The introduction of the basic banking service for Belgian enterprises
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Dieter Veestraeten
Astrea, Brussels
Jan Van Loon
Astrea, Antwerp
For many years it has not been easy for entrepreneurs in sectors such as the diamond trade, sports and gaming and the catering industry to set up a business or open a bank account in Belgium. Financial institutions have frequently been hesitant to provide even a minimum of banking services as they have found it more difficult to identify their potential client and comply with anti-money laundering regulations when working with clients in these sectors. In practice, entire categories of enterprises have been virtually excluded from accessing any banking services. This is extremely problematic as a company cannot be incorporated or a business cannot be started in Belgium without having access to a Belgian bank account.
A first serious attempt to address this issue was made on 23 October 2020, as the Belgian Parliament approved a law that makes a basic banking service (including access to a Belgian bank account) available for enterprises (including self-employed persons, companies and non-profit associations), a right which private persons have enjoyed since 2003.
Pursuant to the new law, an enterprise located in Belgium which is registered with the Belgian commercial register, or which requests such registration, may be entitled to receive a right to obtain a basic banking service after its attempt to receive access to a minimum level of banking services has been refused at least three times by a financial institution.
Another requirement is that such refusal must be sufficiently motivated by the financial institution and sent to the enterprise in writing within ten business days following the receipt of the request, save for certain exceptions relating to national security, public order or anti-money laundering. The refusal must expressly provide an overview of all extra-judicial appeal procedures needed in case the enterprise wishes to contest the refusal.
An enterprise can be refused as a customer based on anti-money laundering regulations, or when it already maintains a bank account in Belgium or in another Member State of the European Union which grants access to a minimum level of banking services. The financial institution can also refuse a customer if it is able to prove that the customer terminated certain other banking services to become eligible for the basic banking service.
After three such refusals, the enterprise can request a basic banking service at the soon-to-be-founded chamber for basic banking services of the Belgian Economic Ministry. This chamber will first request advice from the Financial Information Processing Unit (FIPU), which is the Belgian Financial Intelligence Unit that deals with anti-money laundering and terrorism financing.
Pursuant to a positive advice of the FIPU – or a lack of response within 60 days – the chamber for basic banking services shall appoint a provider of basic banking services within one month after the requestor’s file has been completed. This provider will only have a limited right to refuse or later terminate (with or without notice period) the provision of banking services. The list of possible providers is not endless, as it is limited to the list of systematically important Belgian banks, as foreseen by the Belgian National Bank, which currently consists of eight banks.
The basic banking service must at least allow enterprises: (1) to conduct payment transactions, such as direct debits and bank transfers; and (2) to make cash deposits or withdraw cash, provided this is carried out in one or more EU Member States. These are also the services that must have been refused at least three times by financial institutions for the right to access basic banking services to come into existence in the first place.
The service will be offered in euros or, at the enterprise’s request, in US dollars. Enterprises must further be able to enjoy these services both physically (in the bank itself or at an ATM) and online. A debit card should therefore be made available. However, no credit may be provided under the basic banking service, nor can any transfer be executed if it would cause the debit balance to fall below zero. Access to the basic banking service cannot be made subject to the conclusion of an agreement for ancillary services either.
The new law will enter into force six months after its date of publication, giving banks enough time to prepare themselves. It is expected that one or more royal decrees will follow to determine other details of the new law, especially with regard to the risk of the use of cash, risks associated with accounts in US dollars and certain anti-money laundering matters.
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