Introduction
For both individuals and businesses, access to giro-based payments is vital. Individuals receive most of their income, such as wages or benefits, by giro. Large and now also small expenses are made by giro. The same applies to businesses: payments to and from businesses are made by giro. In short: a bank account is indispensable for participation in social economic life.
To gain access to the giro-based payment system, the individual or company must enter into an agreement with the payment service provider: the bank. A characteristic of this agreement is that the freedom of contract for banks is not unlimited. On the one hand, the freedom of contract is limited by the bank's duty to prevent money laundering and the financing of terrorism, to freeze assets (under circumstances) and to guarantee the integrity of the financial system. On the other hand, based on its duty of care, the bank is obliged under circumstances to enter into a contractual relationship with potential clients.
The integrity of the payment system
Under Article 2b of the Dutch Money Laundering and Terrorist Financing Prevention Act (Wwft), the bank takes measures to identify and assess risks of money laundering and terrorist financing. This takes into account: the type of customer, the type of product or service and the type of transaction.
In addition, the bank is obliged under the Dutch Sanctions Act to freeze the assets of persons or organizations on the sanctions list.
Finally, pursuant to (article 3:10 of) the Dutch Financial Supervision Act (Wft), the bank is obliged to pursue an adequate policy that safeguards the integrity of its business. This is understood to mean "counteracting that because of its clients the trust in the financial enterprise or in the financial markets can be damaged". In this context, the bank is obliged to conduct an investigation into the identity, nature and background of the client (also referred to as "client due diligence"). If, as a result, the bank identifies conduct or events that threaten the integrity of its business, it shall notify the Dutch Central Bank.
Due to the increasing number of regulations regarding client due diligence, banks are more cautious about entering into contractual relationships with clients with an increased integrity risk. This could make it more difficult for companies operating in certain sectors, such as the cannabis industry, to open a bank account. The bank's duty of care may provide relief in such a case.
The duty of care
The bank's pivotal social role entails a special duty of care towards clients and towards third parties. Under circumstances, this duty of care may require the bank to enter into a contractual relationship with persons or companies that it initially refused.
An eye-catching example is the Amsterdam District Court ruling of June 29, 2021. There, Rabobank refused to enter into a contractual relationship with two shareholders in a coffee shop. This refusal prevents the shareholders from participating in society.
The Amsterdam District Court ruled that Rabobank is obliged to open a bank account in this case. To this end, it considers that Rabobank did not raise any concrete objections to entering into the contractual relationship. A categorical exclusion of companies active in this sector by the bank is not allowed.
Want to know more?
Do you have questions about the termination or refusal of a bank account? If so, please contact one of our lawyers.
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