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The current Spanish economy is highly “bankarised”. One of the main factors in this “bankarisation” has been the implementation of tax fraud prevention measures.

According to Law 11/21 of 29 July, the limit for the use of cash in economic operations has been set at one thousand euros. If the aforementioned threshold is exceeded, the operation must be instrumented by the use of bank means of payment (a bank account) or by the issuance of nominative securities, also linked to funds deposited in an account at a credit institution.

This conditioning factor leads citizens and companies to deposit practically all of their monetary resources in a current or savings account in order to dispose of the funds deposited in them. We are talking about the “banking contract for deposit in a current account and/or savings account”.

Thus, using the funds in these accounts we weave and articulate all the daily operations (transfers, between individuals or directly via SEPA from the Bank of Spain, cash withdrawals from ATMs, card payments, direct debit of pensions, bills or refunds, payments with BIZUM, etc).

The conclusion is obvious: in practice, if we do not have a bank account, if we do not have an IBAN/SWIFT we will not be able to meet the most basic financial obligations.

Such is the extent of citizens’ “bank dependency” that the Parliament and Council issued Directive 2014/92/EU on “citizens’ right of access to basic payment accounts”. According to this “right”, exceptfor “specified reasons” (for risks arising from money laundering and/or terrorist financing) credit institutions are strictly prohibited from “denying access” to citizens to bank accounts.

But the problem doesn’t end there.

Can credit institutions “cancel” a previously opened bank account and, without further ado, “terminate” the contract between the institution and its client.

The answer has to be negative.

Banking contracts, prearranged by the credit institution, are subject, like all other contracts, to the general contracting regime.

Outside of the “specified grounds”, as long as the customer of the credit institution regularly fulfils the obligations incumbent on him, the credit institution cannot “unilaterally terminate” such contracts abruptly.

Admitting otherwise would be tantamount to allowing the term of the contract to be left to the sole discretion of the credit institution.

The “abrupt unilateral termination” of a banking contract is expressly prohibited by the Laws (art 1.256 and 1.258 Cc, arts 85.4, and 87. 3 Ley de Consumidores).

In any case, the meaning and scope of the “specified grounds” should be “qualified”: credit institutions are obliged to comply with and enforce compliance with the regulations on the prevention of money laundering and terrorist activities. In such exceptional cases, credit institutions must, in any case, act with the due diligenceof an “orderly businessman” and duly weigh up the concurrent circumstances and all the interests affected.

The Court of Justice of the European Union (CJEU) in its Judgment of 10 March 2. 016 (Case C-235/14) established this measure of “due diligence” in the application of the Money Laundering Directive by credit institutions.

The credit institution, let us not forget, is not a “public authority” (neither administrative nor judicial). According to the CJEU, it is not possible to speak of “general presumptions of suspicion of fraud” in each and every transfer of funds, as it is always necessary to give the opportunity to provide means or documents that allow the origin and regularity of the funds to be identified.

Therefore, you cannot “abruptly and unilaterally cancel” a bank account without good cause.

And neither is any “excuse” valid, nor is any prejudice allowed: the mere fact that the account holder belongs to an ethnic group or nationality does not constitute, in any way whatsoever, a well-founded cause for blocking an account. In this sense, if the credit institution, in the exercise of the aforementioned “prevention” functions, were to appreciate the existence of a possible anomaly in one or more of the customer’s account/s linked to these “assessed causes“, as a matter of minimum prudence, it should request the documentation and information relating to the customer’s identity and economic activity.

As a last resort, having previously weighed up the seriousness of the circumstances, provided that this documentation and information obligation is not duly observed by the customer or in order to avoid greater harm, the credit institution could “block” or “cancel” the account(s) affected, immediately notifying the customer concerned of this exceptional measure and giving reasons for its adoption

In the event that the credit institution abruptly and unilaterally cancels a customer’s account without having observed “due diligence”, it must then assume the liability arising from the breach of its legal and contractual duties and bear all the pecuniary damage caused by this action.

 

Navigating the legal intricacies of banking law can be challenging. If you find yourself in a situation where your credit institution abruptly terminates your account without following a proper process, you do not have to face this alone. At Navas&Cusí, we have experts in the field who can help you. Do not hesitate to contact a banking law lawyer from our team. We will support you every step of the way to ensure that your rights are respected and prevail.

 

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Navas & Cusí Abogados
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