Controls carried out
1 - PURPOSE OF THE CONTROLS :
An Order of July 5, 1996 (Article 8) lists the controls to be carried out.
The controls relate in particular to :
- the nature and description of the business,
- the source of the funds,
- the destination of the funds,
- the actual beneficial of the transaction,
- the link between the pecuniary settlement and the legal or judicial transaction carried out by the lawyer within the framework of his professional practice.
The various control points examined by the CARPA fully integrate, on the one hand, the obligations of vigilance in the fight against money laundering and the financing of terrorism, and, on the other hand, make it possible to prevent any forms of fraud.
If an operation poses a problem with regard to one or more of these control points, the CARPA may reject the operation.
It should be stressed that Article 8 of July 5, 1996, predates the European Union's AML-FT Directives and their transposition into French domestic law applicable to lawyers. The legal profession thus established at its own initiative a system stipulating identical controls to those that lawyers are now obliged to make pursuant to the AML-FT legislation.
Beyond its perimeter of subjection to the AML-FT obligations stipulated by Article L 561-3 MFC, the CARPA must be able to verify the compliance of any handling of funds carried out by lawyers.
The controls carried out pursuant to Article 8 of July 5, 1996, apply to all the handling of funds processed by the CARPA, whether or not they relate to a transaction falling within the scope of Article L.561-3-I of the Monetary and Financial Code.
The protection of lawyers against attempted manipulation for the purposes of money laundering or terrorist financing is thus ensured, in all matters, as long as they themselves handle funds accessory to the legal or judicial operations that they execute and are thus compulsorily subject to the CARPA’s controls.
Through the implementation of its controls, the CARPA is an essential actor in the self-regulation system put in place by the Bar Association in the framework of the fight against money laundering and the financing of terrorism.
2 - ORGANISATION OF THE CONTROLS
A / Management and control software for the handling of funds
The CARPAs all have a specific software for managing and assisting in controlling the handling of funds.
The software allows lawyers to work online with the CARPA and to send it in a dematerialised manner their instructions and any supporting documents relating to their cases.
This process facilitates the control of operations.
In addition, the data entered by the CARPA are systematically cross-checked with the monitoring lists of databases making it possible to identify the beneficial owners, Politically Exposed Person, natural or legal persons subject to sanctions, targeted financial sanctions (freezing of assets), countries at risk (grey or black lists of the FATF, for example).
B / Appropriate resources
Structured and trained teams in accordance with the risk-based approach, support operations through different levels of controls.
C / A risk-based approach
All the controls are also organised by applying the risk-based approach method recommended by the FATF.
D / Effective operational complementariness between the controls carried out by CARPA and those of the bank
The CARPA bank, for its part, exercises its own controls.
It verifies the origin and destination of funds entering and withdrawn from the CARPA bank account.
In the event of an anomaly, it can file a declaration of suspicion with TRACFIN, without informing the CARPA since it is prohibited by law.
Professional secrecy to which the lawyer is strictly bound prohibits him from providing a bank with the elements contained in his file. It is not to be confused with banking secrecy. On the other hand, and as indicated above (see RULE 4), the lawyer cannot oppose this professional secrecy against the CARPA.
The deontological control of the elements of the lawyer’s file is thus ensured by the CARPA, which can be provided with the documents of the file, unlike the bank.
3 - VOLUMETRY OF THE CONTROLS
The CARPAs annually control financial flows of more than €50 billion, representing an average of 7,000 transactions controlled per working day.