Belgian basic banking service for undertakings
As of 26 January 2023, undertakings established in Belgium can seek certain basic banking services through the Act of 8 November 2020. The recently established Chamber for basic banking services has the authority to force credit institutions to provide basic banking services to eligible undertakings established in Belgium. A royal decree has now also laid down the procedure to be followed by undertakings that want to use this service.
Measures implementing the Act are now in effect. Some undertakings (including individuals pursuing a professional activity in a self-employed capacity and certain organisations without legal personality), often active in specific sectors, may – for a variety of reasons (often related to anti-money laundering (“AML”) compliance) – have difficulties accessing such basic banking services. To address this, the Belgian legislator introduced a right to basic banking services for undertakings by means of the Act of 8 November 2020 (the “Act”). The Act entered into force on 1 May 2021 (see our earlier post).
The Royal Decree regarding the basic banking service for undertakings, adopted on 16 December 2022 (the “Decree”) implements measures regarding (among other things) the applicable procedure and the establishment of the relevant authority. The Decree was published on 16 January 2023 and will enter into force on 26 January 2023.
An undertaking rejected by three institutions can apply for the basic banking service. In a nutshell, the Act and the Decree seek to ensure that any undertaking established in Belgium that is denied a basic banking service by at least three credit institutions has access to such service. In order to benefit from this right, the undertaking will have to file an application with the Chamber for basic banking services. The Chamber will, subject to a number of conditions discussed below and in our earlier post, designate a credit institution that has to provide the basic banking service to the undertaking in question.
"Basic banking services” include the following services:
- the opening of a payment account;
- the deposit and withdrawal of cash on/from a payment account and related services; and
- the execution of payment transactions, including transfers of funds, direct debits, card or similar device payments and wire transfers (including standing orders).
The provision of a credit facility does not fall within this list and, hence, remains at the discretion of the credit institution providing the basic banking service.
Services and procedure. As set out above, the Decree provides for the establishment of the Chamber for basic banking services, a specific body set up within the Belgian Federal Public Service Economy.
- The Chamber will be composed of two civil servants and up to four private practitioners with a specific knowledge of (i) payment services, (ii) prevention of money laundering and terrorist financing and/or (iii) diplomatic affairs1.
- The Chamber will appoint and select credit institutions from the list of Belgian systemically important institutions2 that are required to provide basic banking services, in accordance with some defined criteria ensuring a proportional allocation among such providers of basic banking services3.
- Following a favourable confidential opinion from the Belgian Financial Intelligence Unit (or absent any response within 60 days) and provided that the application file is considered admissible and complete, the Chamber will designate a provider for the basic banking service and will notify its favourable decision to both the designated provider and the applicant.
- The Chamber will then also communicate the application file to the relevant credit institution, which will in principle commence the basic banking services within ten days unless it incurs a delay as a result of its AML-related obligations or refuses to provide the requested services (which is permitted on specific grounds only, e.g. if a member of the board of the applicant has been convicted for fraud).
Additional conditions for obliged entities. Where the applicant is an obliged entity within the meaning of the Belgian AML Act of 18 September 20174 (including, for example, diamond traders, real estate agents, art dealers or professional football clubs) the Decree subjects its right to basic banking services to additional conditions5. Diamond traders in particular are subject to stringent requirements. The designated credit institution may refuse or terminate the basic banking service if the obliged entity does not comply with those additional conditions.
Concluding remarks. The Decree provides helpful clarifications in terms of procedure and interaction of the basic banking service with AML regulations. This will no doubt be welcomed by credit institutions who will be requested to provide this service. It remains to be seen however how this new regime will impact the workload of credit institutions and whether the regime will effectively address de-risking concerns that triggered this piece of legislation. Finally, there are still a couple of implementing measures to be adopted before the Chamber for basic banking services will be fully operational, such as the appointment of its members and the ministerial approval of its internal rules.
Pauline Kustermans, Managing Associate in Brussels
Matthias Schelkens, Managing Associate in Brussels
Laura Savonet, Associate in Brussels
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