National cooperation: Comments and recommendations by the NBB
The national cooperation and exchange of information between Belgian supervisory authorities with competence in the field of AML/CFT have their legal basis in Article 121 of the Anti-Money Laundering Law. 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:
- the CTIF;
- 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, § 3, 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 useful information whenever necessary for the exercise of the powers conferred upon them by or pursuant to the Law.
Such a cooperation and exchange of confidential information with all Belgian authorities concerned can be implemented case by case based on the provisions of the Law whenever this is deemed necessary by one of these authorities. However, 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 Memorandums of Understanding (MoUs). 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).