Proposition 52K1988

Projet de 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.

General information ¶

Submitted by

CD&V the Van Rompuy government

Submission date

May 13, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive fraud organised crime criminal law terrorism money laundering

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Voted to reject

Vooruit

Abstained from voting

LDD FN VB

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Discussion ¶

July 15, 2009 | Plenary session (Chamber of representatives)

Full source

Mr Guy Coëme refers to his written report. Mr Van Campenhout is registered for the general discussion but is not present.

The amendment of Mr Van Campenhout and the majority groups was approved in the committee. Therefore, we should not repeat what was said in the commission. Mr Van Campenhout refused to intervene. The amendment has been approved in the committee and therefore does not need to be repeated in the plenary session.

Mr. Speaker, colleagues, I have prepared a very long presentation, but given the massive interest, I will keep it very brief.

With this sixth item of the agenda, we are actually introducing the third money laundering directive. The opportunity is also used to coordinate the law of 11 January 1993, which promotes readability and which is also a very good thing in terms of quality of legislation. Three points were discussed in the Committee on Finance and I would like to give a brief explanation.

The first concerns the identification obligation of the client. As regards the obligation to identify the client with whom a business relationship is ⁇ ined, the final beneficiaries of the legal entities are precisely defined. This makes it possible to determine exactly which natural persons are exactly considered to exercise control over the legal entity concerned. In addition, and that is important, a tightened customer survey is introduced with regard to politically prominent individuals. You and I are subject to this, it is important to emphasize this.

Whatever matters there, was just appointed by Mr Van Biesen and relates to the diamond sector. Where initially in the draft law there was an identification obligation for suppliers for all transactions, we now only provide for an identification obligation when transactions are paid in cash. This step also goes beyond what was provided for in the Third Anti-Money Laundering Directive. In this way we can give a clear signal that we consider the diamond sector an important sector, but that there must also be the necessary regulation in it.

A second point, which has received due attention in the committee and to which we would like to pay due attention again, concerns the exception provided for legal advice given by lawyers, notaries, court enforcement officers and the numerical professions. Colleagues, the reporting obligation in the preventive money laundering law extends to very serious criminal offences: drug trafficking, human trafficking, mafia, financing of terrorism.

This legislation also includes serious and organized tax fraud, using ⁇ complex mechanisms or procedures of international scale. Ladies and gentlemen, let us be clear. Even in the event that a tax consultant is asked for advice to organize the establishment of an internationally organized tax fraud, the identification and reporting obligation remains unshorted.

I know that there were necessary doubts about this in the committee, but we asked the minister for it. The identification and reporting obligation remains for the tax advisors to whom advice is requested. This also applies to others, such as notaries and lawyers. I did not target anyone in particular, Mr. Van Biesen.

Finally, our group wishes to share the concern that exists with reporting entities and individuals, namely the legitimate expectation that their anonymity will be guaranteed after they have made their report and when a criminal effect is given.

If a tax consultant is sought by someone with less good intentions in the field of money laundering and, as it should be, reports it, then I can imagine that it is not really pleasant if he learns afterwards that his name appears in the criminal file, especially if one knows that it is often not specifically small boys.

Until now, the anonymity is guaranteed by an informative note drawn up by the CFI and with which the College of Attorneys-General has agreed. We would rather see that, like in France, anonymity is legally anchored. As the list of undertakings and persons subject to this Act is sensitively expanded, thereby applying the identification and reporting obligation also to relationships that are more personal and direct, I consider it necessary to provide a legal basis for the anonymity obligation.

I gave the example in the committee. An employee at a banking institution may more or less hide behind the identity of the bank. When it comes to a notary or a lawyer, the client relationship is much more personal and then it is understandable that especially those persons have more interest in guaranteeing their anonymity.

I know that the legal protection of anonymity requires a thorough debate, within the framework of Article 75bis of the Code of Criminal Procedure and the rights of defence, guaranteed in Article 6 of the ECHR. Per ⁇ the discussion will also arise following the discussion of the Social Criminal Code, which guarantees the anonymity of the applicant of a complaint of a social crime. I therefore think – which is a call to the Justice Committee – that within the framework of the discussion of the Social Criminal Code the discussion on the regulation on anonymity should be carried out and that a conclusive answer should be given.

I would like to start with it now because from our group I want to emphasize the importance of this discussion.

Mr. Speaker, colleagues, these are for us the main strengths and focus points of this draft, which we will of course approve with great pleasure.

Today we are transposing a European directive into Belgian law that changes the abuse of the financial sector for money laundering and the financing of terrorism.

Laundering is not only ethically disproportionate, it is also an economic problem. It falsifies the market. It also causes serious damage to growth and consumer confidence in the market. The financial crisis has allowed us to put a pile and perk on a number of discharges. With the Committee on Tax Fraud and a special committee for addressing the banking crisis, we have provided an answer.

All actors in the field are already being asked to provide guidance to tackle this crisis. The bill, in the original directive, also proposes to impose all numerical professions to report suspicious transactions. That is the situation today. All professions are actually required to report suspicious transactions. This happens, if one looks at the figures, but only in a very small percentage of the cases. The Financial Information Processing Cell only reports about 50 cases out of a total of 15,500.

For this reason, the Committee on Tax Fraud recommended that all advisors be obliged to cooperate in the fight against fraud. This is also signed and supported by all participants in the tax fraud committee. However, if one looks at the bill proposed today, one sees a weak point, namely Article 17.

Article 17 of the draft law weakens the reporting obligation for numbering professions. That weakening is not only unnecessary and unnecessary, but, given the current reporting figures, is actually also avenging and worrying.

It is worrying because, instead of being consistent, instead of following this majority and this Parliament’s own opinions, one is simply going to deviate from it. What was all this work for?

She is also worrying because it completely passes ...

Mr. Speaker, Mrs. Almaci, with all respect, you know that we have followed the work of the Investigative Committee on Tax Fraud with great emphasis. We also endorsed all the elements and recommendations that were made there. What you say here today does not match the truth. Let’s be honest, the reporting obligation for the numerical professions has never been as large as today.

Let’s be honest, we’ve signed charters with every numerical profession, with the various departments, during the negotiations we’ve been conducting. This happened under Mr. Clerfayt and his predecessor, Mr. Jamar. We have work resistance in that area.

When there are few reports – or in your eyes too few – I can tell you today that a large part of tax fraud is being combated by the tax administration together with the numerical professions. It is happening much more than before. I am firmly convinced that this result will be repeated more and more in the future.

In other words, I have absolutely no message to the story that you and later also Dirk Van der Maelen will bring – without wanting to anticipate it but we already know what he is going to say – namely that the reporting obligation for the numerical professions has been reduced. I tell you that the cooperation between the tax administration and the numerical professions has never been so great as it is today. Never before have the results been so good.

In other words, with this legislation, we do not have a reduction in the activity of the numbering professions. Today, we have not acted in any way contrary to our work in the Committee on Combating Tax Fraud.

Dear colleague Van Biesen, that is a very bizarre interpretation. There has been a weakening in Article 17 of the Directive. A professional secrecy is granted to the numerical professions that did not previously have it. They are partly placed at the same level as the legal profession, something that, by the way, the Order of the Flemish Balies also indicated in the hearing.

You say it will get even better in the future because there is a weakening. This is the world on his head. It is very worrying because what you say completely transcends the objection of the Order of the Flemish Balies, more specifically the argument that by this bill seven professions including auditors, accountants and tax consultants are granted a professional secrecy for determining the legal position of the client. That undermines the professional secrecy of the lawyer and it gives the numbering professions a function they have not legally seen.

The comments of the Flemish Balais, however well-meaning they may have been, are only and exclusively about the protection of their profession as a lawyer and possibly legal consultant. In other words, it went so far that tax consultants and accountants would no longer have the possibility to recommend people to work in a particular legal structure, being to set up a company, if they have come to a certain level of self-employed activity.

That is, of course, totally contrary to our fundamental element, in particular the search for the least loaded road. If we can advise our people to step out of independence at some point and to go to a corporate form to follow the least burdened path, then that is still the most sensible way we can advise them. That is fully in line with our jurisprudence and our legislation, namely the Brepols principle, that the least taxed way is the logical way to go for every citizen in this country and for every company.

Mr. Van Biesen, it is clear that you feel personally addressed. Given your background, I can imagine that.

Accountants, accountants or corporate auditors have not ⁇ legal education. Furthermore, they have no right to receive assistance from their client regarding rights.

Lawyers and the seven professions mentioned are not directly comparable. They do not have the same task and function, and objectively, they do not have a comparable service in terms of legal advice.

That is the weakness of this bill. The question is why they should then enjoy similar legal exceptions. That is not logical. This is a deficiency that you yourself have entered into the law to provide opportunities to certain people.

The first argument is the following. There have been statements made in the committee that shed a specific light on this case and this discussion. Ladies and gentlemen, don’t let you blast blasts. What lies ahead is a political choice, the choice to value or undermine your own work in the committees.

This is illustrated by the response given, among other things, by the Minister of Finance to the criticism of the Flemish bill. First and foremost, it is said that numerical professions are not financial professions. This is new to me.

A second argument is as follows. It is referred to abroad. In all countries around us, the exception is applied. So, to avoid experiencing a competitive disadvantage – let’s call a cat a cat – we must vote for that exception. This is the world on his head.

The Minister of Finance has literally said that the economic activity should not be too disadvantaged by this legislation. In other words, a little laundry is allowed and so we should be able to include that exception in our legislation. That is the essence of this discussion.

It was estimated that there is 30 billion euros of tax fraud in our small country. There is a financial crisis as a result of the incredible principle in which one looked at the other and thought that if the other were allowed to pay out high bonuses, he was allowed to do so.

There has been a Committee on Fiscal Fraud that has given specific advice to make control more waterproof and stricter. We have a special committee for the Banking Crisis and a committee-Lamfalussy that want to finally put an end to this type of practice, with the latter being lowered because another country is doing it too.

I will give the concrete example of France where that weakness has been removed from the law. However, this is all of no tel. After all, we do not want or dare to raise the threshold and organize a complete and closing fight against the money laundering operations.

Whitening operations are allowed, but with moderation. That is what you say today. This is our country and our work unworthy.

Colleagues, could we not, given that intense work, demonstrate a little more ambition? You have just said that this article 17 is effectively unnecessary. Should we not strive to raise the barrier for all countries and support France in its initiative? Should we not ask ourselves this question, given the beautiful principles that we all endorse in the various committees? However, when it comes to point-by-point, we refuse to translate them into real legislation. At the only moment that it really matters, at the only moment that you can really decide about change here with your voice, you weaken your own work.

It seems that the majority here collectively suffers – which is actually not surprising given the past two years – from a Calimero effect, a chronic lack of persistence and consequence that undermines all confidence in the proper approach to the problems we face. We want to intensify the fight against tax fraud, as long as we do not strike anyone in the head and as long as there is a backdoor here and there.

Let us be clear that Article 17 is the weak point of this law. I call on everyone in the committees concerned, who has worked to change the current situation and has even a small piece of profession, to approve our amendments. This allows to eliminate the unnecessary – to use the argumentation of Mr Van Biesen – weakening of the reporting obligation and make this law complete and concluding.

Mr. Speaker, colleagues, I will begin by reading a quote for you. I will tell you later who is the author of the quote. Listen to me, colleague Van Biesen. “In general, there is no serious and organized tax fraud without the cooperation of a consultant. Only the latter can conceive and put into practice the complex structures to avoid taxes. It is therefore unacceptable that consultants would lend themselves to such forms of tax engineering. Nor can it be accepted that they close their eyes to certain misconduct and thus facilitate tax fraud rather than intervene.”

Colleagues, this is the literal reflection of the words of government commissioner Zenner in 2002.

I have already said this in the committee. In Belgium there is not only the voice of one of your predecessors, Mr. Secretary of State. Currently, there is a working group within the OECD under the title Tax Intermediaries. Within the OECD, the different tax administrations work together because they have all come to the conclusion that large organized fraud requires – I will say it somewhat unfriendly – pressure on the numerical professions. Otherwise, the phenomenon of large-scale organized tax fraud will never be effectively addressed.

On behalf of Mr. Van Biesen, I would like to recommend no. Read Article 48 of the Fraud Commission: “The advisors, numerists, lawyers, notaries, banks, etc., are obliged to cooperate in the fight against fraud by introducing reporting rules and by obliging them” – listen carefully – “to report tax and organized fraud to the CFI”.

A final element before I begin my presentation: there were 15,500 reports in 2008, of which 47 came from the numerical professions. Mr. Van Biesen, you have since, even without blushing, claimed that there was a growing cooperation between the tax administration and the numerical professions. 47 of reports.

Did you know that in the Netherlands this is 12 times more? Did you know that in the Netherlands, due to the reporting obligation of the numbering professions, after the banks, the income is the highest figure? In Belgium, we do not dare to give these figures. 53 percent comes from the banks, 28 percent from the digital professions.

There is international consensus. There is the political arrangement in this Chamber, which was approved a few weeks ago. There are shocking figures in Belgium. One would think that a government that has two state secretaries engaged in tax fraud would take the measure that exists in other countries and about which there is international consensus, and that they would ensure that the fries are squeezed and there would be more reports from the numerical professions.

That you are not in favour of this, colleague Van Biesen, I know. You are professionally involved.

That the Secretary of State does not do that, I also know and I am not surprised either. His chief of cabinet is a member of the board of directors of the IAB, i.e. in an institute of tax consultants and accountants.

Mr Van Biesen asks for the word. Sometimes it could be a personal fact.

Personal Fact