EBA欧洲银行-Letter-to-MEPs-on-the-request-to-investigate-a-possible-BUL-under-Article-17-of-Regulation-28EU2920No-10932010-24092018_4页_265kb

EBA Summary on Investigation into Pilatus Bank and AML/CFT Supervision

Core Content

The European Banking Authority (EBA) has conducted preliminary investigations into the Maltese Financial Intelligence Analysis Unit (FIAU) and the Maltese Financial Services Authority (MFSA) concerning possible breaches of Union law related to Pilatus Bank. The EBA has concluded that, based on the current circumstances and the significant supervisory actions taken by the MFSA, there is no clear and unconditional breach of Union law. However, the EBA has identified areas for improvement in the MFSA's supervisory practices and has requested regular updates and an on-site visit in mid-2019 to monitor progress.

Main Points of the Investigation

• Preliminary Enquiries: The EBA initiated preliminary investigations into both the FIAU and MFSA regarding Pilatus Bank.
• MFSA Actions: The MFSA formally recommended the withdrawal of Pilatus Bank's license due to concerns about the Ultimate Beneficial Owner (UBO) and liquidity.
• No Breach Found: Despite concerns, the EBA decided not to open a formal breach of Union law investigation, citing the lack of clear breaches and the MFSA's supervisory actions.
• Areas for Improvement: The EBA expressed concerns about the MFSA's practices in four key areas:
  • Engagement between the MFSA and FIAU during the authorisation process.
  • Robustness of due diligence checks.
  • Prudential response to AML/CFT concerns.
  • Resource allocation and risk prioritisation for private banking institutions with non-resident customers.

Key Issues in AML/CFT Supervision

Authorisation of Credit Institutions

• Legal Basis: Article 8(1) of CRD sets out the requirements for authorisation, but they are not fully harmonised.
• AML Considerations: The EBA has submitted RTS and ITS to the Commission to ensure that AML/CFT information is provided, but these are still pending endorsement.
• Need for AML Input: There is a need for AML supervisors to be involved in the authorisation process, as CRD does not mandate specific engagement between competent authorities within a Member State.

Assessment of Qualifying Holdings

• Harmonisation: The assessment of qualifying holdings is more harmonised than other areas, but there are still inconsistencies.
• Information Verification: Competent authorities face challenges in verifying the accuracy of information provided and in challenging it where necessary.
• National Constraints: Some national legal regimes restrict the use of negative information in fitness and propriety assessments.
• Post-Approval Measures: There is a need for targeted measures to address potential risks after an acquisition has been approved.
• Assessment Criteria: Article 23(1)(e) of CRD lacks clear criteria for assessing whether an acquisition could increase AML/CFT risks, leading to potential difficulties in justifying such assessments.

Prudential Supervision of AML/CFT

• Integration of Risks: There is a need to integrate money laundering (ML) and terrorist financing (TF) risks into the prudential supervision of operational risk.
• Current Framework: While CRD includes broad governance and internal control requirements, it does not specifically address ML/TF risks.
• AML/CFT Supervisors: Article 67(1)(o) of CRD allows prudential supervisors to rely on AML/CFT findings, but this may limit their direct involvement.
• Proposed Change: Including ML/TF risk in Section II of Chapter 2 of Title VII of CRD could improve clarity and ensure that prudential supervisors are actively involved in assessing these risks.

Cooperation Between Supervisors

• National Implementation: The interaction between prudential and AML supervisors is left to national implementation, leading to variability in cooperation and information exchange.
• AML Directive 5 (AMLD5): AMLD5 helps remove barriers to information exchange but does not establish positive obligations for cooperation.
• Guidelines: Joint ESA guidelines can assist, but without a more specific legislative framework, there are limits to what can be achieved.

Conclusion

The EBA remains committed to addressing AML/CFT issues and has developed a broader strategy to review the effectiveness of AML/CFT supervision across all Member States. It hopes that the joint working group on AML/CFT will consider the identified issues and work towards a more robust and effective European AML/CFT regime.