Ethics and governance in the European Financial centers

The AFP reported that Prime Minister Juncker attacked the USA by saying "The G20 has no credibility as an undertaking if Delaware, Wyoming or Nevada or far-flung islands from the United States are not on the blacklist. If there must be a blacklist then, America should have its place on it."

It is true that the USA have their own tax havens that are not targetted by the Stop tax haven Abused Act. They definitely should be.

But Prime Minister Juncker forgets that his jurisdiction is not so targetted by the USA : it was not under the US Senate investigation on tax havens.

By acting like that Prime Minister Juncker could incitate the USA to investigate on the Luxembourg issues :
- Clearstream,
- the small number of criminal cases before the courts that is said "telling" for a jurisdiction that has such a large financial center (See the Narcotics Control Strategy Reports of the last years)
- ...

By the way, Minister Frieden ("peace" in german) went to the USA a couple of days ago.
By attacking now the USA Prime Minister Juncker reveals the weakness of Luxembourg as American people were not convinced.

The Commission on the Financial crisis this week provided its report titled « Vers un nouveau modèle de croissance » (Towards a new model for growth).

As I said, when it is written that « Bien que les temps où le Luxembourg était considéré, à juste titre, comme centre offshore soient révolus … » (“Although times when Luxembourg was considered, and rightly so, as an offshore center are over…”), it is not true.

Let’s have a google search on a couple of exotic jurisdictions in the Luxembourg Corporate Registration the last 365 days.

Panama, 219 results

BVI, 82 results

British Virgin Islands, 220 results

Seychelles, 49 results

Gibraltar, 106 results

Cayman, 371 results

Bermuda, 101 results

Anguilla, 4 results

Bahrain, 14 results

Bahamas, 54 results


And so on.

All the above jurisdictions are on the unofficial OECD list of tax havens.


Furthermore in many cases foreign individuals that appear in the framework of such firms use a Luxembourg-based address whereas they actually reside abroad.

The Luxembourg tax haven is there.

The Luxembourg government has just filed on 20 March 2009 the Bill N°6017 bearing
1. Approval of the Council Act of … 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.
2. Approval of the Council Act of ... 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union
3. Change to certain provisions of the criminal Instruction code and the law of 8 August 2000 on Mutual Assistance in Penal Matters


As regards regulation in the broad sense, two texts are still not transposed in the Luxembourg legislation (bills in stand by at the Chambre des Députés):

- the 8th directive on statutory audits of annual accounts and consolidated accounts (Bill N°5976 filed on 9 January 2009),
- the penal liability for legal persons (Bill N°5718 filed on 20 April 2007)

France also is late for some transpositions (the 8th directive was transposed only in December 2008 – Cf. Journal Officiel dated 8 December 2008), but as regards Luxembourg, which communicates that one of Luxembourg's unique strengths is its quick decision-making process - which is definitely proven for texts and actions that are “pro business” - it is unacceptable all the more than it is a small jurisdiction.



In the framework of the debate on tax havens I wish all these texts were actually enacted and enforced.

Ignites Europe and other media have reported that Meeschaert has filed proceedings against
- UBS,
- the CSSF.

Meeschaert is also considering action against auditor Ernst & Young.

Luxembourg’s financial regulator, the CSSF, has been included because of its status as the supervisory authority in a jurisdiction where it is official in a public report that the regulator has room for interpretation and regulation that MPs and government support.

The Commission on the Financial crisis this week provided its report titled « Vers un nouveau modèle de croissance » (Towards a new model for growth).

In the framework of this blog, among the pages of the report, a couple of paragraphs relating to the financial sector are worth commenting.

« Bien que les temps où le Luxembourg était considéré, à juste titre, comme centre offshore soient révolus … » (“Although times when Luxembourg was considered, and rightly so, as an offshore center are over…”)

I am afraid Luxembourg definitely remains an offshore center. It is what is visible in The Corporate Registration with many Luxembourg-registered companies, which are linked to exotic jurisdictions that do not have the same standards of controls as Luxembourg. They are used for scams.
This is as well what is sold publicly by many professionals who explain without shame that Luxembourg gathers the advantages of an “onshore” jurisdiction because it is in the European Community” and of an “offshore” jurisdiction.

L’implication de la place de Luxembourg dans l’affaire d’escroquerie du financier américain Madoff (…) a donné lieu à des critiques peu fondées venant de l’étranger et visant la surveillance prudentielle telle qu’elle est pratiquée au Luxembourg. (“The implication of the Luxembourg financial center in the Madoff case (…) gave place to criticisms not founded coming from abroad and aiming at the prudential monitoring as it is implemented in Luxembourg”)

There is like a contradiction with what Jean-Nicolas Schaus, who has been chairing the CSSF for many years, explained in a recent interview: “The maximum of the fines is 12,500 euros. Which is very weak taking the stakes into consideration” and “It is necessary to engage the reflection on increasing our power to sanction. It would be better indeed to have more means, especially taking into consideration what exists in other jurisdictions.”, he said.

« une intégration totale de la CSSF dans un système de surveillance européen représente un grand danger dans la mesure où elle enlèverait à notre surveillance prudentielle toute marge de manœuvre en matière d’interprétation et de réglementation pourtant indispensable à une gestion flexible de la place » (“a full integration of the CSSF into a European monitoring system represents a great danger insofar as it would strip our prudential monitoring from any room for interpretation and regulation however essential to a flexible management of the center”)

This is exactly this organizational slack for interpretation and regulation that is in question with Luxalpha, which is unfortunately denied by the actors:
- Why two sensitive provisions of the UCITS directive are missing in the Luxembourg Law of 2002 (Which is not the case for the Celtic Tiger jurisdiction that is as well in crisis )?
- Why the change to the depositary’s liability ? “The concept of custody used to describe the general mission of the depositary should be understood not in the sense of “safekeeping”, but in the sense of “supervision” which implies that the depositary must have knowledge at any time of how the assets of the UCI have been invested and where and how these assets are available (…) As regards the extent of the duty of supervision of the depositary, one can consider that the depositary has discharged its duty of supervision when it is satisfied from the outset and during the whole of the duration of the contract that the third parties with which the assets of the UCI are on deposit are reputable and competent and have sufficient financial resources “ (IML 91/75 of 25 January 1991).

This is perfect illustration of what organizational slack for interpretation and regulation is in Luxembourg. UBS has discharged its duty of supervision as it is satisfied from the outset and during the whole of the duration of the contract that Madoff was reputable and competent and had sufficient financial resources.

« le rôle de la CSSF, défini à l’époque comme celui non seulement d’un contrôleur du secteur financier mais encore d’un promoteur de la place doit être revu afin d’éviter tout équivoque sur sa mission essentielle qui est celle de la surveillance prudentielle » (“the role of the CSSF, defined at the time as both a controller of the financial sector and as a promoter of the financial center, must be re-examined in order to avoid any ambiguity on its essential mission which is that of the prudential monitoring”)

I totally agree with this observation. It is quite strange to have a kind of schizophrenic regulator with two roles that are definitely not compatible.

« l’agence (LFF) contribuera à combler progressivement les lacunes qui existent au niveau de l’information et de la perception de notre pays, à condition évidemment que les réalités à la base de notre place concordent avec l’image que nous voulons en transmettre aux autres » (“the agency (LFF) will contribute to gradually fill the gaps which exist at the level of the information and the perception of our country, under the condition obviously that realities at the base of our center fit the image which we want to transmit to the others”)

I am afraid that the distorted view of the realities of Luxembourg which for a good portion this report translates does not make it possible for the agency to achieve its mission.



There are many, many other distorted views of the reality in the report. They couldn’t see the wood for the trees.

And the 21 recs formulated at the end are really poor in view of stakes for the country.

Read the report

Prime Minister Juncker was on the French radio this morning.

He wished the end of offshore centers as offshore centers “are an evil” and must be rolled. He said he was in favour of more transparency and confirmed that Luxembourg will accept the OECD standards.

The Narcotics Control Strategy Report on Luxembourg states that Luxembourg is an offshore financial center. This is as well what sells many “fiduciaries” in Luxembourg.

And this is true, because many Luxembourg-registered companies are linked to exotic jurisdictions that do not have the same standards of controls as Luxembourg. They are used for scams.


In a nutshell by combining what officially states the Narcotics Control Strategy Report on Luxembourg and Prime Minister Juncker’s statement, Luxembourg is an evil, unless it actually corrects the offshore abuses through Luxembourg.



Listen

Luc Frieden went to the USA to explain the Luxembourg views on taxes.


The wording of the press release is worth reading between the lines:

Le ministre Frieden a tenu à informer les responsables du ministère des Finances américain et de l’administration fiscale de la nouvelle position luxembourgeoise en matière d’échange d’informations sur demande conforme aux standards de l’OCDE.
(Minister Frieden made a point of informing the persons in charge of the American Ministry of Finance and the tax administration of the new Luxembourg position as regards information exchange on request in conformity with the standards of OECD.)

“made a point of informing”: by using this expression, Luxembourg shows the weakness of the jurisdiction as it relates to the USA.
“the new Luxembourg position” : it means that Luxembourg did not comply with the standards of OECD before and therefore was a tax haven.

Les autorités américaines ont salué la volonté de coopération du Luxembourg dans la lutte internationale contre la violation des lois fiscales
(The American authorities welcomed Luxembourg’s will of cooperation in the international fight against the violation of tax laws.)

“the will of cooperation”: by using this expression, Luxembourg shows the weakness of the jurisdiction as it relates to the USA. For example someone guilty “cooperates” with the police. Should Luxembourg be in a strong position, a word like “commitment” would have been used: “The American authorities greeted the commitment of Luxembourg…”

Le ministre Frieden a également rencontré des membres des deux Chambres du Congrès américain pour les convaincre que le Luxembourg ne devrait figurer sur aucune des listes qui figurent dans certaines propositions de loi actuellement en discussion au Congrès américain
(Minister Frieden also met members of parliament to convince them that Luxembourg should not be listed on any of the lists which appear in some bills currently under discussion before the American Congress.)

“to convince them” : it is not said members of parliament were convinced, exactly like French MPs.

Bob Bauman has reported that Senator Max Baucus will support an alternative text to the "Stop Tax Haven Abuse Act" that was introduced by Senator Carl Levin.
Both senators are Democrats. Max Bocus chaired the Senate Finance Committee.

This story demonstrates that like in the European Union, politics that in influenced by lobbies, decide of policies.

But if I were the leaders of a place as Luxembourg I would not be jubilant: the Madoff case showed and wil show large deficiencies in the juridiction, admitted by the head of the CSSF.

In the context of the G 20 and of the debate against tax havens, the 7th Annual Financial Due Diligence Conference specializes in cutting edge information and intelligence on Fraud, Money Laundering, Tax Evasion, Compliance, Risk Management & Asset Recovery as they relate to Offshore Financial Centers.

It will take place on 26-28 April 2009.

Power Speakers will be :
Jeffrey Owens, Director of the OECD's Center for Tax Policy and Administration, who will give a Keynote Address on 'Offshore Financial Centers: Adapting to the New Political Realities'. He will outline the global political initiatives against OFCs and the consequences of not being an acceptable international player;
Ronald Sanders, a former Caribbean diplomat, now corporate executive, is generally considered to be an expert on the role of small states in the global community, who will outline his vision of the role that OFCs can play in the modern global economy;
Bob Roach, Counsel & Chief Investigator on US Senator Carl Levin's Permanent Subcommittee on Investigations, who will give an insider's insight into the tax investigations against prominent offshore banks and their clients and explain what OFCs can expect from the Senate under a Barack Obama Administration;
Martin Kenney, one of the world's best-known asset recovery attorneys, as evidenced by an appearance on the CBS TV show '60 Minutes', who will show you techniques that have helped him successfully locate, freeze and seize concealed proceeds of crime all over the world;
Edward M. Robbins, Jr. and Bob Bernhoft, tax attorneys who came to prominence while defending billionaire UBS client Igor Olenicoff and actor Wesley Snipes, respectively, against criminal actions by the IRS, who will show you how to defend IRS administrative and criminal investigations, including taking a look at Fifth Amendment implications in offshore investigations, including UBS.

Know more

Luxembourg for Finance has put online Luc Frieden's opening speech at the spring conference of the Association of the Luxembourg Fund Industry (ALFI).

He explained the Government’s decision to fully adopt the standards of the OECD Model Tax Convention and that the Luxembourg Government insists that the exchange of information, as defined by the OECD, be adopted as the sole standard within the European Union.

What is the use of building an European Union if its members are satisfied with minimal international standards?


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