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Update 14/02/2022: the Belgian State has just been held liable for negligence in implementing the basic banking service, following numerous bank account closures. See our analysis of de-risking and the related legal liabilities.
How the basic banking service for businesses came about
In November 2020, we published an article on the Act of 8 November 2020 establishing a basic banking service for businesses. The Act, in force since May 2021, sets out a full procedure: any business refused a current account by three different banks may ultimately obtain the basic banking service, as individuals have been able to do for many years.
The Act responds to a concern that remains topical: de-risking, and the closure of bank accounts by banks, generally without reasons. The problem affects diamond dealers, construction and cleaning companies, hospitality businesses, companies active in Africa or connected to the Democratic Republic of Congo or Portugal, mining businesses, and others. Several court decisions have been handed down, some even ordering a bank to maintain a business’s accounts until the Act effectively enters into force.
The Act can only work, however, with its implementing royal decree, which must set out the practical rules, including the role of the Basic Banking Service Chamber to be created within the FPS Economy. And that royal decree is still nowhere to be seen. More than six months after the Act took effect, the Belgian State risks incurring liability in the interval. Account closures and refusals to open accounts continue. Some businesses are literally cut off from the banking system. Others are forced to carry out operations in cash, through private accounts, or even in cryptocurrencies, which is precisely what anti-money-laundering rules aim to avoid.
Why is the royal decree still not published?
A draft royal decree has existed since June 2021. It raises considerable difficulties, however, having seemingly been drafted without regard to the practice of the various actors involved in the new service: the banks, the CTIF-CFI, and others. One may ask whether the delay is due to political questions, lobbying, or other considerations.
Parliamentary questions on the delay and on account refusals
Since the Act entered into force, two members of Parliament have questioned the Government. In July 2021, Michael Freilich (N-VA) asked the Minister of the Economy why implementation was taking so long and why the 1 May 2021 deadline had been missed. The Minister then announced entry into force of the decree, still being finalised, by autumn 2021, adding that the Chamber would also operate under internal rules settling certain practical questions. Enough to postpone the service’s effectiveness a little further?
On 15 October 2021, Barbara Pas (VB) noted that businesses without a current account at Belgian banks would have to wait at least until the autumn, with demand particularly high in the diamond sector, and asked for figures on refusals by region and sector, and for a new implementation deadline. The Minister declined to provide figures, which the government does not possess.
Latest news after the Council of State’s opinion
The Council of State delivered its opinion on the draft decree on 6 September 2021. The Minister responded that amendments remained necessary on specific points, in particular to ensure compliance with the GDPR, and that his administration was preparing a revised text. He stressed the delicate balancing exercise between the basic banking service and the fight against fraud and money laundering, requiring in-depth consultation with numerous parties and authorities.
It is difficult to predict when a new royal decree can be drafted and published. In the meantime, the door appears open for the State’s liability to be engaged. Update: the Belgian State has since been held liable.
This article is a translation. Only the French version is authoritative. It is provided for information purposes and does not constitute legal advice.
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