The case: what is it about?
Sauna club Yin Yang is an entertainment center in Roermond, the Netherlands, operated by Yin Yang et al. Yin Yang has a banking relationship with ING Bank N.V. (ING) (through Stichting CS Bedrijven) as part of which they (i) hold a payment account with ING and (ii) ING facilitates the deposit of cash. Yin Yang's business operations involves a large amount of cash and Yin Yang therefore makes relatively extensive use of the possibility of depositing cash.
During an investigation of the entertainment center by the police at the end of November 2016, drugs, weapons and cash were found. In addition, in November 2017, the Public Prosecutor’s Office announced that it would prosecute Yin Yang et al., on suspicion of, among other things, money laundering and fraud. In June 2018, the Public Prosecutor announced that the investigation did not reveal any criminal offences, as a result of which the prosecution was discontinued.
As a result of the search and the large amount of cash deposited by Yin Yang, ING immediately terminated the agreement to facilitate cash deposits on 10 March 2017, followed by the announcement in April 2017 that ING envisaged to terminate the banking relationship. ING took the position that Yin Yang did not provide sufficient information to identify the origin of the cash funds, as a result of which ING cannot guarantee that its payment accounts are not used for money laundering. These terminations stand. The proceedings which Yin Yang et al. started against ING in this respect failed.
In new preliminary relief proceedings in which Yin Yang et al. lodged a claim to order ING to enter into a new banking relationship and to facilitate the deposit of cash, Yin Yang et al. were more successful. The court ordered ING to allow Yin Yang to keep a payment account with ING. ING is not required to continue the associated facility for cash deposits. ING appealed the decision in cassation.
Legal question
The question in dispute is whether the special duty of care - which applies in view of the position of banks in society - can result in banks being obliged to enter into a contractual relationship with non-consumers for the provision of a payment account, or whether the principle of contractual freedom prevails.
Judgment of the Supreme Court
The Supreme Court ruled that based on the principle of contractual freedom, a bank can in principle not to be obliged to enter into a contractual relationship. Banks may have a legitimate interest in refusing clients due to supervisory requirements or integrity risks. However, according to the Supreme Court, this right is not unlimited, and, in this respect, it must be considered that at present it is almost impossible to participate in society, also for non-consumers, without a bank account.
The Supreme Court has ruled that in this case ING must enter into a banking relationship with Yin Yang. As the Court of Appeal has ruled that the bank relationship with Yin Yang was validly terminated at an earlier stage, the judgment of the Supreme Court means that ING is obliged to enter into a new contractual relationship with Yin Yang. Therefore, in deviation from the principle of freedom of contract, an obligation to contract on the part of the bank is assumed here (under circumstances).
However, the judgment is different for the facilitation of the deposit of cash. In the weighing of interests between ING and Yin Yang, ING's interest prevails here, and the Supreme Court agrees with the Court of Appeal that therefore there is no obligation for ING to facilitate the depositing of cash.
Practical interest
This judgment is potentially of great importance in practice. In derogation of the principle of contractual freedom, banks may be obliged to enter into a new banking relationship with a legal entity because of the overriding interest in participating in society. Although we already have such a regulation for natural persons (see Section 4:71f of the Financial Supervision Act, the basic bank account), this is a new development for non-consumers. The future will show what the exact impact of this ruling will be in practice, but it is certain to bring about a change.
Judgment of the Supreme Court 5 November 2021 (Dutch only).
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