Mäeker was speaking following an announcement by LHV Pank that it would be seeking €247,000,000 as a penalty for the FIU's obtaining banking details, including account statements, from its clients, which LHV says was done illegally. Mäeker gave an interview to ERR which follows.

LHV Bank notified the Financial Intelligence Unit (FIU) of a claim for a contractual penalty of 247 million euros, referring to the Chancellor of Justice's assessment on banking secrecy and the fact that the FIU had for five years been gaining unlawful access through the enforcement register to various banks' data, including transactions and bank account statements. What is your assessment of this? Does LHV Pank have the right to claim a contractual penalty against the FIU?

We must assess that part first. The letter only arrived at our office last night. But in our view, the FIU has requested bank account statements through the enforcement register on a legal basis. Since the year 2000, the FIU has held the right to request bank account statements from banks. For the last 25 years, we have had the right to ask that. The enforcement register is actually only a channel or means through which those accounts get requested.

LHV has justified the contractual penalty by saying that according to the Chancellor of Justice's assessment, the FIU did not have the right to request this data via the enforcement register specifically, and by referring also to the decision by the Ministry of Justice and the Ministry of Digital Affairs to revoke that decision from the FIU. The question is not whether the FIU has the right to request data, but whether it had the right to request it through the enforcement register in particular.

That is indeed the question. But we must note that this has been a norm, in effect for five years already. It is not as if the FIU went around requesting from the banks and everyone just averted their eyes. It is not best practice for us from the state to be pointing fingers at each other saying "they did this" or "they did that."

The fact is that since 2020 — the first request was made on 30 September when the FIU was still under the jurisdiction of the Police and Border Guard Board — an institution under the Ministry of Justice provided us access to the enforcement register. Banks have provided bank accounts through it and the FIU has requested them.

Various parties have in fact understood this provision as meaning the FIU had this right. Now, five years later, the Chancellor of Justice has come and concluded that this provision maybe doesn't grant that right to the FIU. But the various agencies have interpreted it in the same way — those who grant the data, those who requested it, those who granted access.

How many data requests in total across all the banks could hypothetically fall under this €100,000 contractual penalty (LHV's rate set per infringement – ed.)?

We have not analyzed it in that way. Again, in our view, we have had the right to request this data. What we need to look at is that when we examine the general terms, they seem to state that there was no legal basis.
This is meant to state that the FIU or some other agency is requesting data that in fact should not have been requested.

[But] all the queries we have made through the enforcement register to banks are all justified. We have needed to obtain these bank accounts in order to detect and then prevent money laundering.

But if LHV or other banks operate with some narrower definition, where these queries should have taken place outside the enforcement register, then that's a different view of the situation.

We need to ask what interest the FIU would have had in using any channel at all if we didn't have access or the right to do so. We could then have requested the data on the basis of an order.

The starting point is that the FIU in any case has the right to request bank accounts. Now the question is whether that right existed via this specific channel or not. Various parties have interpreted over the past five years that this right did exist. And here we are.

I think it's not a good idea to point fingers at each other. Really, we need to sit down together, understand by which channels and under what conditions competent authorities have the right to request bank accounts, and then, following this debate, either change the relevant rules or leave them as they are now.

If we are talking about around 2,500 queries in the case of LHV over the last five years, then it could be deduced that with the larger banks, we are talking about tens of thousands of queries over the same period, by the FIU. In that case, the potential claim size could stretch into the billions of euros.

This is pure speculation. I haven't reviewed the precise statistics, but LHV has certainly been the largest party who we've been making these queries to over the past five years.

So, with the other banks, we're talking about smaller numbers than 2,500 per bank?

If I had to guess, then I think that would be the case. Or if speaking to the best of my knowledge, then I believe that to be the case. LHV has definitely been the biggest counterparty for us in making queries.

So altogether something like 10,000 up to...

This is speculation. I am unable to answer that question right now.

Does the FIU, in its current position, still believe that a practice should be legislated for to allow automatic queries via the enforcement register again in the future?

We need to go back to the start and ask why the enforcement register as a channel was created.

The enforcement register of course has a broader functionality, but the channel for requesting bank accounts and account-related information was established under Estonian law because the EU anti-money laundering directive is in force, and this directive obligates countries to create a central register of bank accounts so that, first and foremost, the FIU can obtain bank account information.

The state created this mechanism so that the FIU could quickly obtain this data. And naturally, we must follow the directive and draft the rules accordingly as they should be.

Since the FIU lost the ability to make automatic queries via the enforcement register, have you been making regular requests via email?

We've returned to the practices we used before — that based on orders, we have the right to request bank account statements, and that's what we're doing with the banks.

Otherwise, the FIU would not be able to fulfill its tasks arising from international standards, obligations, and EU law.

And how many such queries have you made since then?

I can't answer that. I don't know. But of course, it is our daily bread and butter to observe bank accounts, as otherwise, money laundering cannot be prevented — money laundering takes place through bank accounts.

It is for this reason that this mechanism was created as early as way back in 1989 — so that criminals receiving illicit income wouldn't be able to legitimize it.

This is the reason why the FIU was created, and a duty was imposed on banks to share confidential banking information, to identify potential money laundering sources themselves, and to notify the FIU, while our task is to track those leads, identify criminal assets, and, on detecting a crime, forward that information to the investigative bodies for further criminal proceedings.

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