In meeting my obligations under the Money Laundering and Terrorist Financing (Prevention) Act (Wwft), do I have to take account of the GDPR?
The GDPR requires that any processing of personal data must occur on a valid basis, such as a legal basis. The Wwft is a valid legal basis of this kind. As an entity with an obligation to report, you process the personal data of customers, representatives, and ultimate beneficiaries, among others. This means that, within the framework of the Wwft, you are required to process personal data for the purpose of carrying out checks on your customers.
’Know Your Customer’ checks as required by the Wwft must be carried out in accordance with the provisions of Chapter 2 of the Wwft. Among other things, this means that the identity of the customer (e.g., a buyer) and, if applicable, of the ultimate beneficiary, must be established and recorded. On the basis of the Wwft, this data must be retained for five years after the transaction or the termination of the business relationship. The same holds for data relating to unusual transactions.
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Yes. If you believe a transaction is unusual, you should report it to FIU-the Netherlands, regardless of whether it is a completed transaction or merely an intended transaction.
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Do you want to know whether FIU-the Netherlands has personal data about you and whether you can access it?
The answers to these questions can be found in articles of the General Data Protection Regulation, in the associated directives, and in the Police Data Act (Dutch acronym: Wpg) and Decree. But the bottom line is that you are not allowed to access this data with us. How is that?
All unusual transactions reported to us remain in our database for five years, as required by the Money Laundering and Terrorist Financing (Prevention) Act (Dutch acronym: Wwft). To give an impression of the size of this database, in 2022 we received over 1.8 million unusual transactions (UTRs). It is determined by law that the UTR-information we have, i.e. the unusual transactions and the associated personal data, fall under the classification State Secret – Secret, see Article 5 of the Government Information Security Decree – Special Information. Only authorized FIU employees have access to this information. Therefore, if a person asks us for access to his or her personal data, we are not allowed to provide it. After all, the information is state secret.
Unusual transactions are analyzed by FIU-the Netherlands to establish whether there are sufficient grounds to designate them suspicious. These transactions declared suspicious (STRs) may then be shared with the relevant intelligence, security and investigation services, such as the police and the fiscal intelligence and investigation service (Dutch acronym: FIOD). This is allowed since STRs are legally subject to the Wpg.
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FIU-the Netherlands stores reports of unusual transactions in a highly secure and protected database, where they are classified as “State secret – secret”. This database can only be accessed by employees of FIU-the Netherlands whose position requires such access. Nobody else has access to the database. If analysis of a given unusual transaction reveals sufficient grounds to designate it suspicious, the suspicious transaction becomes police data, which can be accessed by the investigative, intelligence, and security services. This suspicious transaction is no longer classified as “State secret – secret”, but now falls under the Police Data Act (Wet Politiegegevens).
The investigative services can use a suspicious transaction in various ways, and depending on these uses, it may end up in a prosecution file. If the suspicious transaction is included in a prosecution file, safeguards are in place to protect the safety of the reporting entity. These safeguards were further strengthened by a motion (NL) adopted by the Dutch House of Representatives in 2020.