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In an article of November 2021 on the basic banking service for businesses, meant to resolve the difficulties and refusals businesses face when opening a bank account, we discussed the liability of the Belgian State towards businesses left unable to open an account. We also raised the prospect of the State being held liable for legislative negligence: the Act of 8 November 2020 on the basic banking service for businesses, in force since May 2021, still could not be applied, for lack of the royal decree needed to implement it.
What had to happen, happened. On 6 December 2021, the Dutch-speaking Brussels enterprise court heard a case of de-risking of a business renting properties to sex workers. The bank had closed its accounts without reasons, with notice. No bank would subsequently open an account for the business [1].
The court dismissed all claims against the bank. It nonetheless found that the Belgian State had been negligent in its capacity to help businesses open a bank account and to safeguard freedom of trade. The State was ordered to pay symbolic damages of EUR 2,500 [2]. The Belgian State has appealed.
The Economy Minister reacts: both the Act and the royal decree must be revised
Questioned in Parliament, the Minister of the Economy stated on 12 January 2022 that the Act of 8 November 2020 needed revision in order to create a sufficient legal basis for the processing of personal data, and that he was awaiting an opinion from the Data Protection Authority.
The Minister’s stated objective was to adopt the implementing measures before the end of the first half of 2022 [3]. In the meantime, the Belgian State remains exposed to further claims. By adopting an unworkable law, by requiring businesses to hold a bank account, and by delaying a solution, it opened a Pandora’s box.
Many businesses are today in a difficult position. Their accounts have been closed by their bank, and every Belgian bank refuses to open a new one. They cannot meet their financial obligations: paying rent and suppliers, collecting invoices, and so on. The available solutions are few and complex to implement.
[1] Brussels Civil Court (Dutch-speaking), 6 December 2021, unreported, R.G. 19/3281/A.
[2] The government has appealed against this decision.
[3] Oral questions and answers, Committee on the Economy and Consumer Protection, sitting of 12 January 2022, p. 14.
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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