The Superintendence of the Financial System (SSF) has sent to the banks, cooperative banks and savings and credit societies, a circular containing the "Instructions for the initiation or termination of commercial relations with clients, partners or associates".
This circular incorporates and is based on two important assertions: that access to financial services is a fundamental right, and that banking activity is a public service, both of which are used to seek to limit freedom of contract, in the sense that banks can be forced to do so.
FUSADES asserts that these assertions are debatable and have different points of view, since solid arguments would be expected, but those provided by the SSF are rather weak, since, for example, as a legal basis it refers to Article 111 Cn, which says nothing about the subject, and to international legal bodies about which no specific provisions are indicated.
The instructions only authorize those supervised to terminate business relationships or not to initiate them in the following cases, when the client, partner or associate does not complete the information for due diligence and origin of funds, and when there are convictions for crimes related to money laundering.
In addition, they must attend the administrative measures of the FGR or judicial resolutions related to seizure, closing, opening or freezing of accounts, but this is a different matter.
In this way, the supervised entities may not terminate or refuse to initiate commercial relations with their clients, on the grounds that the media relate them to illegal activities; nor by virtue of subsection 2 of the special provision of article 2. 9 of the Instructions of the Financial Investigation Unit for the Prevention of Money Laundering and Financing of Terrorism, which authorizes the cancellation of accounts or the closing of commercial relations with clients who are presumed to be linked, directly or indirectly, to crimes related to money laundering; nor may they do so on the grounds that the client, partner or associate is a politically exposed person (PEP).
For the foundation, the instructions of the SSF have several problems.
For example, the obligation imposed to the supervised to contract except in two taxable cases, may affect the principle that the obligation to prevent and mitigate money laundering is based on a risk analysis, as established in the first recommendation of the GAFI, which begins by saying that:
"Countries should identify, evaluate and understand their risks of money laundering/financing of terrorism, and should take action, including the designation of an authority or mechanism to coordinate actions to evaluate the risks, and apply resources to ensure that the risks are effectively mitigated.
Based on that assessment, countries should apply a risk-based approach (RBA) to ensure that measures to prevent or mitigate money laundering, and terrorist financing are proportionate to the risks identified.
For FUSADES, the SSF note contains significant inconsistencies, and deficiencies in its legal grounds. Bad evaluations by the GAFI, must be prevented, since they can lead to the qualification of not complying with international standards, and be excluded from the Grupo Egmont, and with this, stop the exchange of information, and weaken the fight against corruption, and money laundering.
Therefore, FUSADES recommended in its position, to have a better balanced solution, which allows the supervised to make its risk analysis, and act accordingly, and protects the users from arbitrary decisions, could be the one considered in Article. 29 of the Special Bill for the Prevention, Control and Sanction of Money Laundering, which was presented by the FGR in October 2019 , since, in general terms, it maintains the possibility that the obligated subjects close the accounts based on a documented risk analysis, and only after a series of terms have expired in which they make available to the UAF (in the current FIU law), the information that they will close the account so that it has time to take the measures it considers pertinent.
It would be opportune to approve this new law that would modernize the regulation on money laundering.