On 15 January 2024, the law on the banking oath was published in the Belgian Official Gazette. The law impacts the banking sector and only applies to certain categories of managers and employees.
What is the new law about?
The new law provides a legal basis for some basic principles, including:
- introducing individual rules of conduct;
- taking a banking oath whereby the person in question undertakes to comply with the individual rules of conduct;
- establishing a central register of disciplinary sanctions and professional bans; and
- requiring the bank service provider concerned, prior to appointment, to submit an attestation confirming that he/she is not subject to any professional ban.
The individual rules of conduct imply that each bank service provider:
- acts with honesty and integrity;
- acts in a competent and professional manner; and
- takes into account customers' interests and treats them fairly.
The new rules only apply to "bank service providers" who are:
- persons who meet the criteria of fit & proper (i.e. (i) the management body, effective management and responsible persons for the independent control functions in Belgian credit institutions, (ii) the managers of the branches of third-country credit institutions and (iii) the effective management of the agents in banking and investment services organised as a legal person);
- responsible executives, i.e. natural persons who are de facto responsible for supervising the persons under point 4;
- agents in banking and investment services who are natural persons; and
- persons directly participating in the performance of banking activities or services in the Belgian territory,
in any case when they operate in Belgium with the following targeted entities:
- Belgian or foreign credit institutions (from both the EU and third countries) and established in Belgium; or
- agents in banking and investment services acting in the name and on behalf of such credit institutions.
Hence, the new law does not apply to insurance intermediaries, creditors, investment firms or funds.
Under penalty of administrative sanction:
- Credit institutions must submit to the FSMA a list of all bank service providers working for them or acting on their behalf; and
- All endorsed entities must request a copy of an attestation from their prospective bank service provider confirming that the candidate in question is not subject to any professional ban.
Under the aforementioned law, the FSMA also has the power to take disciplinary action for non-compliance with the individual rules of conduct and/or failure to take the banking oath. In such cases, the FSMA can issue a sanction, whether a warning, reprimand or professional ban of up to three years. In the case of a warning or reprimand, it may also impose an obligation on the individual to undergo training.
Furthermore, the FSMA keeps a register of the disciplinary sanctions and professional bans it imposes, and the imposed sanctions will be published on its website in an anonymous form.
The entry into force of this new law will be determined by Royal Decree. Currently, the entry into force is scheduled for:
- 15 January 2025: for persons subject to the F&P obligation, and responsible executives operating in credit institutions.
- 15 July 2026: for other banking service providers.
The deadline for taking the oath after its entry into force will also be laid down in the Royal Decree.
For more information on this new legislation, please contact your CMS partner or CMS experts within the Banking & Finance team.
Benoît Vandervelde
Anaïs Casteur
Florence Berchem
