AMF/CTF legislation country profile

ECBA Questionnaire filled in for Belgium

a)  Legislation

1. Definition of money laundering in the local legal system.

Money laundering is a form of concealment and exists:

• when one buys, trades or gets for free, possesses, keeps or manages goods that originate directly or indirectly from a crime, while one knew or had to know the origin of these goods from the start of these action;
• when one converts or transfers these goods with the purpose of concealing their illegal origin, or when one assists a person, involved in a crime, to evade from the legal consequences of his actions;
• when one conceals the nature, origin, place, selling, transportation or ownership concerning these goods, while one knew or had to know the origin of these goods form the start of these actions.

2. Sanctions for money laundering offence.

Art. 505 Penal code.

• imprisonment of 15 days up to 5 years
• and/or a fine between €26  and €100.000  (x 5, 5).
• Confiscation of the concealed goods, including the patrimonial advantages (or, as the case may be, the equivalent of these goods/advantages) can (and will, most likely) be claimed by the public prosecutor as an additional sentence.

3. (Legal) professions especially affected by local AML/CTF legislation.

Art. 2, 2bis, 2ter of the law of 11 January 1993 lists the professions who are affected by this legislation:

• credit- and financial institutions
• casino operators
• process servers
• notaries public
• auditors
• external accountants
• in house accountants
• tax advisors
• real estate agents
• security companies
• diamond traders
• attorneys at law.

4. Specific regulations imposed upon attorneys at law.

Art. 2ter of the law of 11 January 1993, as adapted to the Directive  of 4 December 2001 (2001/97/EC) by the law of 12 January 2004.

A very important element is that in Belgium the attorneys at law only have an obligation to identify and report money laundering cases when they participate, whether:

a) by assisting in the planning or execution of transactions for their client concerning the:

• Buying and selling of real property or business entities;
• Managing of client money, securities or other assets;
• Opening or management of bank, savings or securities accounts;
• Organization of contributions necessary for the creation, operation or management of companies; and
• Creation, operation or management of trusts, companies or similar structures.

b) Or by acting on behalf of and for their client in any financial or real estate transaction.

There is no obligation to report when an attorney at law determines or helps to determine the legal position of a client or acts on his behalf in a judicial procedure. There is also no reporting obligation when advising a client in relation to a judicial disputes.

However it is important to note is that the attorneys at law do have a duty to report to the dean of their local bar association, who, at his own discretion, decides whether or not to transfer this information to anti-money laundering authorities.

For Belgium we can conclude that it actually seems that de facto there is no obligation to report, unless, when an attorney at law acts outside the essential activities of his profession.

b)  Bar Association

1. Directives – formulated by the Bar Association – guiding the interpretation of the legislation and the force of these directives (binding, guideline,…).

Due to the fact that any duty to report by an attorney at law must be done via the dean of the Bar Association, it is wise to consult the Bar Association in a pre-reporting stadium, so as to guide you in the decision about the duty to report. Experience has taught that Belgian Bar Associations are very creative in supporting their members to abide the legal regulations.

2. Causes for discussion at the implementation stage of the European Directive in local legislation especially in relation to a possible conflict between this legislation and your professional code of ethics.

The Flemish, French and German Bar Associations initiated an appeal before the Belgian Constitutional Court on 22 July 2004 to scrutinize the conformity of the Belgian law, implementing the European Directive with the Belgian constitution and art. 6 of the European Convention on Human Rights.

Upon following prejudicial question asked by the Belgian Constitutional Court to the European Court of Justices was ruled on 26 June 2007.

The European Court of Justice ruled that the obligations imposed by this Directive did not constitute an infringement of the aforementioned articles.

The Belgian Constitutional Court adhered this ruling by her decision of 23 January 2008, adding however a specific interpretation, stating that an attorney at law is, in order to safeguard the professional secrecy, exempt from the obligation to report whenever he is acting within the essential activities of his profession, i.e. :

- representing and defending his client in court;
- rendering legal opinions/technical legal advice.

Thus, de facto, there seems to be no obligation to report, exc where an attorney at law acts outside the essential activities of his profession.

3. Any action taken by the local Bar Association against the way in which the European directive was implemented in local legislation?

See previous question

4. Other bodies that have undertaken any form of action to safeguard the rights of their members in this respect.

No

c)  Legal practice

1.Particularities that foreign attorneys at law in contact with the local legal system should be aware of / recommendations to be taken into consideration?

In case of doubt, contact a Belgian attorney at law to advise you on the thin line that sometimes exists between acting within or outside the essential activities of the profession as an attorney at law.

c)  Further information

AML – CTF legislation
http://www.ctif-cfi.be/menu.php?lang=en&page=bel_leg

Financial Intelligence Unit
http://www.ctif-cfi.be/

National Bar association
http://www.advocaat.be/EnglishPage.aspx

Banking supervisory body
http://www.cbfa.be/eng/aboutcbfa/odcbfa.asp

All websites mentioned above are available in English

DISCLAIMER
The ECBA maintains this website to provide and disseminate information on criminal procedure in the EU with regard to national money laundering legislation as it applies to attorneys at law. The content of the website relies on contacts in each jurisdiction and although our aim is to keep this information accurate, the ECBA does not warrant or assume any legal liability or responsibility for the accuracy, completeness, or reliability of the content. This information does not constitute legal advice. If errors are brought to our attention, we will try to correct them.
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Last Updated ( Tuesday, 18 January 2011 )