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)
Date: 2003-11-25
Institutions: European Central Bank
Subjects: Belgium, financial stability, money, money laundering, national law, payment, payment system

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 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 (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)  of

Council  Decision  98/415/EC  of  29 June  1998  on  the  consultation  of  the  ECB  by  national
authorities regarding draft legislative provisions1, as the draft law contains provisions concerning,

among other things, restrictions on cash payments and new obligations for the financial sector that

could impact on means of payment and payment systems. In accordance with the first sentence of

Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council of the

ECB 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 on

the prevention of the use of the financial system for the purpose of money laundering. The ECB

refers back to this opinion, a copy of which is annexed, for the provisions of the draft law it has

already  addressed.  In  the  current  opinion  the  ECB  has  examined  the  new  provisions  and  where

relevant provisions from the earlier draft law whose wording has been amended.

1 

OJ L 189, 3.7.1998, p. 42.

                                                     
4. 

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 of
the use of the financial system for the purpose of money laundering2. However, it goes further than

its  predecessor  by  taking  into  account  the  review  of  the  Forty  Recommendations  issued  by  the

Financial  Action  Task  Force  (FATF)  on  20  June  2003  as  well  as  the  FATF’s  Eight  Special

Recommendations 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, which

states  that  countries  should  apply  the  crime  of  money  laundering  to  all  serious  offences,  with  a

view 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 is
not greater than EUR 15 000’. In Article 10ter5 a general prohibition on cash payments for items

whose value is equal to or higher than EUR 15 000 is introduced. The ECB notes that this specific

restriction  on  cash  payments  does  not  affect  the  status  of  legal  tender  of  banknotes  and  is

compatible  with  Community  law.  This  point  was  already  underlined  in  recital  19  of  Council
Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro6, 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 other

lawful  means  for  the  settlement  of  monetary  debts  are  available’.  Such  means  are  available  in

Belgium.

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  the

traceability of payments and considers that this objective would be better served by wording that

also 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 within

the meaning of Article 139bis of the Law of 6 April 1995 on secondary markets, on the legal status

and supervision of investment firms, on intermediaries and investment advisers, to incorporate in

transfers  of  money  as  well  as  in  any  communications  relating  to  them,  the  relevant  and  exact

information regarding the clients ordering these transactions. Furthermore, these same entities must

2 
3 
4 
5 
6 
7 

OJ L 344, 28.12.2001, p. 76.
As amended by Article 5 of the draft law which inserts a paragraph 1bis point 2º e) into Article 3.
As amended by Article 18 of the draft law.
As amended by Article 19 of the draft law.
OJ L 139, 11.5.1998, p. 1.
As amended by Article 7(5) of the draft law.

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ensure  that  this  information  is  stored  and  retransmitted  if  they  intervene  as  intermediaries  in  a

payment chain. The ECB understands that the requirement proposed in the new paragraph will only

be  applicable  to  entities  mentioned  in  the  first  paragraph  of  Article  139bis  of  the  Law  of

6 April 1995  when  performing  activities  other  than  those  related  to  clearing  and  settlement

services. 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  these

entities 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 laid

down by this Article.

9. 

Finally, according to the commentary concerning Article 38 of the draft law, ‘A new transitional

provision must be inserted obliging, on the one hand, the undertakings and professions that have

recently become subject to the identification requirement to identify their normal clients within the

year  following  the  entry  into  force  of  the  draft  law  and,  on  the  other  hand,  obliging  the

undertakings  and  professions  already  subject  to  the  identification  requirement  to  apply  the  new

rules laid down in Article 4 of the Law of 11 January 1993 to their existing clients within the year

following the entry into force of the draft law’. However, the proposed provision that will replace

the existing Article 24 of the Law of 11 January 1993 does not limit the transitional regime to the

clients  of  entities  that  will  in  future  be  subject  to  the  identification  requirement.  Nor  does  the

proposed  provision  limit  the  transitional  regime  to  the  new  identification  measures  that  credit

institutions  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

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