For fellow lawyers and accountants
You refer a file, and your first question is how far the anti-money laundering reporting duty reaches. Legal professional privilege holds for everything you learn while determining a client’s legal position or while defending that client. This page sets out where article 53 of the Belgian anti-money laundering legislation draws that line, and when the line falls away.
Where does article 53 draw the line of the reporting duty?
Article 53 of the Law of 18 September 2017 excludes from the reporting duty what a professional learns while determining a client’s legal position. The exclusion covers the lawyer, the notary, the statutory auditor, the accountant and the tax adviser. It also covers the defence or the representation of that client in or in connection with legal proceedings.
The exclusion reaches beyond the hearing itself. It also covers advice on whether to institute or to avoid proceedings. Whether you received the information before, during or after those proceedings makes no difference.
The line is not absolute. It falls away in three cases. The first is the professional taking part in the money laundering. The second is legal advice given for money laundering purposes. The third is the professional knowing that the client seeks legal advice for such purposes.
Outside those three cases the information stays out of the report. A lawyer in Belgium is also not a general obliged entity. Article 5, § 1, 28°, sets out a closed list of transactions.
The list opens with assistance in the purchase and sale of real estate or businesses, and with the management of money, securities or other assets. It then covers the opening or management of accounts and the organisation of contributions for the formation of companies. It closes with the formation, operation or management of companies, trusts or foundations. Outside that list, anti-money laundering legislation does not reach the lawyer.
Who does a lawyer report to, and what does the Bar do?
A lawyer does not report to the Belgian financial intelligence unit, the CTIF-CFI, but to the President of the Bar of their Order. Article 52 expressly departs from the ordinary reporting route.
The President of the Bar checks two things. Does the transaction fall under article 5, § 1, 28°, and does article 53 stand in the way of the report? If both conditions are met, the information goes on to the CTIF-CFI immediately and unfiltered. Nothing is rewritten and nothing is held back.
The same office is the supervisory authority for lawyers. Article 85, § 1, appoints a supervisory authority for each category. For the accountant and the tax adviser that is the Institute for Tax Advisors and Accountants. For the notary it is the National Chamber of Notaries, and for the lawyer the President of the Bar.
Article 55 further forbids any disclosure to the client or to third parties that information has gone to the CTIF-CFI or that an analysis is under way. That ban binds the President of the Bar as well. Dissuading a client from taking part in an illegal activity does not count as such a disclosure.
What did the Constitutional Court annul in judgment 114/2020?
The Belgian Constitutional Court handed down judgment no. 114/2020 on 24 September 2020. It annulled two parts of the Law of 18 September 2017, in so far as they apply to lawyers.
The first part is the second sentence of article 47, § 1, 2°. That sentence extended the reporting duty to the case where the client decides not to carry out the intended transaction.
The second part is the reference to article 5, § 1, 28°, in article 49, second paragraph. That reference obliged every member of staff and every representative of a lawyer to report personally to the CTIF-CFI when the ordinary procedure could not be followed.
The Court dismissed the remaining pleas. It did so subject to the reading in B.21, that the anti-money laundering officer at a law firm is the lawyer responsible for the file.
Does the exemption survive after 10 July 2027?
The European anti-money laundering regulation keeps the exemption. Article 70(2) of Regulation (EU) 2024/1624 holds it open for notaries, lawyers, other independent legal professionals, auditors, external accountants and tax advisers. It covers information they receive while determining a client’s legal position or while defending that client in or in connection with legal proceedings.
The same three exceptions continue to apply, as they do today under article 53. Article 70(1) also allows a member state to route the report through a designated self-regulatory body. That body passes the information on to the financial intelligence unit without delay and unfiltered. The Belgian model built around the Bar fits inside that option.
The regulation applies from 10 July 2027. For football agents and professional football clubs it applies from 10 July 2029. A firm writing its procedures today works towards that date. We support companies with in-house AML support and with an AML audit.
What does a referral change for your file?
A referral does not move the line drawn by article 53. The information you received while determining your client’s legal position stays outside the reporting duty, also once a fellow lawyer takes over the defence.
We take over fraud files from fellow lawyers, accountants and notaries. Our page on the referral of a fraud file sets out what that involves. For the company itself we work on compliance and anti-money laundering and on criminal defence.
We wrote earlier about what money laundering is and the dangers it carries.
Frequently asked questions
Must a lawyer report a suspicion of money laundering to the CTIF-CFI?
No, a lawyer informs the President of the Bar of their Order, not the Belgian financial intelligence unit. Article 52 departs from the ordinary reporting route on this point. The President of the Bar checks only whether the transaction falls under article 5, § 1, 28°, and whether article 53 rules the report out. If both conditions are met, the information goes on to the CTIF-CFI immediately and unfiltered.
When does the exclusion in article 53 not apply?
In three cases. The first is the professional taking part in the money laundering. The second is legal advice given for money laundering purposes. The third is the professional knowing that the client seeks legal advice for such purposes. Outside those three cases, information received while determining a client’s legal position stays out of the reporting duty.
Which transactions make a lawyer an obliged entity in Belgium?
Only the transactions on the closed list in article 5, § 1, 28°. The list opens with assistance in the purchase and sale of real estate or businesses, and with the management of money, securities or other assets. It then covers the opening or management of accounts and the organisation of contributions for the formation of companies. It closes with the formation or management of companies, trusts or foundations.
Who supervises a lawyer’s anti-money laundering duties?
The President of the Bar of their Order. Article 85, § 1, appoints a supervisory authority for each category of obliged entity. For the accountant and the tax adviser that is the Institute for Tax Advisors and Accountants. For the notary it is the National Chamber of Notaries, and for the lawyer the President of the Bar. The same office also receives the report under article 52.
Does legal professional privilege survive the European regulation?
Yes, article 70(2) of Regulation (EU) 2024/1624 keeps the exemption from the reporting duty for lawyers, notaries, auditors, external accountants and tax advisers. It covers information they receive from or about a client while determining that client’s legal position or while defending the client in legal proceedings. The regulation applies from 10 July 2027.