By Charles van der Voort, VOI Lawyers Breda.
It seems as if the detection virus related to money laundering is also circulating in our country at the same time as the corona virus. Nowadays you can no longer save a newspaper or read about FIOD investigations, criminal convictions for money laundering, banks that work together against money laundering, as if they were extraordinary investigative services, and so on. There is no misunderstanding that combating money laundering is one of the objectives of the Financial Supervision Office (BFT). How is that exactly?
The Financial Supervision Office contributes to the legal certainty and integrity of the financial system in the Netherlands by, among other things, supervising compliance with the Money Laundering and Terrorist Financing (Prevention) Act (Wwft) at institutions of tax advisers and accountants. For the purpose of this supervision, the BFT may initiate an inspection (investigation). An institution and all its employees are under art. 5:20 of the General Administrative Law Act (Awb) is obliged to cooperate in such an investigation.
It is advisable to properly record policies, procedures and measures in order to limit the risks of money laundering and terrorist financing. It is also important to keep a good record of internal reports of possible unusual transactions and the assessment thereof.
On-site investigation
If the BFT carries out an on-site investigation, you must first of all ask the BFT employees to identify themselves. Record this information. Then ask for the purpose of the visit / research. This way you can be sure that it concerns an investigation in the context of supervision of compliance with the Wwft.
Also contact a lawyer and ask about your rights and obligations. Expert assistance in an investigation is very important. Administrative fines or criminal prosecution could possibly be prevented.
Entering
The BFT may enter any place and visit an institution at any time (art. 5:15 Awb). This can be announced or unannounced. Ask the BFT employees to wait with the investigation until your lawyer has arrived.
Important: a house may only be entered after prior permission from the resident. This can be important, for example, if the office is conducted from home.
It is also important to keep your desk tidy and to store files in locked cupboards. The BFT employees are allowed to look around, but it is not allowed to open cupboards and drawers.
Information
The BFT may also request information (art. 5:16 Awb). The obligation to provide information does not apply if there is a transition from supervision to investigation. As soon as you are questioned with a view to an administrative sanction (or criminal prosecution) to be imposed, you can invoke your right to remain silent (Article 5:11 Awb and Article 29 WvSv). Your lawyer can monitor such a transition for you and point out your rights and obligations.
Claim access
During the investigation, the BFT may demand access to business data and documents, including the right to inspect files (Article 5:17 Awb). In that context, accountants can not rely on a duty of confidentiality.
Confirm in writing to the BFT if you object to the claim and make a copy for yourself of the documents supplied.
You do not have to provide full access to files of clients for whom work is carried out to which the Wwft does not apply. It is therefore advisable to set up separate files for those activities
Administrative enforcement
If, as a result of the investigation, the BFT finds that the Wwft has not been complied with, this is in principle an administrative violation.
The BFT may as a sanction:
- give a clue;
- impose an order subject to a penalty;
- impose a fine;
- impose a temporary ban on exercising a policy-making function;
- publish a warning or statement;
- publish a decision to impose an administrative sanction.
By calling in a lawyer in good time, administrative sanctions can possibly be prevented. If you are faced with sanctions for possible violations, a lawyer can assist you in any objection and appeal procedure.
Criminal enforcement
Non-compliance with obligations under the Wwft is in certain cases a criminal offense (economic offense). The Economic Offenses Act (WED) specifies which obligations exactly fall under economic criminal law. This is, for example, failing to perform customer due diligence or not reporting unusual transactions.
Disciplinary Enforcement
The BFT can file a disciplinary complaint against an accountant with the Accountants’ Chamber of the Court in Zwolle.
Prevention, better than cure
If you want to be sure that you have the Wwft in order when the BFT comes along, it is advisable to follow the 8-step plan of the BFT. Grub is a suitable tool for this, because you overcome all 8 steps, because you can always provide the current information to the regulator, and because you demonstrably record the information (both the objective and subjective “decisions”).
About the author: Charles van der Voort is a lawyer at VOI Advocaten. He helps entrepreneurs and private individuals who have a (imminent) criminal dispute with investigative authorities and the Public Prosecution Service. Before he joined VOI Advocaten, he worked for a long time at the Public Prosecution Service, including as Public Prosecutor in The Hague and Breda.
