Machine Translation of "Act To Amend Act Of 11 January 1993 On The Prevention Of The Use Of The Financial System For The Purpose Of Laundering O..." (Belgium)

Act To Amend Act Of 11 January 1993 On The Prevention Of The Use Of The Financial System For The Purpose Of Laundering Of Capital And Financing Of Terrorism, And The Code Of Corporations (1)

Original Language Title: Loi modifiant la loi du 11 janvier 1993 relative à la prévention de l'utilisation du système financier aux fins du blanchiment de capitaux et du financement du terrorisme, et le Code des sociétés (1)

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belgiquelex.be - Carrefour Bank of Legislation

18 JANVIER 2010. - An Act to amend the Act of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism, and the Code of Companies (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Provisions amending the Act of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism
Art. 2. In Article 1^er of the Law of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism, the words "Council Directive 91/ 308/EEC of 10 June 1991 on the Use of the Financial System for the Purpose of Money Laundering" are replaced by the words "Council Directive 2005/60/EC of the European Parliament and the Council of 26 October 2005 on the Prevention of the Use of the Financial System for the Purpose^er August 2006 on measures to implement the Directive 2005/60/EC of the European Parliament and the Council with regard to the definition of "politically exposed persons" and the technical conditions for the application of simplified obligations of vigilance with respect to customers and the exemption on the basis of an occasional or very limited financial activity".
Art. 3. Section 2 of the Act, amended by Royal Decrees of 24 March 1995, of 28 December 1999, of 21 September 2004, of 15 December 2005, of 1^er May 2006 and 25 February 2007 as well as the laws of 10 August 1998 and 12 January 2004 are replaced by the following:
“Art. 2. § 1^er. The provisions of this Act apply to the following bodies and persons:
1° the National Bank of Belgium;
2° the Caisse des dépôts et consignations;
3° the Post Office for its postal financial services;
4° Belgian credit institutions referred to in Article 1^er the Act of 22 March 1993 relating to the status and control of credit institutions, branches in Belgium of credit institutions under the law of another European Economic Area country, referred to in Title III of the same Law, and branches of credit institutions under the law of countries that are not part of the European Economic Area, referred to in Title IV of the same Law;
4°bis the liquidation bodies referred to in Article 23, § 1^erthe Financial Sector Supervision and Financial Services Act of 2 August 2002;
5° the brokers in banking and investment services referred to in Article 4, 4°, of the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments;
6° the insurance companies established in Belgium and authorized to operate the life insurance activity pursuant to the Act of 9 July 1975 on the control of insurance companies;
7° the insurance intermediaries covered by the Act of 27 March 1995 relating to the intermediation of insurance and reinsurance and the distribution of insurance, which carry out their professional activities, apart from any exclusive agency contract, in the "life" activity group referred to in the Act of 9 July 1975 on the control of insurance companies;
8° Belgian companies whose activities consist of providing investment services or carrying out investment activities, within the meaning of Article 46, 1°, of the Act of 6 April 1995 relating to the status and control of investment enterprises, which require under Article 47, § 1^er, of the same law, an approval as:
a. Scholarships;
b. portfolio management and investment consulting companies;
9° branches established in Belgium by investment companies:
a. under the law of another country of the European Economic Area referred to in Article 110 of the Act of 6 April 1995 referred to above;
b. under the law of countries that do not belong to the European Economic Area referred to in Article 111 of the Act of 6 April 1995 referred to above;
10° the collective investment bodies of Belgian statutory law referred to in Article 6 of the Act of 20 July 2004 relating to certain forms of collective management of investment portfolios provided that, and to the extent that, these bodies ensure the marketing of their securities, within the meaning of Article 3, 9°, c), and 14°, of the same law, without resorting to a third entity under Articles 41 or 43 of the same law;
11° the management societies of collective investment bodies of Belgian law referred to in Part III, Book II, of the Act of 20 July 2004 referred to above, excluding those approved exclusively to exercise the management function of collective investment bodies referred to in Article 3, 9°, (b), of the same Act;
12° branches in Belgium of collective investment management companies:
a. under the law of another country of the European Economic Area referred to in Article 203 of the Act of 20 July 2004 referred to above;
b. under the law of countries that are not part of the European Economic Area, referred to in Article 204 of the Act of 20 July 2004 referred to above;
13° persons established in Belgium referred to in Article 139, paragraph 1^er, 1°, of the Act of 6 April 1995 referred to above and carried out in a professional capacity in the operations referred to in articles 137, paragraph 2, and 139bis, paragraph 2, of the Act;
14° the mortgages referred to in Article 37 of the Law of 4 August 1992 on mortgage credit, which are established in Belgium;
15° market enterprises operating Belgian regulated markets under the Act of 2 August 2002 on financial sector monitoring and financial services, except in respect of their public missions;
16° natural or legal persons referred to in Article 1^er2° of the Act of 12 June 1991 on consumer credit;
17° natural or legal persons issuing or managing credit cards;
18° the enterprises referred to in Article 2, § 1^er, Royal Decree No. 55 of 10 November 1967 organising the legal status of the companies practicing leasing finance;
19° the real estate agents referred to in Article 2 of the Royal Decree of 6 September 1993 protecting the professional title and exercise of the real estate profession and exercising the activities referred to in Article 3 of the same order as well as the geometers-experts referred to in Article 3 of the Law of 11 May 2003 creating federal councils of the geometer-experts, when exercising regulated activities of the real estate agent pursuant to the decree of September 3
20° Guardianship companies referred to in Article 1^er§ 1^erthe Act of 10 April 1990 regulating private and special security, which provides surveillance services and protection for the carriage of values referred to in 3° of the same article;
21° diamond traders referred to in Article 169, § 3, of the Programme Law of 2 August 2002.
§ 2. Individual or legal persons who exercise on occasion or on a very limited scale a financial activity referred to in Article 3, § 2, 2) to 12) and 14), of the Act of 22 March 1993 relating to the status and control of credit institutions, may be exempted by the King, under the conditions that it determines in accordance with Article 37, § 2, paragraph 1^er, 1°, of the application of the provisions of this Act. »
Art. 4. In section 2bis of the Act, inserted by the Act of 10 August 1998 and amended by the Acts of 22 April 1999 and 7 May 1999 and by the Royal Decree of 21 April 2007, which becomes section 3, the following amendments are made:
(a) the 3° is replaced by the following:
"3° individuals or entities that operate in Belgium and are registered as a company reviewer in the public register held by the Institute of Business Reviewers, in accordance with Article 11 of the Act of 22 July 1953 creating an Institute of Business Reviewers and organizing public supervision of the profession of corporate reviewer, coordinated on 30 April 2007";
(b) at 4°, the words "on the list" are replaced by the words "in the register" and, in the Dutch text, the words "alsook de natuurlijke en rechtspersonen" are replaced by the words " alsook de natuurlijke personen of rechtspersonen";
(c) the 5th is replaced by the following:
"5° the lawyers:
(a) when assisting their client in the preparation or implementation of transactions concerning:
1° the purchase or sale of immovable or commercial property;
2° the management of funds, securities or other assets owned by the client;
3° the opening or management of bank accounts or savings or portfolios;
4° the organization of the necessary contributions to the formation, management or management of companies;
5° the formation, management or management of similar legal structures, trusts, trusts or constructions;
(b) or when acting on behalf of their client and on behalf of the client in any financial or real estate transaction. »
Art. 5. Section 2ter of the Act, inserted by the Act of 12 January 2004, which becomes section 4, is replaced by the following:
“Art. 4. To the extent expressly provided for in this Act, the provisions of this Act are also applicable to natural or legal persons who operate one or more Class I random games referred to in the Law of May 7, 1999 on Random Games, Random Games and the Protection of Players. »
Art. 6. In section 3 of the Act, as amended by the Acts of 7 April 1995, 12 January 2004 and 20 March 2007, which becomes section 5, the following amendments are made:
1° paragraph 1^erbis, which becomes paragraph 2, is replaced by the following:
“§2. For the purposes of this Act, the provision or collection of funds, either directly or indirectly and by any means, must be understood by the financing of terrorism, for the purpose of seeing them used or knowing that they will be used, in whole or in part, by a terrorist or terrorist organization or for the commission of one or more terrorist acts. »;
2° in paragraph 2, which becomes paragraph 3, in the French text of 1°, sixth dash, the words "to the traffic of human beings", are replaced by the words "to the trafficking of human beings", in the Dutch text of 1°, twelfth dashes, the word "omkoping" is replaced by the word "lostie" and in the 3°, the words "with violence or threats" are repealed.
Art. 7. In Article 3, § 3, of the same Law, as amended by the Law of 12 January 2004, which becomes Article 6, the words "at Articles 2, 2bis and 2ter" are replaced by the words "at Articles 2, § 1^er, 3 and 4" and the words "the identification of all acts of money laundering and the financing of terrorism" are replaced by the words "the implementation of the means required for the identification of acts of money laundering and the financing of terrorism. »
Art. 8. The title of Chapter II of the Act is replaced by the following:
“Chapter II. Vigilance with respect to effective clients and beneficiaries, vigilance with respect to business operations and relations and internal organization of the organizations and persons referred to in Articles 2, § 1^er, 3 and 4. »
Art. 9. Section 4 of the Act, replaced by the Act of January 12, 2004, which becomes section 7 and is incorporated under a section 1 entitled "Violence with respect to actual clients and beneficiaries and the retention of data and documents", is replaced by the following:
“Art. 7. § 1^er. Organizations and persons referred to in articles 2, § 1^er, and 3 must identify their customers and verify their identity, by means of a probative document, of which it is taken copy, on paper or electronic, when:
1° the customer wishes to establish business relationships that will make him a usual customer;
2° the customer wishes to carry out an operation outside the business relations referred to in 1° above:
a. of which the amount reaches or exceeds 10,000 euros, whether carried out in one or more transactions between which a link appears to exist; or
b. which consists of a transfer of funds within the meaning of Regulation (EC) No 1781/2006 of the European Parliament and of the Council of 15 November 2006 relating to information concerning the donor accompanying transfers of funds;
3° there is suspicion of money laundering or the financing of terrorism, other than the cases referred to in 1° and 2° above;
4° there are doubts as to the veracity or accuracy of the identification data about an already identified client.
For the purposes of paragraph 1^er, 2°, b., does not constitute a transfer of funds within the meaning of Regulation (EC) No 1781/2006 of the European Parliament and of the Council of 15 November 2006 concerning the information concerning the donor accompanying the transfers of funds, the transfer of an amount less than or equal to 1,000 euros, carried out in Belgium, on the account of the recipient of the payment, provided:
1° that the transfer is a payment made pursuant to a contract for the supply of goods or services between the promisor and the recipient of the transferred funds;
2° that the account of the recipient is opened to allow the payment of the supply of goods or services;
3° that the recipient's payment service provider is subject to the obligations of this Act; and
4° that this payment service provider is able, thanks to a unique identification code, to go back to the order donor via the recipient of the payment.
For natural persons, identity identification and verification are related to the name, first name, place and date of birth. Relevant information must also be collected, to the extent possible, regarding the address of the identified persons.
For legal persons, trusts, trusts and similar legal constructions, identification and verification of identity relate to the social name, head office, administrators and knowledge of the provisions governing the authority to engage the legal person, trust, trust or similar legal construction.
Identification also addresses the intended purpose and nature of the business relationship.
§ 2. Organizations and persons referred to in articles 2, § 1^er, and 3 must identify the agents of their customers and verify their identity, by means of a document which is taken copy, in paper or electronic form, prior to the exercise by these agents of their power to hire the client that they represent in the context of business relations or operations referred to in § 1^erParagraph 1^er. Paragraphs 3 and 4 of paragraph 1^er are of application.
§ 3. Organizations and persons referred to in articles 2, § 1^er, and 3 must update, depending on the risk, the identification data of their usual customers and their agents when it appears that the information they hold about them is no longer current. In this case, they conduct a further verification of the identity of these clients or their agents in accordance with paragraphs 1^er and 2.
§ 4. When the bodies and persons referred to in articles 2, § 1^erand 3 cannot perform their duty of vigilance in accordance with paragraphs 1^er, 2 and 3, they can neither tie or maintain a business relationship, nor perform an operation for the client. In this case, they determine whether to inform the Financial Information Processing Unit in accordance with sections 23 to 28.
§ 5. The persons referred to in Article 3, 5°, are not subject to the obligations set out in paragraph 4 when assessing the legal situation of their client or when exercising their duties of defence or representation of that client in judicial proceedings or in judicial proceedings, including advice from the perspective of such proceedings and in particular how to initiate or avoid proceedings.
§ 6. Persons referred to in Article 2, § 1^er, 21°, also apply the obligations set out in paragraphs 1^er to 4 in respect of those of their diamond suppliers for which purchase transactions involve payments that are, in whole or in part, directly or indirectly, made other than by transfer to a bank account held with credit institutions referred to in Article 10, § 1^er1°. »
Art. 10. Section 5 of the Act, replaced by the Act of January 12, 2004, which becomes section 8 and is incorporated in the same section, is replaced by the following:
“Art. 8. § 1^er. Where applicable, organizations and persons referred to in articles 2, § 1^er, and 3 must identify the actual recipient(s) of the client and take appropriate and appropriate risk measures to verify their identity.
For the purposes of this Act, an effective beneficiary must be understood, the natural person(s) on behalf of or for the benefit of which or where a transaction is carried out or a business relationship or the natural person(s) who possess or control the client as a last resort.
Actual beneficiaries under this Act, including:
1° when the customer is a company:
a. the natural person(s) who, as a last resort, possess or control directly or indirectly more than 25% of the shares or voting rights of that corporation;
b. the physical person or persons who otherwise exercise control over the direction of the society.
When the customer or holder of a control participation is a listed company in a regulated market within the meaning of Directive 2004/3 9/EC in a European Economic Area country or in a third country designated by the King under Article 37, § 2, paragraph 1^er3°, where it is subject to advertising requirements consistent with community legislation, it is not required to identify its shareholders or verify their identity;
2° where the client is a corporation, other than a corporation, such as a non-profit foundation and association or is a trust, trust or similar legal construction, which manages or distributes funds:
a. where future beneficiaries have already been designated, the natural person(s) who are beneficiaries of at least 25% of the property of the legal person or of the legal construction;
b. where the natural persons who are the beneficiaries of the legal person or the legal construction have not yet been designated, the group of persons, defined in abstracto, in the interest of which the legal person or construction has been principally constituted or has produced its effects;
c. the natural person(s) who exercise control over at least 25% of the property of a legal person or legal construction.
The identification of the beneficial owner relates to his name and first name, as well as, to the extent possible, the date and place of birth. Relevant information should also be collected, to the extent possible, regarding its address. In addition, adequate and risk-sensitive measures must be taken to verify these data. However, in the case referred to in paragraph 3, 2°, (b), identification refers to the definition in abstracto of the group concerned.
§ 2. Organizations and persons referred to in articles 2, § 1^er, and 3 must update, depending on risk, the identification data of the actual beneficiaries of a client with which they maintain a business relationship when it appears that the information they hold about them is no longer current.
§ 3. Companies, legal entities and legal constructions referred to in § 1^er, paragraph 3, are required to communicate the identity of their beneficiaries to the organizations or persons referred to in Articles 2, § 1^erand 3 with which these companies, legal entities and legal constructions wish to establish a business relationship referred to in Article 7, § 1^erParagraph 1^er, 1°, or carry out an operation referred to in Article 7, § 1^erParagraph 1^erTwo. They are also required to provide, upon request, an update of this information, with a view to enabling them to meet the obligation referred to in paragraph 2.
Organizations and persons referred to in articles 2, § 1^erand 3 verify the relevance and likelihood of the information provided to them.
§ 4. When the bodies and persons referred to in articles 2, § 1^erand 3 cannot perform their duty of vigilance in accordance with paragraphs 1^er and 2, they can neither tie or maintain a business relationship, nor perform an operation for the client. The same is true when customers referred to in paragraph 3 do not provide the required information or provide information that does not appear relevant or likely. In these cases, the organizations and individuals concerned determine whether to inform the Financial Information Processing Unit in accordance with sections 23 to 28.
§ 5. The persons referred to in Article 3, 5°, are not subject to the obligations set out in paragraph 4 when assessing the legal situation of their client or when exercising their duties of defence or representation of that client in judicial proceedings or in judicial proceedings, including advice from the perspective of such proceedings and in particular how to initiate or avoid proceedings.
§ 6. Persons referred to in Article 2, § 1^er, 21°, also apply the obligations set out in paragraphs 1 to 4 with respect to those of their diamond suppliers for which purchase transactions involve payments that are, in whole or in part, directly or indirectly, made otherwise than by transfer to a bank account held with credit institutions referred to in Article 10, § 1^er1°. »
Art. 11. Section 5bis of the Act, inserted by the Act of 10 August 1998 and amended by the Act of 12 January 2004, which becomes section 9 and is incorporated in the same section, is replaced by the following:
“Art. 9. The persons referred to in Article 4 must identify and verify, using a document probating the identity of their customers in paper or electronic form, when they wish to carry out a financial transaction in connection with the game for at least 1,000 euros, whether it is carried out in one or more transactions between which appears to exist a link or, even if the amount is less than 1,000 euros, as soon as it is made in one or more transactions between which there appears to be a link or, even if the amount is less less than 1,000 euros, Article 7, § 1^erparagraphs 3 and 4, and § 4, as well as Article 8, §§ 1^er, 3 and 4 are applicable. »
Art. 12. Section 6 of the Act, amended by the Act of 10 August 1998, the Royal Decree of 20 July 2000 and the Act of 12 January 2004, which becomes section 10 and is incorporated in the same section, is replaced by the following:
“Art. 10. § 1^er. Without prejudice to the use of agents or subcontractors acting on their instructions and under their control and responsibility, the bodies and persons referred to in articles 2, § 1^er3 and 4 are authorized to carry out the duties of vigilance referred to in Articles 7, §§ 1^er, 2 and 3, 8, §§ 1^er and 2, and 9 by a third party inductor of business as long as it is:
1° a credit institution or financial institution referred to in Article 2, § 1^er(1) and (2) of Directive 2005/60/EC, which is established in Belgium or in another country of the European Economic Area, or an equivalent establishment established in a third country designated by the King under Article 37, § 2, paragraph 1^er2°, whose legislation imposes obligations and controls equivalent to those provided for in Directive 2005/60/EC and which are subject to a professional registration obligation recognized by law;
2° an External Auditor, an External Accountant, an External Tax Counsel, an Authorized Accountant, an Chartered Accountant, a notary or a member of an independent legal profession referred to in section 2, § 1^er(3), (a) and (b), of Directive 2005/60/ CE established in Belgium, in another country of the European Economic Area or in a third country designated by the King under Article 37, § 2, paragraph 1^er, 4°, whose legislation imposes obligations and controls equivalent to those provided for in Directive 2005/60/EC and which are subject to a professional registration obligation recognized by law.
Organizations and persons referred to in articles 2, § 1^er, 3 and 4 using a third party business inductor in accordance with paragraph 1^er, require the client to immediately transmit the information available to them regarding the identity of the client and, where appropriate, that of the agents and actual beneficiaries of the client. They also require that the third-party inductor undertake to transmit to them without delay, at the first request, a copy of the evidence by which he checked the identity of these persons.
Under the conditions defined in paragraph 1^erorganizations and persons referred to in articles 2, § 1^er3 and 4 may accept the results of the duties of vigilance which are performed by a third party initiator of business located in a country of the European Economic Area or in a third country, even if the evidence or evidence on which the identification or verification of the latter is concerned differs from those required by this Act or the measures taken pursuant to this Act.
The final responsibility for the execution of duty of vigilance continues to be incompetent to the bodies and persons referred to in Articles 2, § 1^er, 3 and 4 using a third party business inductor referred to in paragraph 1^er.
§ 2. When the organizations and persons referred to in § 1^erParagraph 1^er, 1° and 2°, act as a third party inductors of business, they immediately make available to the organizations or persons with whom the customer is introduced, the information they have under Articles 7 and 8.
If organizations and individuals, established in Belgium or abroad, with whom the client is introduced, request a copy of the identification and verification documents, the organizations and persons referred to in paragraph 1^er transmit it to them without delay. »
Art. 13. Section 6bis of the Act, inserted by the Act of 12 January 2004, which becomes section 11 and is incorporated in the same section, is replaced by the following:
“Art. 11. § 1^er. Organizations and persons referred to in articles 2, § 1^erand 3 are not subject to the identification and identity verification obligations referred to in sections 7 and 8 with respect to the following persons:
1° the client or beneficial owner who is a credit institution or a financial institution referred to in Article 2 of Directive 2005/60/EC, established in Belgium or in another country of the European Economic Area or an equivalent institution established in a third country designated by the King under Article 37, § 2, paragraph 1^er2°, which imposes obligations and controls equivalent to those provided for in Directive 2005/60/EC;
2° the client or beneficial owner who is a listed company whose values are allowed to negotiate on a regulated market within the meaning of Directive 2004/3 9/EC in a country of the European Economic Area or a company listed in a third country designated by the King under Article 37, § 2, paragraph 1^er3°, where it is subject to advertising requirements consistent with community legislation;
3° the actual beneficiaries of group accounts held by notaries or members of another independent legal profession established in Belgium, in another country of the European Economic Area or in a third country designated by the King under Article 37, § 2, paragraph 1^er4°, where they are subject to requirements in accordance with international standards in the fight against money-laundering and the financing of terrorism and where compliance is monitored, provided that information on the identity of the actual beneficiaries is made available to institutions acting as depositaries for the consolidated accounts, upon request; where the client is a person referred to in Article 3, 5°, who cannot provide the information requested by virtue of his or her obligation of professional secrecy, Article 8, § 4, does not apply if he or she certifies in writing or electronically to the depositary institution that the actual beneficiaries of the account in question are solely and exclusively of the clients with whom he or she is in relation to assess their legal situation, or to the benefit of which he or
4° the client or beneficial owner who is a Belgian public authority;
5° Customers who are European authorities or public bodies whose list is established by the King, in accordance with Article 37, § 2, paragraph 1^er5°;
6° Customers who fall under the categories of persons or organizations designated by the King under Article 37, § 2, paragraph 1^er6°.
§ 2. Organizations and persons referred to in articles 2, § 1^erand 3 are not subject to the identity identification and verification obligations referred to in sections 7 and 8 with respect to the following products or transactions:
1° life insurance policies whose annual premium does not exceed 1,000 euros or whose single premium does not exceed 2.500 euros;
2° retirement insurance contracts that do not include a redemption clause and cannot be used as a guarantee;
3° pension plans or similar arrangements for pension benefits to employees, for which contributions are deducted by deduction of wages and whose rules do not allow participants to transfer their rights;
4° the electronic currency within the meaning of Article 3, § 1^er, 7°, of the Act of 22 March 1993 relating to the status and control of credit institutions provided that the maximum capacity of the holder is not more than 150 euros if the support cannot be reloaded or, if the support can be reloaded, provided that a limit of 2.500 euros is fixed for the total amount of transactions over a calendar year. However, sections 7 and 8 apply where the carrier seeks reimbursement of at least 1,000 euros in the same calendar year, pursuant to section 5quater of the Act of 22 March 1993 referred to above;
5° Products and transactions with a low risk of money laundering or the financing of terrorism, whose list is established by the King, in accordance with Article 37, § 2, paragraph 1^er7°.
3. Organizations and persons referred to in articles 2, § 1^erand 3 collect sufficient information in each case to determine whether the client meets the requirements for an exemption referred to in § 1^er.
Exemptions to vigilance obligations in paragraphs 1^er and 2 do not apply if there is a suspicion of money laundering or terrorist financing. »
Art. 14. Section 7 of the Act, amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 12 and is incorporated in the same section, is replaced by the following:
“Art. 12. § 1^er. Without prejudice to the obligations provided for in articles 7 to 9, the bodies and persons referred to in articles 2, § 1^er, 3 and 4 apply, depending on their risk assessment, enhanced vigilance measures with respect to customers, in situations that, by their nature, may pose a high risk of money laundering and the financing of terrorism and, at the very least, in the cases below.
§ 2. Without prejudice to the obligations provided for in articles 7 to 9, the bodies and persons referred to in articles 2, § 1^er, 3 and 4 take the specific and adequate provisions that are necessary to deal with the increased risk of money laundering and the financing of terrorism that exists when they do not have a business relationship or make a transaction with a client that is not physically present at the time of identification.
§ 3. Without prejudice to the obligations provided for in articles 7 to 9, the bodies and persons referred to in articles 2, § 1^er, 3 and 4 take the following specific measures when they do business relations or when they do business with or on behalf of:
1° of politically exposed persons residing abroad, i.e. natural persons who occupy or have exercised an important public service;
2° direct members of the family of persons referred to in 1°;
3° or persons known to be closely associated with the persons referred to in 1°.
For the purposes of this paragraph, "physical persons who occupy or have exercised an important public service" means:
1st Heads of State, Heads of Government, Ministers, Delegate Ministers and Secretaries of State;
2° Parliamentarians;
3° members of supreme courts, constitutional courts or other high courts whose decisions are usually not subject to appeal;
4° members of the accounts and central bank management courses;
5° Ambassadors, business officers and senior officers of the armed forces;
6° members of the bodies of administration, management or supervision of public enterprises.
None of the categories referred to in paragraph 2 covers persons occupying an intermediate or subordinate level. The categories referred to in paragraph 2 include, where appropriate, the functions performed at the community or international level. Subject to the application of enhanced vigilance measures based on an assessment of the risk associated with the client, the organizations and persons referred to in Articles 2, § 1^er3 and 4 are not required to consider as politically exposed, a person who has not held a significant public service, as defined in paragraph 2, for a period of at least one year.
For the purposes of this paragraph, "direct family members of persons referred to in paragraph 1 shall be defined as^er, 1°" :
1° the spouse;
2° any partner considered by the national law of the person referred to in paragraph 1^er1°, like the equivalent of a spouse;
3° children and their spouses or partners; 4° parents.
For the purposes of this paragraph, " persons closely associated with persons referred to in paragraph 1 shall be defined as^er, 1°" :
1° any physical person known to be, in conjunction with a person referred to in paragraph 1^er, 1°, the beneficial owner of a legal person or a legal construction or to maintain any other close business relationship with such person;
2° any natural person who is the sole beneficial owner of a legal person or a legal construction known to have been, de facto, created for the benefit of a person referred to in paragraph 1^er1°.
The specific measures required include:
1° to implement appropriate and appropriate procedures, depending on the risk, so that the client or an effective beneficiary of the client is a politically exposed person;
2° to obtain the authorization of an adequate level of hierarchy before establishing a business relationship with such customers;
3° to take any appropriate action, depending on the risk, to establish the origin of the heritage and the origin of the funds involved in the business relationship or transaction;
4° to ensure enhanced continuous monitoring of the business relationship.
§ 4. Without prejudice to the obligations referred to in Articles 7 and 8 and the exemptions provided for in Article 11, § 1^er, 1°, the bodies and persons referred to in Article 2, § 1^er, which create cross-border relations of bank correspondents with corresponding institutions of third countries are required:
1° to collect sufficient information on the corresponding establishment to fully understand the nature of its activities and to assess, on the basis of information accessible to the public, its reputation and the quality of its monitoring;
2° to assess anti-money-laundering and counter-terrorism controls established by the relevant establishment;
3° to obtain the authorization of an adequate level of their hierarchy before establishing new relationships;
4° to establish, by written agreement, the respective responsibilities of each institution;
5° to ensure, with respect to the "transition accounts" ("required-through accounts"), that the client institution has verified the identity of customers with direct access to the accounts of the corresponding institution and has implemented constant monitoring in respect of them, and that it may provide relevant data regarding these vigilance measures at the request of the corresponding institution.
They can neither tie nor maintain a bank correspondent relationship with a banking company screen, and are required to take appropriate measures to ensure that they do not lease or maintain a bank correspondent relationship with a bank known to allow a banking company screen to use its accounts. »
Art. 15. Section 8 of the Act, amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 13 and is incorporated in the same section, is replaced by the following:
“Art. 13. Organizations and persons referred to in articles 2, § 1^er3 and 4 retain, on any archiving medium, for at least five years after the end of the business relationship referred to in Article 7, § 1^erParagraph 1^er, 1° or after the operation referred to in Article 7, § 1^erParagraph 1^er, 2° or 3°, the identification data of the client and, where applicable, its agents and actual beneficiaries, as well as a copy of the evidence used to verify the identity of such persons in accordance with sections 7 to 9. »
Art. 16. Section 9 of the Act, as amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 14 and is incorporated under a section 2 entitled " Vigilance with respect to business relations and operations, and the preservation of data and documents", is replaced by the following:
“Art. 14. § 1^er. Organizations and persons referred to in articles 2, § 1^er, 3 and 4 must exercise constant vigilance with respect to the business relationship and conduct a careful review of the broken operations and, if necessary, of the origin of the funds, in order to ensure that they are consistent with the knowledge they have of their client, its professional activities and its risk profile.
Organizations and persons referred to in articles 2, § 1^er3 and 4 examine with particular attention, any operation or actions that they consider particularly likely to be related to money laundering or the financing of terrorism, because of its nature or its unusual nature in relation to the activities of the client or because of the circumstances surrounding it or the quality of the persons involved.
§ 2. Organizations and persons referred to in articles 2, § 1^er3 and 4 prepare a written report of the review conducted pursuant to paragraph 1^er. This report shall be transmitted to persons referred to in section 18 for the purpose of reserved, if necessary, the required action, in accordance with sections 23 to 28. »
Art. 17. Section 10 of the Act, amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 15 and is incorporated in the same section, is replaced by the following:
“Art. 15. Subject to the application of the requirement in Article 6, paragraph 4, of the Act of 17 July 1975 relating to the accounting of enterprises, organizations and persons referred to in Article 2, § 1^er, 3, 1° and 5°, and 4 retain, for a period of at least five years from the execution of the operations, a copy of any archive support, records, records and documents of the transactions carried out so that they can be reconstituted precisely. They shall record the transactions carried out in a manner that is capable of responding to requests for information referred to in section 33, within the time limit provided for in that section.
The written reports referred to in article 14, § 2. »
Art. 18. In the same chapter, under section 3 entitled “Internal Organization”, an article 16 is inserted, as follows:
“Art. 16. § 1^er. Organizations and persons referred to in articles 2, § 1^er, 3 and 4 implement adequate internal control measures and procedures to ensure compliance with the provisions of this Act as well as procedures for communication and centralization of information in order to prevent, detect and prevent the conduct of transactions related to money laundering and the financing of terrorism. Internal control procedures will specifically take into account the increased risk of money laundering and the financing of terrorism in the cases referred to in Article 12 or specified by the King under Article 37.
§ 2. Subject to other applicable legislation, Belgian law credit institutions and Belgian law investment companies develop a coordinated program and implement coordinated procedures and organisation for the whole they form with their subsidiaries and branches, with regard to their obligations in the prevention of money laundering and the financing of terrorism.
§ 3. The professional associations designated by the King are granted permission:
1° to use the National Register ID number;
2° access to the data of the National Register of Physical Persons referred to in Article 3 of the Act of 8 August 1983 organizing a National Register of Physical Persons;
3° to take a hard copy or electronic copy of the information consulted in the National Register and to communicate this information to the persons and organizations referred to in Article 2, § 1^er4° to 15°;
for the sole purpose of verification by the persons and organizations referred to in Article 2, § 1^er4° to 15°, in accordance with Article 7, §§ 1^er and 2, the identity of the clients and agents of them, who are natural persons and are not present at the time of their identification, as well as for the purpose of verifying the identity of the actual beneficiaries of the clients, in accordance with Article 8, § 1^er, and the update of the identification data relating to clients, agents and actual beneficiaries of customers, in accordance with Articles 7, § 3, and § 8, § 2.
The professional associations designated by the King shall not have access to the data referred to in paragraph 1^er that provided that a request has been received in this direction from a person or body referred to in Article 2, § 1^er4° to 15°. The professional association consulted shall communicate to that person or body the data that the person or organization must necessarily know in order to fulfil its obligations referred to in paragraph 1^er.
The professional associations designated by the King may jointly or separately create an institution which, in their place:
1° shall be authorized to use the National Register ID number for the purposes referred to in paragraph 1^er;
2° receives access to data from the National Register of Natural Persons referred to in Article 3 of the Act of 8 August 1983 organizing a National Register of Natural Persons, for the purposes referred to in paragraph 1^er;
3° shall be authorized to take a hard copy or electronic copy of the information consulted in the National Register and to communicate this information to the persons and organizations referred to in Article 2, § 1^er4° to 15°, for the purposes referred to in paragraph 1^er.
The institutions referred to in paragraph 3 enjoy the legal personality. Their headquarters and general management are established in Belgium. Without prejudice to the provisions of other laws, they limit their social purpose to the activities referred to in paragraph 3. Without prejudice to the provisions of other laws, these institutions are always held exclusively by professional associations designated by the King.
The persons and organizations referred to in Article 2, § 1^er, 4° to 15°, may, for the purpose of meeting their obligations under paragraph 1^er, use all the information in the National Register that they have received through the professional associations or the aforementioned institutions, process, store and copy it on paper or electronic. »
Art. 19. In the same section, an article 17 is inserted, as follows:
“Art. 17. Organizations and persons referred to in articles 2, § 1^er3 and 4 shall take appropriate measures to sensitize their employees and their representatives to the provisions of this Act. These measures include the participation of interested employees and representatives in special programs to assist them in recognizing transactions and facts that may be related to money laundering and terrorist financing and instructing them on the procedures to be followed in such cases.
Organizations and persons referred to in articles 2, § 1^er, 3 and 4 establish appropriate procedures to verify, in the recruitment and assignment of their employees or in the appointment of their representatives, that they have adequate honourability based on the risks associated with the tasks and functions to be performed. »
Art. 20. In the same section, an article 18 is inserted, as follows:
“Art. 18. Organizations and persons referred to in articles 2, § 1^erand 4 designate one or more persons responsible for the application of this Act within their organization or profession. These officials are primarily responsible for the implementation of the measures and procedures referred to in Articles 16 and 17 and for the examination of written reports prepared in accordance with Article 14, § 2, in order to reserve, if necessary, the required actions under Articles 23 to 28.
The persons referred to in Article 3 shall designate such a person when the dimension of the structure within which they operate justifies it. »
Art. 21. In the same section, an article 19 is inserted, as follows:
“Art. 19. Persons referred to in Article 2, § 1^er, 4°, 6°, 8°, 11°, 13°, 14° and 15°, cannot open a branch or office of representation domiciled, registered or established in a State or territory designated by the King pursuant to Article 27. They may not acquire or create, directly or through a financial company, an insurance company or a joint financial company, a subsidiary carrying on the activity of a credit institution, an investment company or an insurance company, domiciled, registered or established in a specified state or territory. »
Art. 22. Chapter IIbis of the same law, inserted by the law of 12 January 2004, becomes chapter III.
Art. 23. In article 10bis, paragraph 2, of the same law, replaced by the law of 12 January 2004, which becomes article 20, the words "at articles 2, 17°, and 2bis, 1°," are replaced by the words "at articles 2, § 1^er, 19° and 3, 1°, and the words "in writing or electronically" are inserted between the word "immediately" and the words "cell".
Art. 24. Section 10ter of the Act, inserted by the Act of 12 January 2004, which becomes section 21, is replaced by the following:
"The price of the sale by a merchant of one or more goods for an amount of 15,000 euros or more, cannot be paid in cash, whether the sale is carried out in an operation or in the form of fractional transactions that appear related. »
Art. 25. In the title of Chapter III of the Act, as amended by the Act of January 12, 2004, which becomes Chapter IV, the words "between the bodies or persons referred to in sections 2, 2bis and 2ter and "the" are replaced by the word "to".
Art. 26. In section 11 of the Act, as amended by the Acts of 7 April 1995, 10 August 1998, 4 May 1999 and 12 January 2004, which becomes section 22, the following amendments are made:
1° in paragraph 1^er, the words "CTIF" are inserted between the words "Financial Information Processing Unit" and "an authority";
2° paragraph 1^er is supplemented by a paragraph that reads as follows:
"This authority is also responsible for ensuring, in accordance with the specific competences of each authority, effective cooperation and coordination of national authorities, directly or indirectly concerned with the fight against money-laundering and the financing of terrorism";
Paragraph 2 is replaced by the following:
“§2. Without prejudice to the competence of the judicial authorities, this authority is responsible for receiving and analyzing information transmitted by the bodies and persons referred to in Articles 2, § 1^er, 3 and 4, pursuant to Articles 20, 23 to 28, by the authorities referred to in Article 39, pursuant to Article 31, by foreign bodies performing functions similar to its own, within the framework of mutual collaboration and by the administration of customs and accises, pursuant to the Royal Decree of 5 October 2006 bearing certain measures relating to the control of the transborder transport of liquid money and the regulations (EC) No. 188 It shall take all necessary measures, in accordance with articles 20, 23 to 28 and 33 to 35.
The rules relating to the transmission of information referred to in Articles 20, 23 to 28 and 31 and the rules relating to the transmission of information by the customs and access administration may be established by the King, on the advice of the Financial Information Processing Unit. »;
4° in paragraph 3, paragraph 2, the words "in articles 2 and 2bis, 5°" are replaced by the words "in articles 2, § 1^er and 4 »;
Paragraph 4 is supplemented by the following:
"This report contains, as far as it is concerned, all information relevant to the assessment of the effectiveness of the preventive anti-money laundering and the financing of terrorism. »;
6° in paragraph 7, the words " referred to in articles 2 and 2 bis " are replaced by the words " referred to in articles 2, § 1^er, 3, 1° to 4°, and 4 »;
7° the article is supplemented by paragraph 9 as follows:
“§ 9. The civil liability of this authority and its members may only be incurred in the course of the exercise of its legal duties in the event of a dol or heavy fault. »
Art. 27. In section 12 of the Act, as amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 23, the following amendments are made:
1° in paragraph 1^er the words " referred to in Article 2" are replaced by the words " referred to in Article 2, § 1^er," and the words "in writing or electronically" are inserted between the words "they inform" and the words "the cell";
2° in paragraph 1^erthe last sentence is repealed;
Paragraph 2 is replaced by the following:
“§2. If, because of the seriousness or urgency of the matter before it by a statement of suspicion referred to in paragraph 1^er, the Cell considers it necessary, it may object to the execution of any transaction related to this case. The Cell determines the transactions and bank accounts concerned by the opposition.
The Cell shall immediately notify its decision by fax or default, by any other written means, to the bodies and persons referred to in Article 2, § 1^er, which are concerned by this opposition.
This opposition hinders the execution of the operations referred to in paragraph 1^erfor up to two working days from the notification. »;
4° in paragraph 3 the words ", § 1^er," are inserted between the words "subject to section 2" and the words "in the time" and the words "operation" are replaced by the words "operations".
Art. 28. In Article 13 of the Act, amended by the Acts of 10 August 1998 and 12 January 2004, which becomes Article 24, the words ", § 1^er," are inserted between the words "subject to section 2" and the word "who" and the words "in writing or electronically" are inserted between the words "transform information" and the words "of the cell".
Art. 29. Article 14, paragraph 1^erin the same Act, as amended by the Act of 12 January 2004, which becomes section 25, the following amendments are made:
1° the words "in articles 12 and 13" are replaced by the words "in articles 23 and 24";
2° the words "as referred to in Article 2" are replaced by the words "as referred to in Article 2, § 1^er »;
3° the words "in writing or electronically" are inserted after the words "they inform";
4° the last sentence is deleted.
Art. 30. In section 14bis of the Act, inserted by the Act of 10 August 1998 and amended by the Act of 12 January 2004, which becomes section 26, the following amendments are made:
1° in paragraph 1^er, the words "in article 2bis, 1° to 4°," are replaced by the words "in article 3, 1° to 4°", and the words "in writing or electronically" are inserted after the word "immediately";
2° paragraph 1^er is supplemented by a paragraph that reads as follows:
"The persons referred to in Article 3, 1°, 3° and 4° do not transmit this information if they, as part of the exercise of their profession, have been received from one of their clients or obtained on one of their clients when assessing the legal situation of that client, unless they are involved in money laundering or terrorist financing activities, they provide legal advice for money laundering purposes or for the purpose of money laundering »;
3° in paragraph 2, paragraph 1^erthe words "in section 2bis, 5°," are replaced by the words "in section 4" and the words "in writing or electronically" are inserted in paragraph 1^er after the words "immediately" and paragraph 2 after the words "inform";
4° in paragraph 3, paragraph 1^er, the words "in Article 2ter" are replaced by the words "in Article 3, 5°",
5° in paragraph 3, paragraph 2, the words "in article 2ter" are replaced by the words "in article 3, 5°",
6° in paragraph 3, paragraph 2 is supplemented by the words ", unless they are involved in money laundering or terrorist financing activities, they provide legal advice for money laundering or terrorist financing purposes, or they know that the client solicits them for such purposes. »;
7° in paragraph 3, paragraph 3, the words "in article 2ter" are replaced by the words "in article 3, 5°", and the words "in writing or electronically" are inserted after the word "immediately".
Art. 31. In section 14ter of the same law, inserted by the law of May 3, 2002, which becomes section 27, the words "sections 12 to 14bis" are replaced by the words "sections 23 to 26" and the words "and the financing of terrorism" are inserted after the words "money laundering".
Art. 32. Section 14quater of the Act, inserted by the Act of 12 January 2004, is repealed.
Art. 33. In section 14quinquies of the Act, inserted by the Program Law of 27 April 2007, which becomes section 28, the following amendments are made:
1° to paragraph 1^erthe words "at articles 2, 2bis and 2ter" are replaced by the words "at articles 2, § 1^er, 3 and 4" and the words "only in writing or electronically" are inserted after the words "they inform";
2° in paragraph 2, the words "and organizations referred to in Article 2ter" are replaced by the words "subject to Article 3, 5°", and the words "in Article 14bis, § 3" by the words "in Article 26, § 3".
Art. 34. In section 18 of the Act, as amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 29, the following amendments are made:
1° to paragraph 1^erthe words "in articles 12 to 14ter" are replaced by the words "in articles 20, 23 to 28" and the words "organisms referred to in articles 2 and 2bis, 5°, in accordance with Article 10, or by persons referred to in Articles 2bis, 1° to 4° and 2ter" are replaced by the words "organisms and persons referred to in Articles 2, § 1^er3 and 4, in accordance with Article 18 or in default, with respect to persons referred to in Article 3, by such persons themselves";
2° in paragraph 2, the words "at articles 2, 2bis and 2ter" are replaced by the words "at articles 2, § 1^er, and 4".
Art. 35. In section 19 of the Act, as amended by the Acts of 10 August 1998 and 12 January 2004, which becomes section 30, the following amendments are made:
1° the current text, which will form paragraph 1^er, is replaced by the following:
« § 1^er. Organizations and persons referred to in articles 2, § 1^er, 3 and 4 and their leaders and employees as well as the sticker referred to in Article 26, § 3, may in no case bring to the attention of the concerned client or third parties that information has been transmitted to the Financial Information Processing Unit pursuant to Articles 20 or 23 to 28 or that information from the Chief of Money Laundering or Financing of Terrorism is in progress or could be opened.
Where persons referred to in Article 3, 1 and 3 to 5°, try to deter a client from participating in an illegal activity, there is no disclosure within the meaning of paragraph 1^er.
2° the article is supplemented by paragraphs 2 to 4:
“§2. The prohibition in paragraph 1^er does not apply to disclosure to the competent authorities referred to in section 39 or to disclosure for repressive purposes.
§ 3. The prohibition in paragraph 1^er does not apply to the disclosure of information:
1° between credit institutions or financial institutions referred to in Article 2, § 1^er(1) and (2) of Directive 2005/60/EC, established in the European Economic Area or between such institutions and equivalent institutions established in third countries designated by the King under Article 37, § 2, paragraph 1^er, 2°, whose legislation imposes obligations and controls equivalent to those provided for in the Directive, where these institutions belong to the same group within the meaning of Article 2, item 12, of Directive 2002/87/EC, of 16 December 2002 on the supplementary monitoring of credit institutions, insurance companies and investment companies owned by a financial conglomerate;
2° between credit institutions or financial institutions referred to in Article 2, § 1^er(1) and (2) of Directive 2005/60/EC, established in the European Economic Area or between such institutions and equivalent institutions established in third countries designated by the King under Article 37, § 2, paragraph 1^er, 2°, whose legislation imposes obligations and controls equivalent to those provided for in the directive, when these institutions interact with the same client and in the context of the same transaction, provided that the information exchanged concerns the client or the transaction, be used exclusively for the purpose of preventing money laundering or the financing of terrorism and that the recipient institution of the information is subject to equivalent obligations in respect of professional secrecy and
3° between persons referred to in Article 2, § 1^er(3), (a) and (b), of Directive 2005/60/EC, established in the European Economic Area or between such persons and persons exercising the same profession in third countries designated by the King under Article 37, § 2, paragraph 1^er4°, whose legislation imposes obligations and controls equivalent to those provided by the directive,
a. where they operate in the same legal entity or in the same network, i.e. a broader structure to which people belong and share ownership of the same legal entity as well as common management, including in the control of compliance with shared obligations; or
b. where the information is exchanged in relation to the same client and within the context of the same transaction, provided that the information is exchanged for that client or transaction, that it is used exclusively for the purpose of preventing money laundering or the financing of terrorism and that the recipient of the information is subject to equivalent obligations in respect of professional secrecy and personal data protection.
§ 4. The competent authorities in respect of criminal investigations and prosecutions relating to money laundering or the financing of terrorism shall take all appropriate measures to protect against any threat or hostile act the employees of the institutions or persons subject to this Act who report, within the company or the Financial Information Processing Unit, a suspicion of money laundering or terrorist financing. »
Art. 36. In Article 20 of the same Act, amended by the Acts of 10 August 1998 and 12 January 2004, which becomes Article 32, the words "as referred to in Articles 2, 2bis and 2ter, their employees or representatives and the sticker referred to in Article 14bis, § 3" are replaced by the words "as referred to in Articles 2, § 1^er, 3 and 4, their leaders, their employees or their representatives, the sticker referred to in section 26, § 3, as well as the leaders or staff of the authorities referred to in section 39", the words "at articles 12 to 15" are replaced by the words "at articles 20, 23 to 28 or 31", and in the French text, the words "who have made good faith an information" are replaced by the words "of the leader"
Art. 37. In section 21 of the Act, as amended by the Acts of 10 August 1998, 4 May 1999 and 12 January 2004, which becomes section 31, the following amendments are made:
1st paragraph 1^er is replaced by the following:
"The supervisory authorities referred to in section 39 who note during the inspections they carry out with the bodies and persons who fall within their jurisdiction, or in any other way, facts that may be related to money laundering or the financing of terrorism, are required to inform the Financial Information Processing Unit immediately in writing or electronically. »;
2° to paragraph 2, the words "of facts that may constitute evidence of money laundering or of terrorist financing, inform the Financial Information Processing Unit" are replaced by the words "of facts that may be related to money laundering or the financing of terrorism, shall immediately inform the Financial Information Processing Unit in writing or electronically. »
Art. 38. Section 15 of the Act, as amended by the Acts of 7 April 1995, 10 August 1998 and 12 January 2004, which becomes section 33, is replaced by the following:
“Art. 33. When the Financial Information Processing Unit receives information referred to in section 22, § 2, the Cell or any of its members or any of its personnel designated for that purpose by the magistrate who directs it or his alternate may be communicated, within the time that they determine, all additional information that they consider to be useful for the fulfilment of the Cell's mission, by:
1° of all organizations and persons referred to in articles 2, § 1^er3 and 4, as well as the sticker referred to in Article 26, § 3;
2° of police services, by derogation from section 44/1 of the Police Service Act of 5 August 1992;
3° of State administrative services;
4° bankruptcy curators;
5° of the provisional directors referred to in Article 8 of the Bankruptcy Act of 8 August 1997;
6° of the judicial authorities. However, information may not be disclosed to the Cell by an investigating judge without the express authorization of the Attorney General or the Federal Prosecutor and information obtained from a judicial authority may not be communicated by the Cell to a foreign agency, pursuant to section 35, § 2, without the express authorization of the Attorney General or the Federal Prosecutor.
The persons referred to in Article 3, 1°, and 3° to 5°, and the sticker referred to in Article 26, § 3, do not transmit this information if they were received, by the persons referred to in Article 3, 1°, and 3° to 5°, from one of their clients or obtained on one of their clients during the assessment of the legal situation of that client or in the exercise of their mission
Judicial authorities, police services, state administrative services, bankruptcy curators and provisional administrators may initiate a communication to the Financial Information Processing Unit of any information they deem useful in carrying out its mission.
The transmission of information by the Federal Prosecutor's Office in the context of information or instruction related to the financing of terrorism, as well as by the European Commission's European Anti-Fraud Office in the context of an investigation on fraud in the financial interests of the European Economic Area, allows the Unit to exercise its competence in accordance with paragraph 1^er and Article 22, § 2.
The Public Prosecutor's Office shall transmit to the Financial Information Processing Unit all final decisions made in the files that have been transmitted by the Unit pursuant to Articles 23, § 3, and 34.
Art. 39. Section 16 of the Act, as amended by the Acts of 7 April 1995, 10 August 1998 and 12 January 2004, which becomes section 34, is replaced by the following:
"Subject to the case referred to in Article 23, § 3, the Financial Information Processing Unit shall review the information referred to in Article 22, § 2, as well as the examination of information transmitted by the organizations and persons referred to in Articles 2, § 1^erpursuant to Regulation (EC) No. 423/2007.
As soon as this review reveals a serious index of money laundering or the financing of terrorism, including the financing of the proliferation of sensitive nuclear activities or the development of nuclear weapon delivery systems, this information is transmitted to the King's Prosecutor or to the Federal Prosecutor. »
Art. 40. In section 17 of the Act, as amended by the Acts of 7 April 1995, 10 August 1998 and 12 January 2004, which becomes section 35, the following amendments are made:
1° to § 1^erParagraph 1^er, the words "Without prejudice" are replaced by the words "subject", the words ", communications referred to in § 2" are inserted after the words "Without prejudice to the application of the preceding articles" and the words "and notwithstanding any contrary provision" are inserted after the words "Article 29 of the Code of Criminal Investigation";
2° to § 1^er, paragraph 2, the words "or the external expert" are replaced by the words ", the member of the police services, or another officer seconded to her, as well as the external expert to whom she appeals,"
3° to § 2, paragraph 2, the words "to requests for information from the Cell to" are replaced by the words "to communications between the Cell and" and the words "Article 209A of the Treaty of 25 March 1957 establishing the European Community" are replaced by the words "Articles 325 of the Treaty on the Functioning of the European Union";
4° in § 2, paragraph 3, the words "of Article 22" are replaced by the words "of Article 40" and the word "However" is repealed;
5° in § 2, paragraph 4, the words "Articles 12, § 3, and 16" are replaced by the words "Articles 23, § 3, and 34", and the words "or guardianship" are replaced by the words " referred to in Article 39";
6° to § 2, paragraph 5 is replaced by the following paragraphs:
"When this transmission concerns information about money laundering from the commission of an offence related to trafficking in illegal labour or trafficking in human beings, the Cell informs the listener of the work of this transmission.
Where this transmission relates to information relating to money laundering from the commission of an offence that may have an impact on social fraud, the Unit shall inform the Information and Social Research Service, established by section 312 of the Programme Law (I) of 27 December 2006. "
Art. 41. In the same Act, an article 36 is inserted as follows:
“Art. 36. In the case that the Financial Reporting Unit makes a communication to the Crown Prosecutor, the Federal Prosecutor or the authorities referred to in Article 35, § 2, the notifications referred to in Articles 20, 23 to 28 and 31, and the additional information referred to in Article 33 are not part of the file, in order to preserve the anonymity of their authors.
If the persons referred to in Article 35, § 1^er, are quoted to testify in court, nor are they allowed to reveal the identity of the authors referred to in the preceding paragraph. »
Art. 42. The title of Chapter IV of the Act, which becomes Chapter V, is amended as follows: "Performance and control measures".
Art. 43. Section 21bis of the Act, inserted by the Act of 12 January 2004, is repealed.
Art. 44. In chapter V, an article 37 is inserted as follows:
“Art. 37. § 1^er. By deliberately decreed in the Council of Ministers and on the advice of the Financial Information Processing Unit, the King may take the necessary measures to ensure the transposition of Directive 2005/60/EC as well as its directives, regulations and other enforcement measures.
Royal arrests under paragraph 1^er are also taken on the advice of the Banking, Financial and Insurance Commission when persons, organizations or materials under its control are covered.
Royal orders under paragraph 1^er may amend, supplement, replace or repeal existing legal provisions.
Royal orders under paragraph 1^er are repealed in full law when they have not been confirmed by law within 24 months of publication to the Belgian Monitor.
§ 2. The King may determine on the advice of the Financial Information Processing Unit:
1° under the conditions set out in Article 4 of Directive 2006/70/EC on measures to implement Directive 2005/60/EC, the categories of natural or legal persons and the criteria on which natural or legal persons engaged in financial activity on an occasional basis or on a very limited scale are exempt from the obligations imposed by this Act, pursuant to Article 2, § 2;
2° the list of third countries referred to in articles 10, § 1^er, 11, § 1^er, 1°, and 30, § 3, 1° and 2°, of which it is presumed that the legislation imposes obligations and control equivalent to those provided by Directive 2005/60/EC;
3° the list of third countries referred to in Articles 8, § 1^er, 1°, b, and 11, § 1^er2°, of which it is presumed that the legislation imposes advertising requirements consistent with community law;
4° the list of third countries referred to in Article 10, § 1^erParagraph 1^er, 2°, 11, § 1^er, 3°, and 30, § 3, 3°, of which it is presumed that the legislation imposes on notaries or members of another independent legal profession, requirements in accordance with international standards in the fight against money laundering or the financing of terrorism and a control of the respect of these obligations and of which it is also presumed that the legislation requires from the notaries or the accounts of any other independent legal profession held by the institutions
5° the list of customers referred to in Article 11, § 1^er5°, which are European authorities or public bodies and meet all the criteria set out in Article 3.1 of the Directive 2006/70/EC of the Commission of 1^er August 2006 on measures to implement the Directive 2005/60/EC of the European Parliament and of the Council with regard to the definition of "politically exposed persons" and the technical conditions for the application of simplified obligations of vigilance with respect to customers and the exemption on the basis of an occasional or very limited financial activity;
6° the list of customers referred to in Article 11, § 1^er, 6°, which have a low risk of money laundering or terrorist financing and meet all the criteria set out in section 3.2 of the above-mentioned Directive 2006/70/EC;
7° the list of products and transactions referred to in Article 11, § 2, 5°, which have a low risk of money laundering or the financing of terrorism and meet all the criteria set out in Article 3.3 of the aforementioned Directive 2006/70/EC.
Royal orders under paragraph 1^er are also taken on the advice of the Banking, Financial and Insurance Commission when persons, organizations or materials under its control are covered.
§ 3. The King may determine, on the advice of the Financial Information Processing Unit and the Banking, Financial and Insurance Commission, a list of foreign currency transactions that are particularly deemed to be related to money laundering and the financing of terrorism and on which the agencies and persons referred to in Article 2, § 1^ershall prepare a written report to be transmitted to persons referred to in section 18.
§ 4. On the advice of the Financial Information Processing Unit, the King may extend the application of all or part of the provisions of this Act to categories of persons or organizations not referred to in Articles 2, § 1^er, 3 and 4, whose activities may be used for money laundering or terrorist financing purposes. Where applicable, the King may also extend or amend the competent authorities referred to in section 39.
Royal orders under paragraph 1^er are also taken on the advice of the Banking, Financial and Insurance Commission when persons, organizations or materials under its control are covered.
§ 5. On the advice of the Banking, Financial and Insurance Commission, the King may designate the professional associations referred to in Article 16, § 3.
Art. 45. In the same chapter, an article 38 is inserted as follows:
“Art. 38. § 1^er. The control authorities referred to in section 39 shall, by regulation, establish the terms and conditions for the implementation of the obligations set out in chapter II.
This regulation will, if any, be subject to the King's approval.
If these authorities fail to establish the regulation referred to in paragraph 1^er or to modify it in the future, the King is entitled to take or amend this regulation himself.
§ 2. These terms and conditions may authorize the organizations and persons concerned to adjust the scope of these obligations based on the risk associated with the type of client, business relationship, product or transaction. In this case, the institutions and persons concerned must be able to justify to their supervisory authorities and within the framework of Article 39, the fact that the extent of the measures implemented is adequate and appropriate given the risks of money laundering and the financing of terrorism.
By derogation from the provisions of Article 7, § 1^erParagraph 1^erand Article 13, the authorities referred to in paragraph 1^er may authorize, by regulation, the bodies and persons subject to their control and referred to in articles 2, § 1^er, 3 and 4, to retain the references of the evidence required in the identification of the client in place of a copy thereof, in the cases and under the conditions that they determine. »
Art. 46. In the same chapter, an article 39 is inserted as follows:
“Art. 39. § 1^er. Subject to the application of other legislation, the supervisory or guardianship authorities or the disciplinary authorities of the bodies and persons referred to in Articles 2, § 1^er, 1° to 15°, 3 and 4, the Federal Public Service Economy, P.M.E., Average Classes and Energy for the organizations and persons referred to in Articles 2, § 1^er16° to 19° and 21°, and the Federal Interior Public Service for the bodies and persons referred to in articles 2, § 1^er, 20°, implement effective mechanisms for monitoring compliance by these bodies and persons, obligations under sections 7 to 20, 23 to 30 and 33 and those provided for by royal decrees, regulations or other enforcement measures of the same provisions of this Act.
Authorities referred to in paragraph 1^er may exercise control on the basis of risk assessment.
§ 2. Authorities referred to in paragraph 1^er may be communicated by the organizations and persons referred to in articles 2, § 1^er, 3 and 4 of which they take control, all information they consider useful in the manner in which these bodies and persons implement articles 7 to 20, 23 to 30 and 33.
With respect to the financial institutions referred to in Article 2, § 1^erand operators of games of chance referred to in Article 4, the authorities referred to in paragraph 1^er have the power to conduct on-site inspections. »
Art. 47. The title of Chapter V of the Act, which becomes Chapter VI, is amended as follows: "Sanctions".
Art. 48. In section 22 of the Act, amended by the Act of 10 August 1998, the Royal Decree of 20 July 2000 and the Act of 12 January 2004, which becomes section 40 and is incorporated under Chapter VI, the following amendments are made:
1° to paragraph 1^er, the words "the control or guardianship authority or the competent disciplinary authority may, in the event of non-compliance, by the bodies or persons referred to in Articles 2, 2bis and 2ter, the provisions of Articles 4 to 19 or the decrees taken for their execution" shall be replaced by the words "the competent authority referred to in Article 39 may, in the case of non-compliance by the bodies or by the persons referred to in § 2^er3 and 4, articles 7 to 20, 23 to 30, and 33 of this Law, Regulation (EC) No 1781/2006 of the European Parliament and Council of 15 November 2006 relating to information concerning the donor accompanying transfers of funds, or orders made for their execution";
2° Paragraph 3 is replaced by the following:
"These sanctions may be imposed by the Minister of Finance in respect of persons who receive an exemption under section 2, § 2, and who do not respect the conditions under which this exemption is subject, in accordance with section 37, § 2, paragraph 1^er1°. Such sanctions may be imposed by the Minister responsible for the federal public service, where that public service is the competent control authority referred to in section 39. »
Art. 49. In section 23 of the Act, replaced by the Program Act of 27 April 2007, which becomes section 41, the following amendments are made:
1° to paragraph 1^erthe words "in section 10ter" are replaced by the words "in section 21";
2° in paragraph 2, the words "in section 23bis" are replaced by the words "in section 42", and the words "in section 10ter" are replaced by the words "in section 21".
Art. 50. In section 23bis of the Act, inserted by the Program Act of 27 April 2007, which becomes section 42, the following amendments are made:
1° to paragraph 1^erthe words "by section 23" are replaced by the words "by section 41";
2° in paragraph 3, the words "by Article 23" are replaced by the words "by Article 41".
Art. 51. In section 23ter of the Act, inserted by the Program Act of 27 April 2007, which becomes section 43, the following amendments are made:
1° to paragraph 1^erthe words "in section 23" are replaced by the words "in section 41" and the words "in section 23bis, paragraph 1^er," are replaced by the words "in section 42, paragraph 1^er, »
2° in paragraph 2, the words "by Article 23" are replaced by the words "by Article 41".
Art. 52. Chapter VI of the same Act becomes chapter VII.
Art. 53. Section 24 of the Act, replaced by the Act of 12 January 2004, which becomes section 44, is replaced by the following:
“Art. 44. Subject to the application of Article 11, the bodies and persons referred to in Articles 2, § 1^er3 and 4, identify and verify the place and date of birth of natural persons referred to in Article 7, § 1^er, 1°, §§ 2 and 6, with which business relations are already under way on the date of the coming into force of the law of [... 2009] amending the law of January 11, 1993 on the prevention of the use of the financial system for the purposes of money laundering and the financing of terrorism, and the Code of Companies, within a specified time according to the risk and not exceeding five years from the date of the said law. Article 7, §§ 4 to 6, is applicable.
Subject to the application of Article 11, the bodies and persons referred to in Articles 2, § 1^er3 and 4 update, depending on risk, the identification of the actual beneficiaries referred to in Article 8, § 1^er, paragraph 3, clients with whom business relations are already under way on the date of the coming into force of the law of [... 2009] amending the Act of 11 January 1993 on the prevention of the use of the financial system for the purposes of money laundering and the financing of terrorism, and the Code of Societies, within a period not exceeding 2 years from the date of the coming into force of that Act. This period is extended to five years with respect to the identification of place and date of birth. Article 8, §§ 3 to 6, is applicable.
Organizations and persons referred to in articles 2, § 1^er3 and 4 shall take the appropriate and appropriate measures, depending on the risk, to identify the clients referred to in Article 12, § 3, and to implement, with respect to these customers, the specific measures referred to in paragraph 6 of the same paragraph when business relations are already in progress with them on the date of the coming into force of the law of the capital [... 2009] amending the law of January 11, 1993 concerning the prevention
Until the entry into force of a royal decree under Article 37, § 2, paragraph 1^er, 2°, it is presumed, for the purposes of articles 10, § 1^er, 1°, 11, § 1^er, 1°, and 30, § 3, 1° and 2°, that the laws of the Member States of the Financial Action Group on Money Laundering impose obligations and control equivalent to those provided for in Directive 2005/60/EC. »
Art. 54. Chapter VII of the Act becomes Chapter VIII.
Art. 55. Section 25 of the Act becomes section 45.
CHAPTER 3 Provisions Amending the Corporate Code
Art. 56. In the Corporate Code, an article 515bis is inserted as follows:
"Art. 515bis. Any natural or legal person who acquires representative or non-representative securities of the capital, conferring the right to vote in anonymous companies other than those referred to in sections 514 and 515 and who have issued shares to the holder or dematerialized, must declare to that corporation, no later than the fifth working day after the day of the acquisition, the number of titles that it possesses when the voting rights relating to these securities reach a greater quotity
It must make the same declaration, within the same period, in the event of the transfer of securities where, as a result of the assignment, voting rights fall below the above-mentioned threshold of 25 per cent. »
Art. 57. Article 516, § 1^erParagraph 1^er, of the same Code, the words "articles 514 and 515, paragraph 1^er," are replaced by the words "articles 514, 515, paragraph 1^erand 515 bis, paragraph 1^er"
Art. 58. In article 534 of the same Code, the words "articles 514 or 515, paragraph 1^er," are replaced by the words "articles 514, 515, paragraph 1^eror 515 bis, paragraph 1^er"
Art. 59. Article 545, paragraph 1^er, of the same Code, as amended by the Act of 2 May 2007, the words "articles 514 or 515, paragraph 1^er," are replaced by the words "articles 514, 515, paragraph 1^eror 515 bis, paragraph 1^er"
Art. 60. Transitional provision
The natural or legal person who, at the time of the coming into force of this Act, has or controls directly or indirectly more than 25% of the shares or voting rights, shall notify the corporation concerned no later than 6 months from that date, depending on the risk.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 18 January 2010.
ALBERT
By the King:
Minister of Finance,
D. REYNDERS
Minister of Social Affairs and Public Health,
Ms. L. ONKELINX
The Minister of the Interior,
Ms. A. TURTELBOOM
Minister of Justice,
S. DE CLERCK
Minister of Employment and Equal Opportunities,
Ms. J. MILQUET
Minister of P.M.E., Independents, Agriculture and Science Policy,
Mrs. S. LARUELLE
Minister for Business and Simplification,
VAN QUICKENBORNE
The Minister of Public Service and Public Enterprises,
Ms. I. VERVOTTE
Seal of the state seal:
Minister of Justice,
S. DECLERCK
____
Notes
(1) Documents of the House of Representatives:
Doc. 52 1988 (2008/2009):
001: Bill.
002: Annex.
003: Amendments.
004: Report.
005: Text adopted by the commission.
Full report: 15-16 July 2009.
Documents of the Senate:
4-1412 - 2009/2010:
Number 1: Project referred to by the Senate.
N°^s 2 in 3: Amendments.
Number 4: Report.
No. 5: Text adopted by the commission.
No. 6: Draft amended by the Senate and transmitted to the House of Representatives.
Annales of the Senate: December 10, 2009.
Documents of the House of Representatives:
Doc. 52 1988 (2008/2009):
007: Draft amended by the Senate.
008: Amendments.
009: Report.
010: Text corrected by the commission.
011: Text adopted in plenary and subject to Royal Assent.
Full report: 22 December 2009.

Act To Amend Act Of 11 January 1993 On The Prevention Of The Use Of The Financial System For The Purpose Of Laundering Of Capital And Financing Of Terrorism, And The Code Of Corporations (1)

Original Language Title: Loi modifiant la loi du 11 janvier 1993 relative à la prévention de l'utilisation du système financier aux fins du blanchiment de capitaux et du financement du terrorisme, et le Code des sociétés (1)

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18 JANVIER 2010. - An Act to amend the Act of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism, and the Code of Companies (1)

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