Doing the shopping at the supermarket, buying something via marketplace or sending a payment request for yesterday’s dinner. In most cases, these are all payments that go through a bank account. Payments are now more often made digitally and the number of cash payments is decreasing. In addition to the normal private individual, there are also several people who try to launder money via a bank account. Banks and financial institutions are required to report unusual transactions. Because banks are on the front lines in combating money laundering and terrorist financing, they have been assigned a gatekeeper function. After all, they can research their clients, monitor transactions and report unusual transactions. The past has shown that the authorities have not complied with the Wwft sufficiently. In a settlement, ING received a record fine from the Openbaar Ministerie of a total of 775 million euros. What consequences has this had for compliance with the Wwft? Find out in this article.
The purpose of the law is clear: to prevent money laundering and terrorist financing. In this way, the Nederlandsche Bank (DNB) also supervises whether the financial system is used for this. They also enforce the law together with the Financial Market Authority. Articles 3 and 8 of the Wwft are important in the various money laundering cases. Institutions subject to the Wwft are therefore obliged to conduct client research. Important to know that this is a ‘principle-based’ study; it is not prescribed how the research should be done, but what it should yield. As a result, the banks are free to fill in their ‘Customer Due Diligence or Know Your Customer’ policy. Furthermore, they are based on art. 5 Wwft is not obliged to enter into a business relationship with clients who are not or insufficiently subject to an investigation. This can be, for example, when the identity cannot be established with certainty or when the risk is too great. No service may be provided or the service must be discontinued until recovery. Finally, there is a reporting obligation for unusual transactions, as shown in art. 16 Wwft. If there is a suspicion of money laundering or terrorist financing, this must be reported to the Financial Intelligence Unit (FUI). Lastly, there is a reporting obligation for unusual transactions, as shown in art. 16 Wwft. If there is a suspicion of money laundering or terrorist financing, this must be reported to the Financial Intelligence Unit (FUI).
Rabobank has previously been guilty of using fraud-sensitive systems. ABN AMRO is currently also under the magnifying glass. As mentioned earlier, ING is the last bank that faced big sanctions. For example, the CDD policy was insufficiently complied with, resulting in incomplete files that were ignored. Furthermore, the transaction monitoring system did not work properly because accounts were monitored to a limited extent and there were not enough staff to assess the alerts. As indicated earlier, the client survey is structured on a ‘principle-based’ basis. The DNB has also drawn up guidelines for compliance with the Wwft. Because there was no such obligation, ING was able to do long with a bad policy. For example, ING facilitated an account and 15 pay terminals to a sole proprietorship, which on paper was a trader in building materials. In reality it was a money exchange office in Suriname where money was laundered with the terminals. When accepted, no or insufficient research had been conducted into the sole proprietorship. This is one of the harrowing examples. It is unknown how many criminal transactions actually went through ING accounts. Ultimately, ING Netherlands was convicted for offenses under the Wwft and debt money laundering, which is punishable under art. 420quater Penal Code. Ultimately, ING Netherlands was convicted for offenses under the Wwft and debt money laundering, which is punishable under art. 420quater Wetboek van Strafrecht. Ultimately, ING Netherlands was convicted for offenses under the Wwft and money laundering, which is punishable under art. 420quater Wetboek van Strafrecht. After all, they settled in the affair and had to pay a fine of 775 million euros.
How does this affect the different institutions? Initially, the response was to refine the CDD policy. As a result, many people are still being hired for CDD departments at the moment. With a high salary offer and catchy texts, people with little to no experience are hired at the banks. With a stricter policy and new people, there has also been a negative effect. Banks increasingly use the option to terminate relationships. Even when there are no specific integrity risks, but money laundering risk factors are present, banks cancel banking relationships. The supervisor, the DNB, still has a certain fear. For example, some companies do not sufficiently fulfill their gatekeeper function and even fall back with the same shortcomings. The DNB therefore feels compelled to hire more manpower in order to be able to supervise. At the same time, we see that more unusual transactions are reported than ever before. For example, more than 750,000 reports were made, of which approximately 58,000 were identified as suspicious with a total value of 9.5 billion euros.
The past two years has been a turbulent year in the world of compliance. Various fines and sanctions have followed since Operation Houston. As shown before, banks polished their Know Your Customer policy. Banks increasingly used their option to terminate bank accounts. If they do this, they need to consider the interests for the accountholders as well. Before the ING affair, the court of ‘s-Hertogenbosch convicted a bank in a case where an account was terminated due to the too harsh policy of the bank. There were risk of money laundering, seeing the account holder was an coffeeshop. But in this case no concrete circumstances showed signs of money laundering. This shows that the world of compliance is a dynamic industry. The Wwft has had some revisions. Guidelines provided by supervisors such as DNB and Financial Market Authority change each years. Banks do have to comply with this rules at all times. At this speed, it is no matter if a new big compliance affair will take place, but when.
 Betaalvereniging Nederland, Factsheet Betalingsverkeer 2019, geraadpleegd van https://factsheet.betaalvereniging.nl/
 Art. 1a lid 1 Wwft juncto art. 16 lid 1 Wwft
 Kamerstukken II 2018/29, 35245, 3, p. 11.
 Vogel, C. (2018, 4 september). ING schikt voor zaak over witeaspraktijken en betaalt 775 miljoen euro. Geraadpleegd van https://www.rtlz.nl/beurs/bedrijven/artikel/4403876/ing-schikt-zaak-over-witwaspraktijken-en-betaalt-775-miljoen-euro
 Handhavingsbeleid van de Autoriteit Financiële Markten en De Nederlandse Bank, geraadpleegd van https://www.toezicht.dnb.nl/5/15/50-204888.jsp#
 Onderzoek Houston: het strafrechtelijk onderzoek naar ING Bank N.V. Feitenrelaas en Beoordeling Openbaar Ministerie, p. 5, geraadpleegd van https://www.fiod.nl/wp-content/uploads/2018/09/feitenrelaas_houston.pdf
 Kamerstukken II 2007/09, 31238, 3, p. 20.
 RTL Z. (2013, 29 oktober). Rabobank schikt Libor-fraude. Waar gaat het om? Geraadpleegd van https://www.rtlz.nl/algemeen/economie/artikel/2297306/rabobank-schikt-libor-fraude-waar-gaat-het-om
 FD. (2019, 26 september 2019). OM merkt ABN AMRO aan als verdachte in witwaszaak. Geraadpleegd van https://fd.nl/ondernemen/1318132/om-onderzoekt-abn-amro-vanwege-naleving-witwaswet
 De Nederlandse Bank, Leidraad Wwft en Sw. Geraadpleegd van https://www.toezicht.dnb.nl/binaries/50-212353.pdf
 Feitenrelaas en Beoordeling Openbaar Ministerie, p. 15.
 Feitenrelaas en Beoordeling Openbaar Ministerie, p. 19.
 Feitenrelaas en Beoordeling Openbaar Ministerie, p. 20.
 Leupen, J. & Rooijers, E. (2020, 3 januari). Banken betalen vorstelijk om honderden ‘Sherlocks’ te vinden in de leeggeviste markt. Geraadpleegd van https://fd.nl/ondernemen/1327786/banken-betalen-vorstelijk-om-honderden-sherlocks-te-vinden-in-een-leeggeviste-markt
 Artikel 35, Nederlandse Vereniging van Banken: Algemene bankvoorwaarden 2017.
 J. van Bekkem, ‘Neveneffecten van de Wwft’, TFR, 2020 nr. 3.
 Jaarverslag DNB, p. 55.
 FUI-Nederland Jaaroverzicht 2018, p. 16, geraadpleegd van https://www.fiu-nederland.nl/nl/jaaroverzicht-2018-gepubliceerd
 Hof ’s-Hertogenbosch 10 mei 2011, ECLI:NL:GHSHE:2011:BQ4142.
 Hof ’s-Hertogenbosch 10 mei 2011, ECLI:NL:GHSHE:2011:BQ4142, r.o. 4.12.