On 24 November 2020, the new Act of 8 November 2020 introducing a basic banking service for businesses was published in the Belgian Official Journal. The text inserts a new section in the Code of Economic Law (Articles 59/4 to 59/8) following the already existing provisions on the basic banking service for consumers.
The reason for this intervention is that, today, some companies and entrepreneurs appear to experience considerable difficulties in accessing even basic banking services, including the opening of a payment account. This is not only the case in sectors posing a higher risk of illicit transactions, such as the hospitality industry or diamond trade, but also for entrepreneurs seeking to bounce back after failure.
It is, however, extremely difficult – if not impossible – to start and run a business without a bank account. Pursuant to Royal Decree No 56 of 10 November 1967, undertakings are even legally required to have one. On the other hand, banks too have a legal obligation, namely to refuse any client for whom they cannot comply with their requirements under the Anti-Money Laundering Act of 18 September 2017.
The new Act of 8 November 2020 intends to remedy that problem. In the future, any undertaking, be it a natural or a legal person, established in Belgium that has at least applied for registration with the Crossroads Bank for Enterprises, is entitled, in principle, to basic banking services such as the use of a payment account. Banks refusing such services will have to state the reasons for this, unless doing so would violate anti-money laundering provisions.
After three such refusals, the undertaking can turn to a (yet to be established) “basic banking services chamber” within the Federal Public Service Economy. This chamber will then confer with the Financial Intelligence Unit (Cellule de Traitement des Informations Financières / Cel voor Financiële Informatieverwerking). If the Financial Intelligence Unit issues a favorable opinion – or if it fails to respond within 60 calendar days – the chamber will appoint a credit institution that has to provide basic banking services. There are only a limited number of grounds on which this appointed institution may still refuse to provide these services, such as the fact that the applicant already has a bank account which can be used for business payments or the fact that a member of its management has been convicted of fraud, abuse of confidence, bankruptcy fraud or forgery of documents.
The basic banking service will make it possible for businesses to perform simple financial operations, including transactions through a payment instrument, direct debits and bank transfers. The undertaking must be able to carry out these transactions through any payment instrument (debit card, online banking, banking app, counters, terminals and self-banking). This does not extend to credit cards.
As the government would explicitly oblige a given credit institution, appointed by the chamber, to provide certain banking services, one may hope that the designated institution will not be held liable if it later turns out that its client has been engaged in unlawful activities. In our view, the absence of any objection from the Financial Intelligence Unit, apparent from the appointment itself, should relieve the credit institution from any liability arising from the mere provision of its services.
It seems, however, that while its appointment as a basic banking services provider should release the designated institution from its obligation to refuse the client, it does not lift its obligation to exert continued anti-money laundering vigilance with respect to individual transactions on that account.
This will be particularly challenging for any bank that is required to provide basic banking services to a business it considers to be suspicious: on the one hand, it appears that it cannot terminate the account for reasons relating to the identity, sector or activities of the company as such, if these were known to the basic banking services chamber; on the other hand, the bank must still report individual suspicious transactions.
The new law will enter into force on the first day of the sixth month after its date of publication, i.e. 1 May 2021.
