Introduction of the Banker’s oath

Through a law enacted on 20 December 2023, Belgium has (re)introduced the banker’s oath. Published in the Belgian Official Gazette on 15 January 2024, the banker’s oath is a recast of the 2019 banker’s oath that never entered into force.

Scope

The banker’s oath targets:

• Belgian credit institutions;
• branches and associated agents of EEA credit institutions;
• branches of non-EEA credit institutions; and
• Belgian agents in banking and investment services acting in the name of and on behalf of Belgian or foreign credit institutions.

The following persons who work at one of the aforementioned entities will need to swear the banker’s oath:

• the individuals within credit institutions who are required to be fit and proper persons (i.e. directors, senior managers and persons responsible for the independent oversight functions of Belgian credit institutions and senior managers of branches of non-EEA credit institutions) and those required to be fit and proper persons for Belgian agents in banking and investment services that are legal entities;
• responsible managers, i.e. managers not subject to a fit and proper assessment in Belgium but who either are de facto responsible for the persons who are directly involved in the provision of banking services or exercise control over such persons. This includes senior managers of branches of EEA credit institutions;
• agents in banking and investment services that are registered as natural persons; and
• any other persons who are directly involved in the provision of banking services on Belgian territory (collectively Banking Service Providers).

Individual conduct of business rules

Pursuant to their oath, Banking Service Providers must at all times:

(a)    act with honesty and integrity;
(b)    act in a competent and professional manner; and
(c)    take into account the interests of their clients and treat them fairly.

These individual conduct of business rules are further detailed by Royal Decree, which distinguishes between rules applicable to all Banking Service Providers and additional rules for responsible managers and for fit and proper persons.

The Financial Services and Markets Authority (the FSMA) has been appointed as the competent supervisor. Although the FSMA will not systematically supervise compliance with these new obligations, it could find that an infringement has been committed pursuant to a complaint or in the course of exercising its other supervisory duties.

Sanctions can consist of the following disciplinary actions: a warning, a reprimand or a professional ban of up to three years. However, the FSMA cannot impose such disciplinary sanctions on the fit and proper persons of Belgian or non-EEA credit institutions because these persons are supervised by the European Central Bank together with the National Bank of Belgium (NBB). Similarly, the FSMA also cannot impose disciplinary sanctions on responsible managers or other persons who are directly involved in the provision of banking services of branches of EEA credit institutions if such persons are subject to a fit and proper assessment in their home Member State. If an infringement by such persons has been established, the FSMA must therefore inform the NBB or the national competent authority in the relevant country.

The FSMA will also keep a register with all the disciplinary sanctions it has imposed. Banking Service Providers will be able to obtain a certificate confirming that they are not subject to a professional ban and will need to provide their (future) employer with such a certificate when they wish to exercise one or more activities of a Banking Service Provider.

Entry into force

These new rules will enter into force:

• On 15 January 2025 for fit and proper persons and responsible managers who work at a credit institution.
• On 15 July 2026 for the other categories of Banking Service Providers

The FSMA will further determine the deadline for taking the oath once the aforementioned rules have entered into force.