The specific enhanced due diligence obligation provided for in Article 39 of the Anti-Money Laundering Law requires all transactions and business relationships identified as being somehow linked to one of the tax havens listed by the King to be subjected to a thorough examination. Where appropriate, this thorough examination should enable the financial institution detecting such a link to determine whether, in accordance with Article 47 of the Law, a suspicion should be reported to CTIF-CFI concerning the transaction or business relationship, “particularly taking into account the risk of laundering money stemming from serious fiscal fraud, whether organised or not,” posed by it as a result of this link.

However, the NBB notes that, pursuant to the principle laid down in Article 47, § 1, second paragraph, of the Anti-Money Laundering Law, a financial institution should deem an atypical transaction suspicious as soon as the analysis of this transaction leads it to consider that it knows, suspects or has reasonable grounds to suspect that the funds concerned have an illicit origin, potentially serious fiscal fraud, without also having to determine whether that fiscal fraud actually meets the legal conditions to qualify as “serious fiscal fraud, whether organised or not”.  It is the responsibility of CTIF-CFI, to which this suspicious transaction should be reported, to perform a more thorough analysis to discover whether there is underlying serious fiscal fraud. For more information on this subject, see point 2.1. of the page “Analysis of atypical facts and transactions”, and in particular the section dedicated to the laundering of money stemming from serious fiscal fraud, whether organised or not.

Furthermore, it should be noted that the enhanced due diligence measures to be implemented pursuant to Article 39 of the Anti-Money Laundering Law should be proportionate with the risk level assessed in accordance with Article 19, § 2, of the Law. For more information on this subject, see the page “General commentary on cases of enhanced due diligence”, the content of which is taken from the Explanatory Memorandum of the Anti-Money Laundering Law. The NBB consequently recommends determining the intensity of the due diligence measures to be implemented in the institution’s internal procedures, depending on whether there are other factors indicative of high risk associated with the transaction or business relationship concerned, in accordance with the individual risk assessment required by the aforementioned Article 19 of the Law (see the page “Individual risk assessment”). To that end, all characteristics of the transaction or business relationship should be taken into consideration, particularly its nature and purpose and the amounts involved.

Generally, the specific framework of a transaction or business relationship identified as being linked to a tax haven comprises the adoption of measures aimed at determining, with an increased level of certainty,

• the origin of the funds involved in the transaction concerned;
• and the identities of all persons involved in the business relationship concerned, regardless of whether they are natural or legal persons or legal arrangements such as trusts or fiducies and, in particular, the identities of the beneficial owners of these persons.

Indeed, in order to detect transactions or facts that could be linked to the laundering of proceeds of serious fiscal fraud, financial institutions should be fully aware of the identities of the natural persons who ultimately own or control the companies or legal arrangements with which they establish business relationships.

Article 23 of the Money-Laundering Law describes the obligation to identify the beneficial owners of customers that are companies or legal arrangements as a performance obligation; conversely, given that the obliged entity generally is not in direct contact with the beneficial owners, the obligation to verify their identity is legally defined as a best-effort obligation.

However, the obligations to identify and verify the identity of the parties involved in the business relationship are not merely administrative obligations: they must enable the financial institution to completely and effectively fulfil its due diligence obligations and, in particular, its ongoing due diligence obligations with regard to the business relationship, in order to perform a thorough analysis of the atypical transactions detected, so it can be determined whether there is a suspicion of money laundering and whether, as a result, the obligation to report suspicions to CTIF-CFI applies.

It should also be noted that, pursuant to Article 33, § 1, of the Anti-Money Laundering Law, when a financial institution can no longer fulfil its obligations to identify and verify the identity of the beneficial owners of a customer within the time limit required, it may neither establish nor maintain a business relationship with this customer.