EN
OPINION OF THE EUROPEAN CENTRAL BANK
of 25 November 2003
at the request of the Belgian Ministry of Finance
on a draft law amending the Law of 11 January 1993 on the prevention of the use of the financial
system for the purpose of money laundering, the Law of 22 March 1993 on the legal status and
supervision of credit institutions and the Law of 6 April 1995 on secondary markets, on the legal
status and supervision of investment firms on intermediaries and investment advisers
(CON/2003/25)
1. On 28 October 2003, the European Central Bank (ECB) received a request from the Belgian
Ministry of Finance for an opinion on a draft law amending the Law of 11 January 1993 on theprevention of the use of the financial system for the purpose of money laundering, the Law of22 March 1993 on the legal status and supervision of credit institutions and the Law of6 April 1995 on secondary markets, on the legal status and supervision of investment firms onintermediaries and investment advisers (the ‘draft law’).
2. The ECB’s competence to deliver an opinion is based on the second indent of Article 105(4) of the
Treaty establishing the European Community and the second and fifth indents of Article 2(1) ofCouncil Decision 98/415/EC of 29 June 1998 on the consultation of the ECB by nationalauthorities regarding draft legislative provisions
1, as the draft law contains provisions concerning,
among other things, restrictions on cash payments and new obligations for the financial sector thatcould impact on means of payment and payment systems. In accordance with the first sentence ofArticle 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council of theECB has adopted this opinion.
3. On 30 September 2002 the ECB adopted European Central Bank Opinion CON/2002/24 at the
request of the Belgian Ministry of Finance on a draft law amending the law of 11 January 1993 onthe prevention of the use of the financial system for the purpose of money laundering. The ECBrefers back to this opinion, a copy of which is annexed, for the provisions of the draft law it hasalready addressed. In the current opinion the ECB has examined the new provisions and whererelevant provisions from the earlier draft law whose wording has been amended.
                                                     
1 OJ L 189, 3.7.1998, p. 42.
24. Like its predecessor, the draft law transposes Directive 2001/97/EC of the European Parliament
and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention ofthe use of the financial system for the purpose of money laundering
2. However, it goes further than
its predecessor by taking into account the revi ew of the Forty Recommendations issued by the
Financial Action Task Force (FATF) on 20 June 2003 as well as the FATF’s Eight SpecialRecommendations on the financing of terrorism issued on 31 October 2001.
5. Firstly, the ECB welcomes the fact that within the list of predicate offences contained in Article 3
of the Law of 11 January 1993, the counterfeiting of coins or banknotes has been included3.
Including the offence of counterfeiting ensures compliance with FATF Recommendation 1, whichstates that countries should apply the crime of money laundering to all serious offences, with aview to including the widest range of predicate offences.
6. Secondly, Article 10bis of the Law of 11 January 19934 would now provide that ‘The price at
which immovable property is sold may only be paid by means of a bank transfer or a cheque,except for an amount that does not exceed 10% of the sale price, and provided that this amount isnot greater than EUR 15 000’. In Article 10ter
5 a general prohibition on cash payments for items
whose value is equal to or higher than EUR 15 0 00 is introduced. The ECB notes that this specific
restriction on cash payments does not affect the status of legal tender of banknotes and iscompatible with Community law. This point was already underlined in recital 19 of CouncilRegulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro
6, which expressly states
that ‘limitations on payments in notes and coins, established by Member States for public reasons,are not incompatible with the status of legal tender of euro banknotes and coins, provided that otherlawful means for the settlement of monetary debts are available’. Such means are available inBelgium.
7. Thirdly, the abovementioned Article 10bis restricts the means of paying for immovable property to
bank transfers and checks. The ECB notes that the objective of this provision is to facilitate thetraceability of payments and considers that this objective would be better served by wording thatalso allows the use of other traceable means of payment. 
8. Fourthly, the new Article 4(5) of the Law of 11 January 19937 requires the entities referred to in
Article 2 of the Law of 11 January 1993, whose activity includes the transferring of money withinthe meaning of Article 139bis of the Law of 6 April 1995 on secondary markets, on the legal statusand supervision of investment firms, on intermediaries and investment advisers, to incorporate intransfers of money as well as in any communications relating to them, the relevant and exactinformation regarding the clients ordering these transactions. Furthermore, these same entities must
                                                     
2 OJ L 344, 28.12.2001, p. 76.
3 As amended by Article 5 of the draft law which inserts a paragraph 1bis  point 2º e) into Article 3.
4 As amended by Article 18 of the draft law.
5 As amended by Article 19 of the draft law.
6 OJ L 139, 11.5.1998, p. 1.
7 As amended by Article 7(5) of the draft law.
3ensure that this information is stored and retran smitted if they intervene as intermediaries in a
payment chain. The ECB understands that the requirement proposed in the new paragraph will onlybe applicable to entities mentioned in the first paragraph of Article 139bis of the Law of6 April 1995 when performing activities other than those related to clearing and settlementservices. In fact, it is almost impossible to apply this provision in practice to institutions when they
are providing clearing and settlement services. From the ECB’s perspective, the tasks of theseentities include the safe and efficient transmission of information contained in a payment message,but do not extend to checking the accuracy of the data included in the payment message itself.However, for the sake of clarity, the ECB suggests clearly stating in Article 7(5) of the draft law
that entities performing clearing and settlement services are exempted from the requirements laiddown by this Article.
9. Finally, according to the commentary concerning Ar ticle 38 of the draft law, ‘A new transitional
provision must be inserted obliging, on the one hand, the undertakings and professions that haverecently become subject to the identification requir ement to identify their normal clients within the
year following the entry into force of the draft law and, on the other hand, obliging theundertakings and professions already subject to the identification requirement to apply the newrules laid down in Article 4 of the Law of 11 January 1993 to their existing clients within the yearfollowing the entry into force of the draft law’. However, the proposed provision that will replacethe existing Article 24 of the Law of 11 January 1993 does not limit the transitional regime to theclients of entities that will in future be subject to the identification requirement. Nor does theproposed provision limit the transitional regime to the new identification measures that creditinstitutions and investment firms will in future have to comply with. It would be advisable to
modify the wording to bring it into line with the commentary. 
10. The ECB confirms that it has no objection to the competent national authorities making this
opinion publicly available at their discretion. This  opinion will be published on the ECB’s website
six months after the date of its adoption.
Done at Brussels on 25 November 2003.
The President of the ECB
[signed]
Jean-Claude TRICHET