The Council of Bars and Law Societies of Europe (CCBE) on 16 September 2016 presented its comments on the proposal of 5 July 2016 to amend Directive 2015/849 (‘AMLD4’) on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing.
The comments follow below. The CCBE document on page 11 and further contains the proposal of 5 July 2016.
CCBE comments on the proposal of 5 July 2016 to amend Directive 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing
The CCBE represents the bars and law societies of 32 member countries and 13 further associate and observer countries, and through them more than 1 million European lawyers. The CCBE has examined the proposal of 5 July 2016 to amend Directive 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing (the proposal).
The CCBE wishes to make the following comments:
The CCBE wishes to highlight that all concerns that have previously been expressed in the CCBE’s position papers on the 4th Anti-money laundering Directive still remain.
(1) Tax avoidance and tax evasion
The Commission justifies its proposed amendments as part of efforts to fight money laundering and terrorist financing. Whilst the CCBE shares the concerns for the horror caused by recent terrorist attacks, it appears that in the time between the publication of the action plan in February and the publishing of the proposal in July the objective has shifted away from fighting terrorism and towards strengthening measures to prevent tax avoidance (which is legal) and tax evasion (which is illegal). We observe that most of the proposed amendments do not relate to money laundering or terrorist financing but have tax avoidance and tax evasion in mind. The CCBE also notes that the Commission Communication of 5 July “Communication on further measures to enhance transparency and the fight against tax evasion and avoidance” refers to the tax avoidance and tax evasion measures included the proposal to amend the 4th AML Directive.
While the CCBE has always been supportive of proportionate and effective measures aimed at fighting illegal tax evasion, it does not consider these proposals to be either proportionate or likely to be effective. We also do not consider AML/CFT legislation to be an appropriate vehicle for measures with a primary purpose of improving tax revenues.
(2) Urgency for reform
The 4th AML Directive was published on 5 June 2015 and was to be implemented by Member States before 27 June 2017. Member States are in the middle of preparing the implementing measures, which includes intensive consultation with all bodies that are involved. In addition to preparing for the provisions of the 4th AML Directive, it is now being proposed that, in addition to facing probable amendments as the proposal undergoes the legislative process, Member States and stakeholders are expected to be in a position to implement these additional measures before 1 January 2017 without prior evaluation of the effect of the 4th AML Directive. The CCBE believes that there is nothing in the proposal which justifies such a situation, in particular having regard to the situation that the proposal appears to primarily relate to tax avoidance and tax evasion rather than money laundering and terrorist financing. Moreover, such a rapid change of legislation does neither comply with the principle of legal certainty nor with the rule of law.
(3) International standards
The 4th AML Directive claims to be aligned with internationals standards (Recital 4). The CCBE believes that the 4th AML Directive has already exceeded international standards referred to in Recital 4. Moreover, those AML/CFT standards, which are developed by the FATF in an effort to promote a global consistency of approach, have not changed since the introduction of the 4th Directive. The proposal does not demonstrate which ‘new’ standards the Union legislation should comply with or where the 4th AML Directive would fall short of those standards.
The G20 statement referred to in the proposal as justification for the new measures on beneficial ownership information calls on countries to implement FATF standards on transparency and beneficial ownership. The G20 statement also identifies the FATF and the Global Forum on Transparency and Exchange of Information for Tax Purposes as the appropriate standard-setters in this policy area. The CCBE believes that the proposal far exceeds the current international standards which can be demonstrated, among others, by the provisions regarding access to information regarding non-business type trusts, disregard for the Risk Based Approach (RBA) regarding the beneficial ownership threshold for shareholding and disregard for the risk-based approach regarding due-diligence requirements for high risk countries. The CCBE believes in the merits of a globally consistent approach in the fight against money laundering and terrorist financing. By proposing the revision of the directive while the previous version is still not implemented, the European commission is seeking to establish new standards without taking the necessary time to fully understand the risks and to ensure that proportionality is maintained.
SPECIFIC COMMENTS – PART ONE
(1) Role of the Financial Intelligence Unit (FIU)
The proposal seeks to amend Article 32 by among other, inserting a new paragraph 9:
“(a) in the first subparagraph of paragraph 3, the fourth sentence is replaced by the following:
“It shall be able to obtain and use information from any obliged entity.”;
(b) the following paragraph 9 is added:
“9. In the context of its functions, each FIU shall be able to obtain from any obliged entity information for the purpose set in paragraph 1 of this Article, even if such obliged entity did not file a prior report pursuant to Article 33(1)(a).”
The CCBE believes that the new proposal makes a significant change to the powers of the FIUs. The FIU is empowered to obtain information in cases where reports have not been made. Thus, FIUs could investigate entities even if no suspicious transaction report was made. However, FIUs are not part of the criminal prosecution, as they usually hand the case over to criminal prosecution authorities better equipped to further investigate and which already have the power to use coercive measures (such as search and seizure, subpoena suspects and witnesses etc.). In criminal prosecutions checks and balances are established to protect suspects; such checks and balances are absent in the proposal and do not appear to apply to the FIUs. Additional powers may therefore only be conferred to the FIUs if mechanisms are introduced to safeguard the fundamental rights of suspects such as the prior requirement for a court order or some other form of judicial oversight. Moreover, this is inconsistent with the provisions of Article 34.2 of the 4th Directive which excludes the obligation to report suspicious information received as part of the evaluation of the customer’s legal position in exercising the mission of representation or defence:
Article 33 of the 4th Directive:
1. Member States shall require obliged entities, and, where applicable, their directors and employees, to cooperate fully by promptly: (a) informing the FIU, including by filing a report, on their own initiative, where the obliged entity knows, suspects or has reasonable grounds to suspect that funds, regardless of the amount involved, are the proceeds of criminal activity or are related to terrorist financing, and by promptly responding to requests by the FIU for additional information in such cases; and (b) providing the FIU, directly or indirectly, at its request, with all necessary information, in accordance with the procedures established by the applicable law. All suspicious transactions, including attempted transactions, shall be reported.
2.The person appointed in accordance with point (a) of Article 8(4) shall transmit the information referred to in paragraph 1 of this Article to the FIU of the Member State in whose territory the obliged entity transmitting the information is established. Article
Article 34.1. and 34.2 of the 4th Directive provide that:
1. By way of derogation from Article 33(1), Member States may, in the case of obliged entities referred to in point (3)(a), (b) and (d) of Article 2(1), designate an appropriate self-regulatory body of the profession concerned as the authority to receive the information referred to in Article 33(1).
Without prejudice to paragraph 2, the designated self-regulatory body shall, in cases referred to in the first subparagraph of this paragraph, forward the information to the FIU promptly and unfiltered.
2.Member States shall not apply the obligations laid down in Article 33(1) to notaries, other independent legal professionals, auditors, external accountants and tax advisors only to the strict extent that such exemption relates to information that they receive from, or obtain on, one of their clients, in the course of ascertaining the legal position of their client, or performing their task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings, whether such information is received or obtained before, during or after such proceedings.
Empowering FIUs to obtain information from obliged entities such as independent legal professionals without a prior STR is in conflict with Article 34.1 and 34.2. The European Court of Human Rights has recognised the role of self-regulatory bodies in Member States where they exist. In a number of jurisdictions, due to professional secrecy obligations with respect to disclosing suspicious transactions, lawyers must address their suspicions to the President of the Bar (the Bâtonnier) who acts as a filter. These professional secrecy obligations are imposed by law and enshrined by the ECHR case-law (Michaud, req. n°12323/11). They are absolute and unlimited in time. A violation of the provisions would expose the lawyer to disciplinary proceedings and criminal sanctions. Consequently, the provisions of the proposal are conflicting with the European acquis.
The protection of the confidentiality between the lawyer and the client is a common principle of democratic states founded on the rule of law and is indispensable to safeguard the rights of the suspect. In order to preserve the principles laid down in Article 6 and Article 8 of the European Convention of Human Rights as enshrined by the well-established case law of the European Court of Human Rights, which have been codified by Article 34.1 and 34.2, it must be made clear that Article 34.1 and 34.2 also relate to the new powers of the FIU.
(2) High risk countries
Enhanced customer due diligence requirements
Article 18 introduces numerous obligations for obliged entities with respect to transactions involving high-risk countries.
Draft Article 18 (1):
1. In the cases referred to in Articles 19 to 24, as well as in other cases of higher risk that are identified by Member States or obliged entities, Member States shall require obliged entities to apply enhanced customer due diligence measures to manage and mitigate those risks appropriately.
Draft Article 18a:
1. With respect to transactions involving high risk third countries, Member States shall require that, when dealing with natural persons or legal entities established in the third countries identified as high-risk third countries pursuant to Article 9 (2), obliged entities shall apply at least all the following enhanced customer due diligence measures:
(a) obtaining additional information on the customer;
(b) obtaining addition information on the intended nature of the business relationship;
(c) obtaining information on the source of funds or source of wealth of the customer;
(d) obtaining information on the reasons for the intended or performed transactions;
(e) obtaining the approval of senior management for establishing or continuing the business relationship;
(f) conducting enhanced monitoring of the business relationship by increasing the number and timing of controls applied, and selecting patterns of transactions that need further examination;
(g) requiring the first payment to be carried out through an account in the customer’s name with a bank subject to similar CDD standards.
The proportionality of these requirements must be considered.
The approach in itself is contrary to the risk based approach which is the international standard applied by the FATF. The FATF provides that “The risk-based approach allows countries, within the framework of the FATF requirements, to adopt a more flexible set of measures, in order to target their resources more effectively and apply preventive measures that are commensurate to the nature of risks, in order to focus their efforts in the most effective way.” This is a significant and possibly unworkable departure from the RBA and FATF standards.
The requirements as drafted and without any risk-based assessment will be very difficult to meet as they involve extensive obligations and extensive resources, despite the fact that the situation may not require enhanced measures. It should be mentioned that, regarding the legal profession, the majority of the 1,000,000 European lawyers represented by the CCBE, through the national bars and law societies, are not members of large and well-resourced firms, but rather work as solo practitioners or part of small firms. Such additional requirements increase the difficulties in complying with the ever increasing requirements and demands of AML legislation. For example how would a lawyer be able to fulfill the obligations according to draft Article 18a.1 (f) when it is neither in theory nor in practice possible to be observed by lawyers due to a lack of any kind of such information?
Reporting mechanisms and systematic reporting
The CCBE has serious concerns regarding draft Article 18a.2 of the proposal whereby Member States may require obliged entities, when dealing with natural persons or legal entities established in the third countries identified as high-risk third countries, to introduce enhanced “relevant reporting mechanisms or systematic reporting of financial transactions”.
Draft Article 18a.2 (b):
2. In addition to the measures provided in paragraph 1 and in compliance with international obligations of the Union, Member States may require obliged entities, when dealing with natural persons or legal entities established in the third countries identified as high-risk third countries pursuant to Article 9(2) to apply one or several additional mitigating measures:
(a) requiring financial institutions to apply additional elements of enhanced due diligence;
(b) introducing enhanced relevant reporting mechanisms or systematic reporting of financial transactions;
It should be remembered that, although financial institutions will likely have sophisticated financial reporting systems, to extend this obligation beyond them will incur significant costs for possibly little gain, especially when considering the range of obliged entities and the type of business conducted.
The provision of Article 18a.2 (b) is incompatible with the principle of professional secrecy and should be revised accordingly. The lawyer’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client.
(3) Threshold for shareholding
Regarding identifying the beneficial owner, the Commission proposes to lower to 10% the threshold set out in the 4th Directive in respect of certain limited types of entities which present a specific risk of being used for money laundering and tax evasion.
This again departs from the RBA and the international standards set by the FATF.
SPECIFIC COMMENTS – PART TWO
Trusts and similar arrangements
Paragraph 10, together with recitals (34) and (35) of the Amendment to the Directive provide for amendments to the original provisions in Article 31 relating to trusts and other types of legal arrangements having a structure or function similar to trusts (e.g. Treuhand, fiducie, fideicomiso and similar legal arrangements). The new proposal amends the original provision in which mandatory trust registers applied only to taxable trusts and were only accessible by the authorities and obliged entities.
The proposal includes requirements on trustees to disclose details of trust beneficiaries to central registries administered by each member state’s government. In the case of trusts and similar legal arrangements that are involved in commercial or ‘business-like’ activities with a view to making profit, the registers would be publicly accessible on the basis that the same arguments in favour of public access to beneficial ownership information on companies remain valid.
However, the proposal has extended requirements such that data on beneficial owners of trusts and similar legal arrangements set up for non-business purposes (such as preserving and setting conditions on use of family assets, charitable aims, or other purposes beneficial to the community) must also be disclosed to a central register. Here, access “shall only be granted to persons or organisations holding a legitimate interest”. Recital 35 of the proposal provides that “Legitimate interest with respect to money laundering, terrorist financing and the associated predicate offences should be justified by readily available means, such as statutes or mission statement of non-governmental organisations, or on the basis of demonstrated previous activities relevant to the fight against money laundering and terrorist financing or associated predicate offences, or a proven track record of surveys or actions in that field.” It is also noted that the proposal provides that “In exceptional circumstances to be laid down in national law, where the access referred to in paragraphs 4 and 4a would expose the beneficial owner to the risk of fraud, kidnapping, blackmail, violence or intimidation, or where the beneficial owner is a minor or otherwise incapable, Member States may provide for an exemption from such access to all or part of the information on the beneficial ownership on a case-by-case basis.”
Uses of trust arrangements
It is worth highlighting the uses of trust and similar arrangements in order to fully understand the implications of the proposal. A trust is an accepted way of managing assets (money, investments or property) by enabling a third party or trustee to hold those assets on behalf of one or more beneficiaries.
Trusts are set up for a number of reasons, including:
a) to control and protect family assets;
b) to provide for children who are too young to handle their affairs;
c) to provide for individuals who are unable to handle their affairs because they are incapacitated;
d) to pass on assets following the death of the settlor of the trust (a ‘will trust’)
e) in some jurisdictions, to deal with assets under the rules of inheritance if someone dies without a will.
Different types of trusts are taxed differently – for example, some trusts set up to benefit disabled people (or minor children whose parent has died) qualify for special tax treatment on income and capital gains.
The trustees are responsible for reporting and paying tax to the tax authorities on behalf of the trust, where the trust may receive income or make chargeable gains. However, the vast majority of trusts do not receive income or make any chargeable gains and therefore do not require registration with the tax authorities.
It is worth highlighting that trusts are not just a vehicle used by wealthy people – they are used in a number of everyday situations. Independent UK tax authority (HMRC) research confirmed that the most common reason for setting up a trust is to protect the interests of vulnerable persons: minors, disabled people and the elderly.
Wills and trusts
Trusts can be used to pass on wealth during a person’s lifetime, but many people establish them through their wills when they die. Writing a will alone is not sufficient to ensure the family of the deceased person can avail of the estate of the deceased in the way intended. Property can take a deceased estate above the inheritance tax thresholds, leaving the family to face an unexpected and avoidable tax bill at a particularly difficult and emotional time.
Taxation, borrowing, business failure, divorce, subsequent remarriage and unwise decisions made by vulnerable family members can all threaten the ability of an individual to provide for his/her family after death. Putting assets into a trust is a way to minimise these threats.
It is also possible to hold a life assurance policy on trust to ensure any proceeds are not paid into the deceased’s estate, for inheritance tax purposes.
Further examples of trust usages
Family Arrangements/Future planning
• to provide for a second spouse during their remaining lifetime whilst protecting the trust capital for different beneficiaries or beneficiaries in the future (e.g. children of a first marriage / relationship).
• A settlor, on realising that he was becoming ill, set up a trust for himself so that others would be able to look after his finances in the future;
• Charitable trusts – the beneficial owners under which may constantly change or may indeed merely be a class of persons, some even unborn.
• Properties subject to joint ownership: beneficial joint ownership will be presumed by UK courts unless an express declaration of trust is made using a Land Registry form or a separate trust instrument by the purchasers and this is registered at the Land Registry.
• Life insurances – To help transfer assets within a family after death and avoid lengthy probate issues. Virtually all life insurance policies are written “in trust” so that financial help after a death can go quickly to dependants.
• Personal Injury trusts – Where the courts in the UK award personal injury damages for victims of very serious accidents these are also normally held in a trust. It is, for example, standard practice for the UK courts to require that any large personal injury settlements are paid into a trust fund so as to protect the beneficiary’s rights to state benefits if needed in the future.
• Many family businesses are owned via a trust so that management can continue after a family death and avoid a lengthy period of uncertainty during probate.
• To control and protect family assets: e.g. passing them on to children or grandchildren; providing for a beneficiary in a particular way; withholding assets until children reach a certain age; and ensuring money stays within the ‘bloodline’ (for example, in the case of divorce or remarriage);
• When someone is too young to handle their affairs;
• Discretionary trusts might be used to provide for the future needs of a child, e.g. educational or marital.
• Parents who set up a trust for a child who has a mental disability: these parents might not necessarily be wealthy but might just save in order to make provision for their child;
• Children who are injured and whose parents ‘cannot be trusted’ with the Government award;
• When someone cannot handle their affairs because they are incapacitated;
• to put capital aside for beneficiaries who are not responsible to deal with money by themselves (e.g. due to a drug addiction or mental illness);
• A son who set up a trust for his elderly mother to ensure she did not give the money away under persuasion.
Concerns about the new provisions
One of the premises behind the money laundering legislation is that it should be proportionate to the risks. The Amendment states that “the proposed amendments are limited to what is necessary to achieve the objectives of tackling terrorist financing and increasing corporate transparency, and build on rules already in force, in line with the principle of proportionality.” The proposals also go on to state that “A fair balance should be sought in particular between the general public interest in corporate transparency and in the prevention of money laundering and the data subjects’ fundamental rights. The set of data to be made available to the public should be limited, clearly and exhaustively defined, and should be of a general nature, so as to minimize the potential prejudice to the beneficial owners.”
The proposals go on further to state that “Proportionality has also been ensured in respect of transparency regimes for information on the beneficial owner of legal entities (companies, trusts, similar legal arrangements). Thus, a comprehensive analysis of legitimate requests by activists and NGOs, the need to ensure enhanced transparency of business relationships, legal standards in the field and particularly all rules regarding protection of privacy and personal data dictate that there should be a clear distinction made between categories of legal entities engaged in the management of trusts as a business, with a view to gain profit, and other categories. It is legitimate and proportionate to grant public access to a limited set of information on the beneficial owners of the first category of legal entities, while, in respect of the second category, such beneficial ownership information should only be made known to persons and organisations demonstrating a legitimate interest.”
However, the proposals bite upon a huge number of arrangements in which there is very little risk of tax evasion or money laundering. We note that private sector engagement formed a key part of the proposals in respect of the terrorist financing amendments in the proposal. Conversely the proposed amendments relating to beneficial ownership have only been drafted in line with the views expressed by Member States in the informal ECOFIN Council of 22 April 2016 and from questions asked by representatives of Member States during transposition seminars for an unrelated directive concerning tax cooperation. There was no such private sector engagement in respect of the amendments to beneficial ownership provisions, which is a key aspect of ensuring proportionality as it helps to demonstrate how the lives of ordinary law-abiding people will be impacted by any changes. Directly resulting from the lack of private sector engagement are the problematic definitions of trust types used in the proposals which show a lack of understanding of the nature of trusts. For example, the term ‘family trust’ is incorrectly assumed to only apply to ‘non-professionally managed trusts’. Family trusts are usually set up as discretionary trusts for succession planning purposes and to pass protected assets down through the generations for the benefit of family members. It is incorrect to describe a family trust as a ‘non-professionally managed trust’ since it is perfectly feasible that a family trust may be managed by a professional trust company or a professional investment manager. The fact that a trust is managed by a professional does not automatically deem it to be a commercial trust or have a commercial intent.
The current proposals also have the effect that any trust (family or otherwise) will have to be registered with the name of the settlor, trustees, protectors and beneficiaries to be accessible, with very few safeguarding restrictions available to protect vulnerable people, as well as also infringing privacy of ordinary citizens.
In many instances, information on trusts’ beneficiaries and level of assets is not even shared with family members (e.g. wills, benevolence situation, life insurance) let alone with other parties who are potentially interested. Trusts are often used in cases where the settlor does not wish to share with the relevant individuals that they are indeed beneficiaries of a trusts. This is the case for example where a trust is set up by parents to put funds aside for their child but do not wish their child to know of the arrangements so that they do not become dependent on the existence of the trust or in the case of a will trust.
In the case of private trusts the proposals provide that access “shall only be granted to persons or organisations holding a legitimate interest”. “Legitimate interest” however has a wide interpretation: “justified by readily available means, such as statutes or mission statement of non-governmental organisations, or on the basis of demonstrated previous activities relevant to the fight against money laundering and terrorist financing or associated predicate offences, or a proven track record of surveys or actions in that field.” As drafted, this language is wide enough to grant unfettered access to many non-governmental organisations and any journalist or media organisation.
Indeed, Recital 23 exhorts the benefits of public access as allowing “greater scrutiny by the press or civil society organisations”. And the proposed new Article 7b, paragraph 5, confirms that “the personal data of beneficial owners referred to in paragraph 1 shall be disclosed for the purpose of enabling third parties and civil society at large to know who are the beneficial owners, thus contributing to prevent the misuse of legal entities and legal arrangements through enhanced public scrutiny.” In this respect, the suggested provisions in the Commission’s proposal do not respect fundamental rights and do not observe the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to private and family life and the right to the protection of personal data.
Moreover, if a consequence of the proposed Amendments is to potentially expose the private affairs of children and vulnerable persons to media scrutiny and public disclosure, as is likely, it is difficult to see how this proposal either meets the proportionality test or will prevent money-laundering or terrorist financing. At a minimum, the provisions must be re-drafted to mandate the imposition by Member States of much more severe restrictions on access to information in relation to trusts set up for non- business purposes, rather than rely on the vague and easily-circumvented requirement on third parties to show a “legitimate interest”.
By way of example, in Ireland, while every Grant of Probate is a document of public record the High Court has restricted access to detailed financial probate information to a very limited number of categories (beneficiaries under a will, creditors of a deceased whose debts have been admitted or proved, those entitled to bring proceedings against an estate, Government employees who have a legitimate interest), but certainly would not include the media or NGOs. While the latter might undoubtedly “be interested in” such information, that is a much lower bar than actually having what the ordinary person would regard as “a legitimate interest in” the information.
Furthermore, although the proposals state that “in exceptional cases” no access will be granted if access would expose the beneficial owner to the risk of fraud, kidnapping, blackmail, violence or intimidation, or where the beneficial owner is a minor or otherwise incapable, it is not clear where the burden of proof lies in this connection – in the UK for example, the burden of proof would be on the registrant to prove the risk such that “exceptional” means “exceptional” rather than applying to the vast majority of situations which could fall within the scope of the legislation.
Nothing in the proposals granting increased access to the media and NGOs would actually prevent money-laundering. Making the information available to the competent authority, FIU and obliged entities should be sufficient. The rationale that allowing access to this information to those with a legitimate interest will ensure that people are not trying to abuse the system does not hold in these circumstances, rather it is an invasion of privacy and threatens individuals’ rights to provision for others e.g. wills etc – confined to small groups – beneficiaries will be able to check entitlements, which is precisely what the law is designed to prevent.
Article 6(1) of the Treaty on European Union states that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights. However, we believe that the proposals breach fundamental rights in circumstances where the risks of money laundering are minimal. The Commission will also be aware of the legal challenge to the French national public register of trusts in which the Supreme Court of Justice has found the grounds for challenge over the infringement on the right to a private life to be so serious that it has ordered the suspension of the register.
We believe the provisions agreed in Article 31 of Directive (EU) 2015/849 (the Fourth EU Money Laundering Directive or 4MLD) remain sufficient to proportionately and adequately address the threat of money laundering and terrorist financing emanating from trusts. No evidence has been produced by the Commission or any other body to suggest that the level of AML/CFT risk associated with trusts has changed since the passing of 4MLD nor has there been any evidence produced to suggest public access to trust information will result in better AML/CFT outcomes.
We reject the need for the proposed amendments to Article 31 contained in 2016/0208 (COD). These proposals are disproportionate, not evidence based and breach fundamental rights in circumstances where the risks of money laundering are minimal.
We urge that the above comments are taken into account and that the Commission gives proper consideration to making appropriate amendments to the proposal prior to it being subjected to the legislative process.