Ethics and governance in the European Financial centers

According to the last OECD report that was approved and adopted by the Working Group on Bribery
in International Business Transactions on 20 March 2008, Luxembourg urgently needs to establish liability against legal persons for foreign bribery and put in place sanctions that are effective, proportionate and dissuasive, according to a report by the OECD's Working Group on Bribery. The bill currently before Parliament, designed to introduce this responsibility in Luxembourg law, should be amended to ensure that it meets the requirements of the OECD Anti-bribery Convention.

Despite a couple of improvements, the Group is seriously concerned that Luxembourg has still not responded to key Phases 1 and 2 recommendations; these recommendations relate to the establishment of a clear, effective and dissuasive system of liability of legal persons and efforts to raise awareness of the foreign bribery offence among the private sector. Considering the seriousness of the situation, the Working Group has decided that, within one year, Luxembourg will report, in writing, on measures taken to fulfil the recommendations of the Group, and reserves the right, in the event of continued failure to implement the Convention, to take further steps.
The Working Group is particularly concerned about the continuing absence of liability for legal persons that engage in bribery. While a bill has been placed before Parliament dealing with the criminal liability of legal persons, the report highlights gaps in the bill which, if adopted in its current state, would fall short of the requirements of the Convention. Luxembourg should establish a rule for attributing acts of bribery to legal persons that is sufficiently broad to give full effectiveness to the liability of legal persons: the criterion of an act committed "by one of the legal bodies or by one or more members of its legal bodies", as included in the bill before Parliament, seems too restrictive, as it excludes most operational organs or structures. It is also essential that the liability of legal persons be subject to effective sanctions: the fine imposed must be severe enough to be dissuasive. Furthermore, the bill should expressly recognise the jurisdiction of the Luxembourg courts over offences committed outside the national territory by legal persons of the Grand Duchy.
It is also important for Luxembourg to take a more proactive approach in encouraging SMEs to comply with stricter ethical standards when they are looking for business abroad. A system for protecting whistleblowers should also be introduced. Furthermore, the report asks Luxembourg to take whatever steps are needed to facilitate the work of the judicial authorities in obtaining information from Luxembourg financial institutions.

The same 20 March PwC Luxembourg, the audit leader that does not like to tell about economic crime in Luxembourg, published a report called "Opportunities and Competitive Re-positioning of Luxembourg Private Banking by 2012 and 2015 " with the view of providing a sense of purpose shared by all the Luxembourgish stakeholders of the private banking sector and guidance for the development of coherent capacities to sustain the cluster in the long-term.

The publication at the same time of both reports wants commenting: on the one hand the OECD points out persistent dysfunctions, on the other hand PwC Luxembourg and actors do not care of international recommendations or requirements, and go on in their headlong flight. It is telling that PwC Luxembourg report do not points out the risks because of the lax environment. It is only stated
page 9, the « high commitment to regulatory compliance », which is by the way not compatible with the OECD report ,
page 37, the contact person for compliance assignments,
page 27-28, tax fraud and tax evasion but in the limited framework of the Double Tax Treaties.

The delay to implement the OECD recs in a country where the small size should facilitate the legal and regulatory reactivity is telling. Financial stakes are so important that everyone including local big four firms do not take their actual responsibilities, and are delighting with conflicts of interests not to say corruption that they do not repudiate.

Time is up for head offices, either bank head offices or audit head offices, so smell the coffee and realise the risks for their brand in a center where both politicians and professionals definitely do not do their duty.

The FATF recently published astudy that examines the means used by terrorists to raise funds and the wide variety of methods used to move money within and between organisations. The adaptability and opportunism shown by terrorist organisations suggests that all the methods that exist to move money around the globe are to some extent at risk.

It covers the following areas :
THE TERRORIST REQUIREMENT FOR FUNDS
RAISING TERRORIST FUNDS
MOVING TERRORIST FUNDS
INTERNATIONAL RESPONSE TO TERRORIST FINANCING
POLICY IMPLICATIONS

Read report

Every year the International Narcotics Control Strategy Report is published by the American Department of State (Bureau of International Narcotics and Law Enforcement Affairs).

The 2008 release is worth reading. Copied below are the last paragraph relating to the countries is the framework of this blog.

Cyprus

Cyprus has put in place a comprehensive AML/CTF regime, which it continues to upgrade. Cyprus should ensure not only the passage, but also the full implementation, of the two laws that will tighten the current regime requirements. Cyprus should ensure that it is able to implement the law criminalizing the collection of funds with the knowledge that they will be used by terrorists or terrorist groups for any purpose, not only to commit terrorist or violent acts. Cyprus should enact provisions that allow for civil forfeiture of assets in the future.

Gibraltar

The Government of Gibraltar should continue its efforts to implement a comprehensive anti-money laundering and counter-terrorist financing (AML/CTF) regime. The criminal laws on money laundering should be consolidated, and powers presently available only in drug-related money laundering cases should be extended to money laundering cases involving the proceeds of other crimes. The GOG should introduce legislative provisions to its asset seizure and confiscation regime allowing authorities to confiscate assets, including cash, even without a link to the original criminal proceeds. Gibraltar needs to conduct risk assessment of those designated nonfinancial businesses and professions that are unsupervised and determine and extend the necessary authority to conduct AML/CTF compliance examinations of these entities

Ireland

The Government of Ireland should enact legislation to prohibit the establishment of “shell” companies. Law enforcement should have a stronger role in identifying the true beneficial owners of shell companies as well as of trusts in the course of investigations. Ireland should increase the technical and human resources provided to the FIU to manage and evaluate STRs effectively. The GOI should enact legislation that covers both funding of a terrorist acting alone and funding of two terrorists acting in concert, as well as legislation fully implementing UNSCR 1373. To this end, Ireland should remove the evidentiary requirements acting as obstacles to full compliance, as well as circulate the UN and the U.S. lists to its regulators and obligated entities. Ireland should continue implementation of its new anti-terrorism legislation and its AML law amendments, and ensure stringent enforcement of all such initiatives. Ireland should ratify the UN Convention against Transnational Organized Crime and the UN Convention against Corruption.

Isle of Man

Isle of Man officials should continue to support and educate the local financial sector to help it combat current trends in money laundering. The IOM should act on the 2007 Consultative paper with the MSB/e-money regulation proposals that authorities have discussed, and implement the most effective. The IOM should also ensure that the obliged entities understand and respond to their new and revised responsibilities as delineated by the 2007 AML Code. To this end, the FSC should work to release the Anti-Money Laundering and Terrorist Financing Handbook as soon as possible in 2008. The authorities also should continue to work with international AML authorities to deter financial crime and the financing of terrorism and terrorists.

Jersey

The Bailiwick of Jersey should continue to enhance compliance with international standards. Jersey should ensure that all entities, within all sectors, are subject to reporting requirements. The FSC should work to ensure that the AML Unit has enough resources to function effectively, and to provide outreach and guidance to the sectors it regulates. This is especially true for the newest DNFBPs required to file reports. Jersey should mandate the same AML/CTF requirements over its “exempt” companies that it does over the rest of the obliged sectors. The FSC should distribute the UN, European Union and U.S. lists of designated suspected terrorist and terrorist-supporting entities to the obliged entities and not rely on the entities stay current through Internet research.

Liechtenstein

The Government of Liechtenstein has made consistent progress in addressing the shortcomings in its AML regime. It should continue to build upon the foundation of its evolving anti-money laundering and counter-terrorist financing regime. Liechtenstein should ratify the UN Convention against Transnational Organized Crime and the UN Convention against Corruption. Liechtenstein should enact and implement legislation requiring the reporting of cross-border currency movements and ensure that trustees and other fiduciaries comply fully with all aspects of AML legislation and attendant regulations, including the obligation to report suspicious transactions. The GOL should prohibit the issuance and use of corporate bearer shares. The FIU should have access to additional financial information. While Liechtenstein recognizes the rights of third parties and protects uninvolved parties in matters of confiscation, the government should distinguish between bona fide third parties and others. Liechtenstein should consider discarding its list of predicate offenses in favor of an all-crimes approach.

Luxembourg

The Government of Luxembourg has enacted laws and adopted practices that help prevent the abuse of its bank secrecy laws and has enacted a comprehensive legal and supervisory anti-money laundering regime. Luxembourg has steadily enacted AML/CTF laws, policies, and procedures. However, the scarce number of financial crime cases is of concern, particularly for a country that has such a large financial sector. Luxembourg should take action to delineate in legislation regulatory, financial intelligence, and prosecutorial activities among governmental entities in the fight against money laundering and terrorist financing. The situation is most acute regarding the lack of a distinct legal framework for the FIU whose staff, activities, and authorities are divided among at least four different ministries. The State Prosecutors in the FIU should be exempt from nonfinancial crime duties and the FIU should increase the number of analytical staff to effectively analyze and disseminate the volume of STRs that the FIU receives. Luxembourg should pass legislation creating the authority for it to independently designate those who finance terrorism. Luxembourg would be well served to have the authority to designate suspected terrorists. Luxembourg should also enact legislation to address the continued use of bearer shares and consider specifically extending AML legislation to include SICAR entities. Luxembourg should become a party to the UN Convention against Transnational Organized Crime.

Switzerland

The Government of Switzerland hopes to correct the country’s image as a haven for illicit banking services. The Swiss believe that their system of self-regulation, which incorporates a “culture of cooperation” between regulators and banks, equals or exceeds that of other countries. The primary interest of the Swiss system is to avert bad risks by countering them at the account-opening phase, where due diligence and know-your-customer procedures address the issues, rather than relying on an early-warning system on all filed transactions. The GOS believes that because of the due diligence approach the Swiss have taken, there are fewer STRs filed than in some other countries. At the same time, 82 percent of the STRs that are filed lead to the opening of criminal investigations. While generally positive, Switzerland’s FATF mutual evaluation report nonetheless identified weaknesses in the Swiss anti-money laundering and counter-terrorist financing regime, including problems with correspondent banking and the identification of beneficial owners. Per FATF Special Recommendation IX, the GOS should implement cross-border currency reporting requirements. Switzerland should also put forward effective AML legislation and rules that monitor and regulate money service businesses.

United Kingdom

The United Kingdom has a comprehensive AML/CTF regime. However, as discussed in the FATF mutual evaluation, there are areas that should be further addressed by the authorities. The UK should develop legislation and clearly enforceable implementing regulations to ensure that beneficial owners are identified and verified and that customer due diligence is required and ongoing, regardless of an already established relationship with the client. The UK should also develop clear regulations regarding politically exposed persons as well as correspondent banking relationships. Risk-based measures should be codified and taken, not only in the context of customer due diligence, but also with regard to the identification and treatment of wire transfers, the standards and measures set by the designated nonfinancial businesses and professions, and to more effectively target the resources of the supervisory entities. The 2005 Gambling Act should be amended to require the gaming industry to be covered in the same manner as the financial and designated nonfinancial businesses and professions, including giving the Gambling Commission a full range of sanctions. Authorities should track and examine the effects of the SOCAP change regarding acts and assets in or from foreign jurisdictions, and revisit this legislation to determine whether it has been effective, or whether it has enabled exploitation. Authorities should also ensure the FIU’s operational and authoritative independence.


Read full reports

The New York Times has this week published a letter from Robert M. Morgenthau, District Attorney.

"The economically developed countries need to impose severe sanctions on the tax havens and those who use them to unfair advantage. As recent history confirms, totally unsupervised markets will eventually have serious problems, with ripple effects for markets worldwide"

Read letter

The FATF recently published a brochure to support low capacity countries (LCCs) in implementing the FATF standards in a manner reflecting their national institutional systems in a way that is consistent with the ML/FT risks they face and that take into account their limited resources.

Read FATF publication

The FATF welcomes the recent progress in policies and practices to combat money laundering and terrorist financing in the northern part of Cyprus. However, given the existing deficiencies, the FATF calls on its members and urges all jurisdictions to advise their financial institutions to pay special attention to the ML/FT risks in transactions with financial institutions operating in the northern part of Cyprus. The FATF encourages further progress to address the deficiencies.

Source : FATF

Reuters has put online a list of tax havens that compile lists from the OECD, the US Stop Tax haven abuse act, the IMF and Tax Research.

Know more

The OECD has the most lax criteria to determine wether a country is a tax haven or not.

I explained last week that a country cannot base its growth on banking secrecy, tax evasion and frauds in general.

This is less and less accepted worldwide, German Finance Minister Peer Steinbruck' statement about Liechtenstein but as well Switzerland, Luxembourg or Austria being the last example after American Senators, Transparency International.

A financial center needs credibility and in this context its politicians needs to be clever for the sustainability of the center.

I am afraid this is not the case in Luxembourg where nothing has changed in the business culture as demonstrated by parliamentary questions.

Eight Months months ago to face the American Senators' Stop Tax Haven Abuse Act MP Laurent Mosar asked "What necessary steps are planed to protect the interests of the financial center?" instead of asking the relevant question which is "What is to be done to correct the dysfunctions which definitely harm the reputation of the financial center?"

Last week, we could read in the Press MP Lucien Thiel's interview about Peer Steinbruck' statement. Lucien Thiel is the former chairman of the Luxembourg Bankers' Association (ABBL), the association that explained in the framework of the transposition of the second directive that offences such as forgery, use of forgery, false balance sheet, use of false balance sheet or unauthorised use of corporate property are vague and ambiguous (See ABBL report 2003 page 22 for instance). A couple of sentences of this interview Lucien Thiel that is is French are worth translating :

Ce n'est pas notre devoir de contrôler si le contribuable a été honnête: It is not our duty of control if the tax payer was honest
What about AML provisions? I guess it is not banks’ duty to control if money is laundered.

Il existe toujours un secret bancaire, le Luxembourg n'est pas obligé de communiquer les informations de ses clients. : Banking secrecy remains : Luxembourg is not compelled to communicate its clients'data.
What about international cooperation?

In two sentences Luxcien Thiel explains that Luxembourg actually does not care of the fight against fraud and of the international cooperation.

This feeling is shared by politicians. A member of the opposition last week asked a question that fustigate "German Finance Minister's allegations".

Everyone is forgoting that there is a proved permissiveness in Luxembourg that weakens the sustainability of the center.
The point to qualify as tax haven a financial center is neither banking secrecy nor attractive tax rules even these are clues.

The critical point is permissiveness because of conflicts of interests not to say corruption: because of this corruption, nobody is willing to tighten up the ship on issues that are hushed up and nobody is willing to eliminate negligent people : This is not responsible because of the small size emphasizes dysfunctions.

Mosar, Thiel and Wagner's statements are a message for other countries: up yours! Let us make money! This a collective responsibility.


I guess the FATF enjoys Luxembourg's generous grant.

Read more about the topic : Swiss and Luxembourg tax havens next in firing line