The increased responsibility of the bank in the face of a right to the specific account of the financially fragile customer

Consequently, the arguments retained will demonstrate to the banker that financial fragility is an inseparable notion from the right to a bank account (A). The analysis will then be based on the fact that this fragility has an equally inseparable function, here again, of the right to a bank account (B).

 A – Financial fragility, an inseparable concept from the right to a bank account

Arguing to the banker that the notion of financial fragility is inseparable from the right to a bank account, it must be demonstrated to him that this inseparability also applies to his legal obligations in this area (1), as well as to his professional duties (2) .

1 – The inseparability of the legal obligations of the bank

While decree no. 2014-738 of June 30, 2014 established the criteria necessary for characterizing bank customers in a situation of financial fragility, decree no. 2020-889 of July 20, 202011, which entered into force on November 1, 2020  , amended the criteria for assessing by credit institutions the financial fragility of their account-holding customers. Also, a customer is now considered fragile if he accumulates five irregularities or payment incidents during the same month and no longer only following irregularities in the operation of the account or repeated payment incidents over three months. consecutive12 ; if his over-indebtedness file is being processed and no longer only if he is in a situation of over-indebtedness13 ; or if he is registered for three consecutive months in the Banque de France file centralizing check payment incidents14. Since these criteria are of a much more expansive nature than the first, the number of chances of qualifying the consumer as a financially fragile customer is increased tenfold.

Subsequently, it must be determined whether the consumer's bank has offered him a specific offer tending to allow him to benefit from certain ceilings in terms of bank charges. This is a legal obligation incumbent on the bank15. Ditto for a customer who wishes to open a deposit account and who is in a financially fragile situation.16. The specific offer is a right to an account for the most vulnerable. In practice, this therefore allows the bank to present “its” planned offer for its financially fragile customers using different media. Most often, the offer is presented on paper. However, it can also be formulated by e-mail or even by electronic message of the SMS type, from the moment when it gives rise to the signing of a contract. This signature can also take place in a dematerialized way, that is to say electronically.

This device thus promotes the transmission of information. These different support methods are now permitted since the entry into force of law n° 2004-575 of June 21, 2004 known as  LCEN17. When the consumer's situation changes and it no longer corresponds to the qualification of financially fragile, he must inform his bank of this on paper or on another durable medium.

18. As recalled by the Monetary and Financial Code19, a single and unique offer relating to financially fragile banking customers can be offered by the entire banking sector. Indeed, the criteria established and refined by decree no. 2020-889 of July 20, 2020 are binding on all French banking institutions. The name of the offer does not matter as long as it respects the texts in force.

2 – The inseparability of the professional duties of the bank

Also known as the “principle of non-interference”, the principle of non-interference by banking establishments dates from a judgment delivered by the commercial division of the Court of Cassation on January 29, 193020. This decision imposes for the first time on the banker not to intervene in the business of his customers. This principle, therefore taken up by the Monetary and Financial Code21and the Consumer Code22, can be analyzed as an obligation synonymous for some authors with "apparent paradox".

23. This principle applies to the banker in any situation in which the customer finds himself, including financial fragility. On the other hand – hence a certain paradox – this principle protects the interests of the banker since no jurisdiction can reproach him for his passivity in the face of irrational transactions on the part of his client. Having a general field of application, this principle can be invoked mainly for credit transactions as well as for the various cash services.

24. But this professional duty also does not allow the bank to intervene in the management of the account of the financially fragile client on the grounds, in particular, that the latter carries out unreasonable transactions generating bank charges.

25.Jurisprudence demonstrates the difficult articulation of the duty of non-interference with that of vigilance.

26. Indeed, concerning a financial situation of fragility as much as a so-called "healthy" situation, if the banker is bound by a principle of non-interference, he is also imposed a duty of vigilance, which obliges him to note the anomalies , in particular with regard to the movements of the accounts of their customers .

27. It is this duty that promotes the fight against credit card fraud. On the other hand, it still does not confer any right on the banker to interfere in the personal affairs of his client. However, faced with a consumer qualified as financially fragile, the banker is entitled to warn him by telephone, e-mail or SMS of his financial situation when it falters dangerously. This is also the case when the customer is about to exceed his authorized overdraft or when a check is about to be rejected.