Subject to AML-FT obligations
1 - TRACFIN BENEFITS FROM A RIGHT OF COMMUNICATION GUARANTEEING THE TRACEABILITY OF ALL FINANCIAL FLOWS TRANSITING THROUGH THE CARPAs.
It should be stressed that this right of communication relates to all financial flows processed by the CARPAs and not only those corresponding to the transactions referred to in Article L 561-3-I Monetary and Financial Code for which lawyers are personally subject to the AML-FT obligations.
Bank traceability of the transactions processed by the CARPAs has been fully ensured since January 1, 2017, since Article L. 561-25-1 of the Monetary and Financial Code provides :
“I. - The department mentioned in Article L.561-23 may request from the funds created pursuant to 9 of Article 53 of Law n° 71-1130 of December 31, 1971, information relating to the amount, the source and destination of the funds, bills or securities deposited by a lawyer, the identity of the lawyer concerned and an indication of the nature of the case registered by the fund. These funds communicate the requested information to the department mentioned in Article L.561-23 through the President of the Bar Association with which the lawyer concerned is registered".
In its successive annual activity reports, TRACFIN praised the good functioning and effectiveness of this system.
In its activity report for 2017, TRACFIN thus stated that “The communication rights exercised in 2017 with the CARPAs have, for example, made it possible to substantiate a suspicion of abuse of weakness in the context of insurance compensation, to know the destination of the funds within the framework of a transfer of property titles which could give rise to a large-scale tax evasion, but also to determine the origin of the funds of a payment of guarantee”.
In the activity report for 2018, TRACFIN once again noted : “In 2018, the communication rights sent to the CARPAs led to promising results. In total, out of the ten or so communication rights exercised, the typologies revealed are varied in nature : tax fraud, organised crime, fight against the financing of terrorism, breach of trust, money laundering in real estate. While the CARPAs must become even more responsive, these initial results underscore the relevance of the system and the preponderant role of these structures in the fight against money laundering and the financing of terrorism. A deepening of this partnership should be consolidated before 2020”.
2 - THE CARPA IS ITSELF SUBJECT TO THE OBLIGATIONS OF VIGILANCE AND DECLARATION.
Order no. 2020-115 of February 12, 2020, included the CARPAs in the list of persons subject to the vigilance and declaration obligations stipulated by the Monetary and Financial Code.
The terms of this subjugation have however been adjusted by mutual agreement between the public authorities and the legal profession so as not to call into question the relationship of trust that characterises the relationship between the lawyer and his CARPA, and that it remains a trusted partner of the law firm in the fight against money laundering and the financing of terrorism.
CARPA's perimeter of subjugation is thus the same as that of lawyers, and when CARPA is called upon to make a declaration of suspicion, it is authorised to inform the lawyer concerned thereof.
Generally, the CARPA and the lawyers are authorised to communicate to each other the information collected for the implementation of their duty of vigilance.
In the event that CARPA has to make a declaration of suspicion, it must, like lawyers (cf. ECHR, 5th section, Michaud v/ France, 6 December 2012), send it only and directly to the President of the Bar Association who will only transmit it to Tracfin after having verified its legality (and not the advisability).
3 - THE CARPA IS SUPERVISED BY SEVERAL CONTROLLERS.
Lastly, it should be noted that a “CARPA Regulatory Commission” issues opinions and recommendations relating to controls on the handling of funds to be carried out by the CARPAs.
In addition, a “CARPA Control Commission” periodically controls all the CARPAs and is empowered to impose sanctions on them when a control reveals shortcomings. This Commission draws up an annual activity report which is sent to the Keeper of the Seals, Minister of Justice.
The "CARPA Control Commission" is also responsible for monitoring compliance by the CARPAs with their obligations in the fight against money laundering and the financing of terrorism.
Finally, each CARPA must have an auditor responsible for a specific mission of monitoring compliance by CARPA with its obligations, in particular with regard to the organisation and effectiveness of the control of the handling of funds carried out by the lawyers; the annual report of this auditor is sent to the CARPA Control Commission and to the Public Prosecutor at the Court of Appeal in whose jurisdiction the registered office of the CARPA is established.