Modern life demands a bank account. Its absence complicates payments, income collection and social integration. Yet its legal aspects often remain unknown to the general public.
The right to an account: a mechanism for inclusive banking
The legislator has created a "right to an account" to combat banking exclusion. Article L.312-1 of the French Monetary and Financial Code establishes this right for any individual or legal entity domiciled in France, as well as for French individuals living abroad.
The procedure is simple: if a bank refuses to open an account, it must issue a certificate of refusal. The applicant can then apply to the Banque de France, which will designate an institution required to open an account.
Since decree no. 2022-347 of 11 March 2022, the procedure has been refined. People whose accounts have been terminated are now considered to be without an account. An implicit refusal system has been introduced: if there is no response from the bank within 15 days, the applicant can refer the matter to the Banque de France.
Basic banking services (art. D.312-5 CMF) include in particular :
- Opening and maintaining an account
- A means of consulting your account remotely
- Transfers and direct debits
- A payment card with systematic authorisation
- Two bank cheques per month
These services must be free of charge. A bank may only close an account opened under an injunction with two months' notice and a precise statement of reasons. The Commercial Chamber (30 June 2021, no. 19-14.313) confirmed that use of the account for illegal transactions justifies termination without notice.
The deposit account agreement: a regulated contract
The Murcef Act (2001) made written agreements compulsory for deposit accounts held by non-professional individuals. Article L.312-1-1 of the CMF specifies its minimum content.
The Order of 29 July 2009 sets out the compulsory information:
- Identity of the service provider
- Account operating procedures
- Pricing
- Claims procedures
- Contract duration
This written agreement is not an empty formality. In a ruling of 1 July 1997, the Cour de Cassation (French Supreme Court) pointed out that in the absence of a written agreement, certain clauses unfavourable to the customer may be deemed unenforceable.
Rate changes are subject to a strict process: customers are informed two months before the change takes effect and have the right to cancel the contract at no cost if they disagree. Charges for banking incidents are capped for vulnerable persons (€4 per transaction and €20 per month).
The banker's duty of care: a legal obligation
When opening an account, the banker must carry out specific checks. Article R.312-2 of the CMF requires them to verify the applicant's identity and address by means of an "official document bearing a photograph".
Case law has sanctioned breaches of this obligation. In a ruling dated 23 June 2004 (no. 02-17.789), the Cour de cassation held a bank liable for accepting a suspect driving licence without thorough verification.
With regard to the fight against money laundering, Article L.561-5 of the CMF reinforces these obligations. The banker must identify the beneficial owner of the transaction by "appropriate means" and verify this information with a "documentary evidence".
For legal entities, vigilance extends to the legal existence and powers of representatives. The Court ruled (27 May 2008, no. 07-15.132) that a bank had failed in its obligations by not examining the compliance of a representative's powers with the articles of association.
For regulated professions, the banker must check that the activity complies with the professional authorisation. A ruling of 22 November 2011 (no. 10-30.101) made this clear.
Deposit account and current account: a subtle but fundamental distinction
The distinction between deposit accounts and current accounts is not always obvious. Case law reserves for current accounts a regime that derogates from the Civil Code. Group accountsJoint and several accounts also have their own legal characteristics.
- The tangle of reciprocal claims
- The principle of generality (all claims are taken into account)
- Merging receivables into a single balance
- A guarantee function
The deposit account, on the other hand, is not subject to this general allocation rule and serves mainly as a settlement mechanism.
The classification given by the bank is not decisive. In a ruling dated 8 January 2009 (no. 06-17.630), the Court of Cassation ruled that it was improper to treat a deposit account as a current account.
The payment account: an innovation for inclusive banking
Appearing with the 2014 European Directive, the payment account is defined in Article L.522-4 of the CMF. Unlike traditional bank accounts, it is held by payment institutions that are not authorised to receive repayable funds from the public.
The funds deposited are exclusively intended for the execution of payment transactions and may not be used by the institution for its own account.
This type of account is of interest to people who are excluded from the banking system. Services such as "Nickel" offer unbanked accounts that can be opened with a simple form of ID, enabling payment transactions without overdraft or credit.
The commercial court confirmed in a judgment of 10 September 2014 (CE 10 Sept. 2014, req. no. 381183) that the right to an account does not disproportionately infringe contractual freedom and does not entail any violation of the right of ownership.
The possibility of close your account free of charge with a maximum of 30 days' notice is guaranteed by article L.312-1-7 of the CMF, thus facilitating banking mobility.
A lawyer may be essential to intervene in disputes with your bank, particularly in the event of an abusive refusal to open an account, disputable clauses in the agreement, or failure to provide information on changes to charges. Our law firm regularly assists clients with these complex procedures, where a detailed knowledge of the subtleties of banking law often makes all the difference.
Sources
- Monetary and Financial Code, articles L.312-1, L.312-1-1, L.312-1-7, L.522-4, L.561-5, R.312-2, D.312-5
- Court of Cassation, Commercial Chamber, 30 June 2021, No. 19-14.313
- Court of Cassation, Commercial Division, 23 June 2004, No. 02-17.789
- Court of Cassation, Commercial Chamber, 27 May 2008, no. 07-15.132
- Court of Cassation, 1st Civil Division, 8 January 2009, no. 06-17.630
- Court of Cassation, Commercial Chamber, 22 November 2011, no. 10-30.101
- Conseil d'État, 10 September 2014, req. no. 381183
- Decree no. 2022-347 of 11 March 2022 on the right to account procedure
- Order of 29 July 2009 on relations between payment service providers and their customers
- Law no. 2001-1168 of 11 December 2001, known as the "Murcef Law".
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