30 May 2022
Having a bank account is necessary for a company in most cases.
It enables them to participate fully in social and economic life. Under certain circumstances, a bank can be obliged to enter into a contractual relationship with an enterprise (again). This is done on the basis of its special duty of care. In this blog I will explain if a bank is obliged to offer a business a checking account.
A bank must always consider the care that the bank is obliged to provide to a company. The appropriate care is determined by various circumstances different for each specific case. And because circumstances can change, this must be re-determined each time. It is inappropriate for a bank to exclude a certain service in advance. For example, the establishment of a standard contractual relationship in the form of a simple checking account for a company.
Furthermore, without access to a payment account, it is simply no longer possible to participate (properly) in society. It also makes general participation in society a lot more difficult. Especially in the digital age in which we now live. The refusal of a bank to enter into a contractual relationship with a company can have major consequences. In particular with regard to a checking account. This may therefore lead to the exclusion of the company from both social and economic life.
The refusal of a bank to enter into a banking relationship must always be legally tested on the basis of the banking duty of care. This also counts for the closure of a bank account by a bank. In doing so, it must weigh up the interests. For the closure of a bank account or a refusal to open a bank account to be legally valid there must be a sufficiently real and concrete risk. Think, for example, of money laundering and/or terrorist financing. The fact that a company has a significant interest in being able to use a bank account weighs heavily in favour of the company. The Supreme Court ruled on 5 November 2021 that, under certain circumstances, a bank can be obliged to restore the banking relationship.
The lawyers of our Corporate Law & Insolvency department have a great deal of experience in negotiating with banks with regard to opening and reopening checking accounts for entrepreneurs and private individuals. The Corporate Law & Insolvency department also assists entrepreneurs in the event of a denial of credit. In most cases, the negotiations lead to a restoration of the banking relationship or continuation of the credit relationship. If necessary and possible, the restoration of a banking relationship will be enforced through the courts, such as by initiating preliminary relief proceedings.
Would you like to know more about this subject? Please do not hesitate to contact us.
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