Banking and financial law,
Economic and commercial law
1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1.er May 2021, the provisions of the Code of Economic Law ( CDE") on the basic banking service for businesses ( SBBE ") have long remained inoperative in the absence of a Royal Decree establishing the Chamber of Basic Banking Services for Enterprises (the " Room "This led to a (symbolic) award of damages to the Belgian State.
With a further delay, the law on various economic provisions and the Royal Decree on the basic banking service for businesses were finally enacted on 25 September and 16 December 2022 respectively and published together in the Belgian Official Gazette on 16 January 2023.
The law of 25 September 2022 aims, among other things, to extend the SBBE to diplomatic missions, to regulate the issue of personal data protection and to increase the scope of the delegation of powers to the King, while the Royal Decree aims to implement the provisions of the CDE by organising the functioning of the Chamber.
2 As a reminder, the SBBE was originally intended to offer "an effective solution" to companies established in Belgium that had difficulties in opening or maintaining a bank account, by granting them the right to have an account with the "minimum" payment services necessary (indeed, indispensable) for the exercise of their activity. The services in question are transfers, standing orders, direct debits, card payments and cash withdrawals and deposits.
The introduction of the SBBE was intended to address the phenomenon of de-risking which many companies have been affected by for several years, for reasons relating in particular to the strengthening of European legislation on the prevention of money laundering and the financing of terrorism, transposed in Belgium through the eponymous law of 18 September 2017 (" AML/CFT law "). It is including companies active in sectors considered more sensitive, such as diamonds, football, international trade, armaments or the hotel and catering industry.
The SBBE does not, however, supersede the AML/CFT law, as the "right of every enterprise to basic banking services" was only enshrined "without prejudice to the application of the AML/CFT law"..
3) In concrete terms, the SBBE must "guarantee" companies that have been refused a bank account for minimum payment services by at least three credit institutions the right to benefit from the SBBE and, to this end, to request the Chamber to designate a provider of this service, who will be "ex officio", as it were. Despite an ambiguity in the preparatory work of the lawIt appears that SBBE's application can be addressed to the Chamber after the third refusal with reasons.
Indeed, credit institutions are now obliged to communicate to the company the reasons for their refusal, without prejudice to the prohibition of "the use of a credit card". tipping off "The AML/CFT Act prohibits the reporting of suspicious transactions to CTIF (i.e. the prohibition of notifying a client or a third party that a case is subject to a suspicious transaction report or analysis for money laundering or terrorist financing).
The company concerned must submit its SBBE application to the Chamber by filling in the form referred to in Article 16 of the Royal Decree and attaching the required documents. For this purpose, the FPS Economy has set up a digital application which it plans to introduce within a few weeks. It will, however, still be possible to proceed by ordinary mail.
The role of the Chamber is limited to examining the admissibility of the application, taking the opinion of CTIF and checking the completeness of the file. It does not carry out any substantive checks.
Where appropriate, the Chamber shall designate a systemically important credit institution as a provider of the SBBE. In this case, the provider is legally obliged to offer the SBBE to the company concerned, subject to the grounds for refusal set out in Article VII.59/6 § 3 of the CRC (see. infraThis must be done within 10 working days. This period may be extended if the service provider has not received from the company the information necessary to enable it to fulfil its obligations under the AML/CFT Law or to ensure compliance with Articles 10 to 15 of the Royal Decree (see. infra).
Once provided by the designated provider, the SBBE can still be subsequently terminated by the provider in the cases restrictively referred to in Article VII.59/6, §2, of the CDE (see. infraAnnex II).
Credit institutions will be required to report annually to the FPS Economy, the NBB and CTIF, among other information, the number of SBBE refusals and terminations and the reasons for them.
In addition to the establishment of the Chamber and the determination of its competences, the Royal Decree lays down new measures aimed at mitigating the risks associated with money laundering and terrorist financing. They are applicable according to the category to which the company requesting the SBBE belongs (points a and b) and/or according to the nature of the services requested in the framework of the SBBE (points c and d), i.e. :
5.Additional risk mitigation requirements for companies that are entities subject to the AML/CFT lawin accordance with Article 5(1) thereoferparagraph 1er (Art. 10 of the Royal Decree) (see. infraAnnex II);
6.additional conditions, beyond those referred to in point a), applicable to diamond "traders" (art. 11 of the Royal Decree);
7.restrictions "necessary" to limit the risks associated with the use of cash (Art. 12 of the Royal Decree); and
8.additional conditions for transactions in US dollars (Art. 14 of the Royal Decree).
Failure to comply with the measures thus adopted is also grounds for refusal or (optional) termination of the SBBE, after designation by the Chamber.
9 The Council of State is competent to hear appeals against decisions of the Chamber, whether they are made by the credit institution designated as the SBBE provider or by the company that has been refused designation of a provider. In the event of an appeal by the designated provider, the obligation to provide the SBBE within the legal time limit remains, unless an application for suspension is made and is successful in parallel with the application for cancellation.
On the other hand, without prejudice to the jurisdiction of the courts, a decision to refuse to open the SBBE or to terminate it by the designated provider may be appealed to the Financial Services Ombudsman (Ombudsfin), which is thus empowered to annul the decision in question. The decision of Ombudsfin is then binding on the provider.
A summary diagram of the SBBE application process is provided in Annex I (see. infra).
At the time of writing, the Chamber has not yet been formally established, so the SBBE remains inoperative.
The Chamber will still have to adopt internal regulations, submitted to the Minister of the Economy for approval, in order to regulate the practical issues related to its functioning.
However, it can be anticipated that the newly adopted regulations will give rise to difficulties of application and interpretation for all interested parties.