Refusing a company bank account will be more difficult in the future
Since 2003, Belgian banks have been obliged to offer basic banking services to consumers who request them. The obligation to offer these services to companies did not exist previously. Given the heavy obligations imposed on banks by anti-money laundering legislation, they prefer to determine for themselves which companies they accept as clients. As a result, companies in certain sectors have difficulties finding a credit institution willing to manage their financial affairs and sometimes face a refusal to open a bank account. To address this problem, the Act of 8 November 2020 added new provisions regarding the basic banking service for companies to the Code of Economic Law.
Starting point of the new provisions
These provisions emphasise the importance for every company to have access to a bank account, so that it can participate fully in economic life. In addition, the use of scriptural money should also be encouraged, with a view to the fight against money laundering and the financing of criminal activities.
The starting point is that every company established in Belgium has the right to open a bank account with a credit institution of its choice. The restriction to companies with a Belgian establishment unit is based on the anti-money laundering law, which is a matter of public policy. The obligations arising from this legislation would become unreasonably heavy for credit institutions if they also had to provide basic banking services to foreign companies.
The minimum services that a bank must offer largely relate to payment transactions. Payment transactions using payment instruments and credit transfers are included among these. It is important that a company is not restricted in its choice of payment instrument. In this respect, it must be possible for a company to carry out transactions not only online, but also within the branches of the credit institution.
The credit institution must state all information about the basic banking service it is to provide in a clearly visible place on its website.
Bank account refusal
Any refusal of a basic banking service by a credit institution must be expressly and adequately reasoned, unless such reasoning would jeopardise national security or public policy. The obligations arising from the anti-money laundering law can also justify a limited reasoning. Specifically if a credit institution has obligatorily reported information about a company to the Financial Information Processing Unit on the basis of the anti-money laundering law. In that case, the prohibition of disclosure arising from Article 55 of the anti-money laundering law applies.
A company to which a basic banking service has already been refused three times can apply to the basic banking service chamber. The latter will, in the month following the month in which the application was made, designate a credit institution that is obliged to provide basic banking services to the company concerned.
Because companies that are refused a basic banking service are often active in sectors sensitive to money laundering, the King must, according to the legislative proposal, develop specific risk-mitigating measures or a code of conduct for the companies in the sector concerned.
In some cases, a credit institution is obliged to refuse a basic banking service to a company.
On the one hand, anti-money laundering legislation can impose an obligation on a bank to refuse a particular client. In doing so, the credit institution must however exercise the necessary caution. The starting point remains, after all, that all companies have the right to a basic banking service.
On the other hand, the provision of a basic banking service can be refused if the company in question already has another payment account, unless that account will be closed or if that payment account is not sufficient for it to carry out its professional activity.
The basic banking service law comes into effect on 1 May 2021.
For more information, you can read everything on the website of The Chamber or read about our experience in this matter.