is different from that with the other three aforementioned Belgian authorities in that CTIF-CFI’s tasks are of a different nature than those assigned to the NBB. As a “financial information unit”, CTIF-CFI does not exercise supervision of the obliged financial institutions and therefore does not necessarily have accurate information e.g. on financial institutions’ governance, organisation, internal procedures, etc. However, since CTIF-CFI receives reportings of suspicions from financial institutions, it could be alerted by the atypical reporting behaviour of certain institutions (e.g. systematically late reportings of suspicions or systematically late replies to CTIF-CFI’s requests for information, regularly deficient and incomplete reportings, reportings that are not based on suspicions, etc). Such information is inherently useful for the exercise of the NBB’s supervisory powers.
To ensure that such information is communicated to the supervisory authorities whenever useful, on the one hand, Article 83, § 2, 3°, of the Anti-Money Laundering Law lifts the professional secrecy legally imposed on CTIF-CFI to enable it to provide the supervisory authorities with all information useful to them for exercising their supervisory and sanctioning powers. On the other hand, Article 121, § 2, of the Anti-Money Laundering Law creates a duty of cooperation between CTIF-CFI and the Belgian supervisory authorities, in particular the NBB, and stipulates that they should cooperate and exchange all information useful for the exercise of the powers conferred upon them by or pursuant to the Law.
In order to concretely and efficiently organise this national cooperation and these exchanges of information and, where appropriate, to determine the minimum frequency of these exchanges, the authorities concerned may consider it appropriate to specify the terms in a Memorandum of Understanding (MoU). Thus far, the NBB has signed MoUs with the FSMA (see the General Memorandum of Understanding for collaboration of 14 March 2013) and with CTIF-CFI (see the Protocol defining the modalities of cooperation and information exchange of 17 September 2019 on the previous page).
In addition, on 17 June 2021, the professional associations representing the financial sector, the supervisory authorities (including the NBB), CTIF-CFI and the Treasury signed a Memorandum of Understanding for collaboration to create a platform for a public-private partnership on the prevention of money laundering and terrorist financing (the so-called “AML platform”). This platform is intended to increase the efficiency of AML/CFTP by facilitating the exchange of information and consultation between its participants. However, it is without prejudice to any pre-existing consultation structures and channels, in particular (i) the AML/CFT coordination bodies referred to in the Anti-Money Laundering Law, which are comprised exclusively of public authorities (including the NBB) and whose main purpose is to prepare the “national risk assessment” required by the Law, and (ii) the usual modes of bilateral consultation, particularly the consultation between the NBB and the professional associations of the financial sector. The AML platform is tasked, among other things, with proposing guidelines and providing feedback on the implementation of the legal AML/CFTP requirements, in particular those related to the detection and reporting of suspicious transactions.