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Rapport commun des autorités de surveillance de l'Union européenne sur les risques de blanchiment : plusieurs passages intéressants à souligner

Rapport commun des autorités de surveillance de l'Union européenne sur les risques de blanchiment : plusieurs passages intéressants à souligner

L'origine du rapport :

“14. Article 6(5) of Directive (EU) 2015/849 (AMLD4) requires the ESAs to issue a Joint Opinion on the ML/TF risks affecting the EU’s financial sector. This Joint Opinion serves to inform the European Commission’s supranational risk assessment (SNRA) and the ESAs’ work on fostering supervisory convergence and a level playing field in the area of AML/CFT. It also serves to inform Member States’ CAs in their application of the risk-based approach to AML/CFT supervision. AMLD4 requires the ESAs to publish the Joint Opinion every 2 years and the previous Joint Opinion was published in February 2017.” (p. 6)

Les divergences dans les pratiques nationales en matière de garantie de l'activité irréprochable :

“The EU’s rules on authorisations, qualifying holdings, and fitness and propriety rely heavily on national transpositions and interpretations of EU law by national prudential supervisors and the European Central Bank (ECB). They leave little room for the development of a consistent EU approach to addressing ML/TF risk effectively in these contexts. For example, the way that EU law has been transposed in some Member States means that some CAs are of the view that they are unable to act on ML/TF concerns unless they can find evidence of criminal convictions. This is of concern because, once a firm is authorised, the passporting rights attached to some forms of licence (e.g. for banking and payment services) enable it to provide its services across the EU unhindered and so ML/TF risks can be spread by the firm across a number of Member States.” (p. 16)

L'absence de coopération entre les diverses autorités :

“At the same time, cooperation between CAs that are responsible for the AML/CFT supervision of firms that operate on a cross-border basis and cooperation between CAs and prudential supervisors was sometimes hampered by real or perceived legal obstacles related to the exchange of information. In addition, there was no explicit duty to cooperate in this regard. There was a risk that supervisors had only a partial view of the risks associated with certain sectors or firms. The ESAs expect that legal changes introduced by AMLD5 will provide a clear legal basis for supervisory cooperation.” (p. 16)

Les difficultés à identifier les ayant-droits économiques : 

"In addition, CAs are also concerned about the systems and controls put in place by firms for the identification and verification of beneficial owners, as they consider them inadequate. In line with the ESAs’ Risk Factors Guidelines20, if a firm is unable to identify a beneficial owner because the customer has gone to great lengths to disguise it by forming various complex structures, the firm should consider the reasons for such behaviour, as it might be an indicator that the business relationship presents a high ML/TF risk. Some CAs suggest that the lack of publicly available registers containing sufficient data on beneficial ownership is a contributing factor to these shortcomings. However, the ESAs consider that reliance on such registers for the purpose of identifying the beneficial owner is not warranted in all cases. Instead, these registers are useful as an additional source of information when verifying the beneficial owner’s identity, but they cannot be the only source of information used for identification, in particular in situations in which the ML/TF risk associated with a business relationship is increased." (p. 22 et 23)

Une nécessaire coopération étendue entre secteur financier et autorités de poursuite :

“49.The fight against TF continues to be hampered by firms not having access to relevant information — often held by law enforcement agencies — that would help them identify TF risks before they crystallise. Likewise, law enforcement agencies’ efforts to disrupt terrorist activities and networks can be hampered when they are unable to obtain information about terrorist finance flows that only firms can provide. It is essential, therefore, that law enforcement, CAs and firms work closely together in the fight against TF.” (p. 26)

iusNet DB 25.11.2019

Rapport commun des autorités de surveillance de l'Union européenne sur les risques de blanchiment : plusieurs passages intéressants à souligner

Rapport commun des autorités de surveillance de l'Union européenne sur les risques de blanchiment : plusieurs passages intéressants à souligner

L'origine du rapport :

“14. Article 6(5) of Directive (EU) 2015/849 (AMLD4) requires the ESAs to issue a Joint Opinion on the ML/TF risks affecting the EU’s financial sector. This Joint Opinion serves to inform the European Commission’s supranational risk assessment (SNRA) and the ESAs’ work on fostering supervisory convergence and a level playing field in the area of AML/CFT. It also serves to inform Member States’ CAs in their application of the risk-based approach to AML/CFT supervision. AMLD4 requires the ESAs to publish the Joint Opinion every 2 years and the previous Joint Opinion was published in February 2017.” (p. 6)

Les divergences dans les pratiques nationales en matière de garantie de l'activité irréprochable :

iusNet DB 25.11.2019

 

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