Amendment to the BES Act on the Prevention of Money Laundering and the Financing of Terrorism and the Liquid Assets Administrative Sanction Policy Douane Caribisch Nederland

Many aspects of the WWFT-BES will change. The main changes concerning the element subject to the authority of Douane Caribisch Nederland have been set out below.  These are the following:

Expansion of definition of liquid assets

Firstly, the term “money” in the definition provision has changed into “liquid assets”, and the definition has been expanded. Based on the amendment, gold and diamonds are now covered by the definition of the new term “liquid assets” in the WWFT-BES.

The FATF argued in its recommendation (number 32) that precious metals and precious stones are highly liquid by nature, easily exchangeable, and can be used to transport value. A study by the FIOD, FATF, and Europol has shown that these goods regularly have a criminal origin and that (frequent) cross-border traffic is used in the money laundering process. Moreover, practice has shown that criminals continuously invent new methods for moving relatively large sums of value outside of the sight of authorities. For this reason, a ground has been included to designate additional value-bearing objects or goods as liquid assets by means of an order in council. This ground can be used, for example, to designate other types of precious metals or precious stones or to designate other methods for easily and physically moving large sums of value.

Notice obligation for unaccompanied transport of liquid assets

Secondly, rules have been drawn up on unaccompanied transport of liquid assets, such as post packages, courier shipments, unaccompanied luggage, or container freight. The FATF identifies in its report that the focus on transport by persons in the fight against money laundering has led to little insight into unaccompanied transport of liquid assets and that the transport of liquid assets is subject to the same monitoring as unaccompanied transport of common goods. The amendment to the WWFT-BES includes a notice obligation for such cases. A notice differs from a return in the sense that a notice is submitted at the request of customs, while a return must always be submitted at the initiative of the party involved. Previously, unaccompanied transport of liquid assets was considered the regular transport of goods. For this reason, customs did not have any additional powers with respect to the unaccompanied transport of liquid assets, while this could be used for criminal purposes. By introducing the notice for unaccompanied transport, supervision and enforcement related to unaccompanied transport are embedded in the WWFT-BES.

Amounts below the threshold value of USD 10,000

Finally, a power has been introduced for customs to also request a notice for the transport of liquid assets below the threshold value (below USD 10,000) if there are signs that this transport is related to criminal activities. This power applies to both the transport by persons and unaccompanied transport. Currently, criminals can avoid customs monitoring by transporting liquid assets below the value of the amount stipulated in the WWFT-BES. This simple method of avoiding monitoring is undesirable. Based on this power, customs can request a notice in case of the transport of such liquid assets and report this notice to the Financial Intelligence Unit – Netherlands (FIU).

Moreover, the mandatory data on the return form have been expanded. A new return form has been adopted by the Minister of Finance for this reason.

Liquid Assets Sanction Policy

The FATF has made numerous recommendations that are acknowledged as the international standard for the combating of money laundering and the financing of terrorism.

One of these recommendations concerns the physical transport of money, in which respect it is – inter alia – stated that the countries must have effective, proportionate, and deterring sanctions concerning violations of the liquid assets return obligation.

In this context, amendments have been made to the WWFT-BES and the WWFT-BES Decree which will take effect as of 1 July 2021.

A new article has been introduced to the WWFT-BES Decree, which is as follows:

Article 10(a): “By way of deviation from the provisions of Articles 6 to 10, the administrative penalty to be imposed pursuant to Articles 4.2 and 4.3 will be no higher than the amount adopted for the fourth category*, referred to in Article 27(4), of the BES Penal Code.”

*The fourth category is currently USD 14,000.

The Liquid Assets Sanction Policy of Douane Caribisch Nederland will be structured as follows:

The BES criminal sanction system has a statutory maximum of USD 14,000 for violation of the intentional and non-intentional violation of the liquid assets return obligation. This means the following:

Penalty
Violation of return obligation	Amount of the administrative penalty
Non-intentional	10% of the overall value of the liquid assets in USD (up to a maximum monetary fine of USD 14,000).
Intentional	30% of the overall value of the liquid assets in USD (up to a maximum monetary fine of USD 14,000).