Access to basic payment accounts and a duty to prevent money laundering - the CJEU in C-81/24 Jenec

Earlier this month, the CJEU delivered a judgment in C-81/24 LH v OTP Banka d.d., the case known as 'Jenec'. This is the first case on the interpretation of  Directive 2014/92/EU on access to payment accounts with basic features (PAD), and in particular Article 16, which provides a right of access to basic bank accounts.

 

The question referred to the CJEU by the Slovenian Okrajno sodišče v Mariboru asked whether Article 16(4) of PAD read in the light of Directive 2015/849 or the Fourth Anti-Money Launderng Directive (4AMLD), may be interpreted as authorising Member States to require banks to reject a consumer’s application to open a payment account with basic features on the ground that he or she is included in a list of the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury. 

 

This essentially required tackling the question of how the right to access payment accounts with basic features or basic bank accounts can be reconciled with the bank's duty to comply with anti-money laundering rules, and weighing two important policy goals, the financial inclusion of consumers, who have no other payment account, which is a cornerstone of financial inclusion,  and the aim to prevent the use of the EU financial system for the purposes of money laundering and terrorist financing.

 

We have earlier reported on  Advocate General Richard de la Tour's Opinion in the case. The AG was of the opinion that Article 16(4) of PAD must be interpreted as meaning that a banking institution may not refuse to open a payment account with basic features solely on the ground that the name of the consumer applying to open such an account is on the OFAC, unless, the applicable national law expressly provides for such a more stringent approach, given the minimum nature of the directives.

 

The CJEU acknowledged that the right of the consumer to open a basic bank account is dependent on compliance with the provisions relating to the prevention of money laundering and the countering of terrorist financing, and therefore that the AML rules must be considered when assessing whether or not the bank can refuse to open a basic bank account (para. 39). It has also established that 4AMLD does not provide that inclusion on an OFAC list or on any other list of that type drawn up by a third country automatically prohibits a bank from establishing a bank-customer relationship (para 45). The CJEU noted that, instead of a blanket exemption, 4AMLD adopts a risk-based approach and requires banks to conduct customer due diligence. Inclusion of a person on an OFAC list or on any other list of that type may constitute a relevant risk factor that the bank is required to take into account in its individual assessment of the risk of AML (para 51). However, it cannot be the only reason for the account's refusal.

 

The CJEU concluded that PAD must be interpreted as not permitting Member States to require banks to refuse to open a basic bank account for a consumer for the sole reason that that consumer is included on a list of persons subject to restrictive measures imposed by a third country, unless the bank has carried out an individual assessment of the risk of money laundering or terrorist financing connected with the intended business relationship. 

 

This is an important judgment that strengthens the consumers’ right of access to basic bank accounts. Banks may be overly cautious in complying with AML rules for fear of very stringent sanctions, prioritising AML compliance. It is therefore important to clarify what exactly AML compliance requires in this context. Otherwise, consumers, those who are vulnerable and in the most need of an account, might often be denied access to an account by reliance on AML provisions, whether or not such denial would be effectively justified from a risk-based perspective.

How can consumers' right to access payment accounts with basic features be reconciled with banks' anti-money laundering duties? AG de la Tour in Case C-81/24

The CJEU was recently asked to interpret Directive 2014/92/EU on access to payment accounts with basic features (PAD), which is to the best of my knowledge the first or at least one of the few preliminary rulings interpreting PAD. The question is how can the right to access payment accounts with basic features or basic bank accounts be reconciled with the bank's duty to comply with anti-money laundering rules. This essentially requires weighing two important policy goals, the financial inclusion of consumers, who have no other payment account, which is a cornerstone of financial inclusion,  and the aim to prevent the use of the the EU financial system for the purposes of money laundering and terrorist financing.

The question referred to the CJEU by the Slovenian Okrajno sodišče v Mariboru asks whether Article 16(4) of Directive 2014/92, read in the light of Directive 2015/849 or the Fourth Anti-Money Launderng Directive (4AMLD), may be interpreted as authorising Member States to require banks to reject a consumer’s application to open a payment account with basic features on the ground that he or she is included in a list of the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury. 

Article 16(1) of PAD provides a right for consumers to access basic payment accounts and confers a duty on Member States to ensure that all credit institutions or at least a sufficient number of them guarantee the provision of basic bank accounts. This right belongs to all consumers legally resident in the Member State, including asylum seekers or those with no fixed address (Article 16(2)). However, Article 16(4) provides an exception to the right. Banks can refuse the consumer's request to open the basic bank account where the opening of such an account would infringe the bank's duties to prevent money laundering and terrorism financing. The PAD therefore gives primary to national securty and financial stability matters over financial inclusion of individuals. However, the question is to what degree. The problem here was whether the mere fact of being included on an OFAC list, without having been convicted of any offence for which he is on that list, or having been subject to any restrictive measure from the United Nations, the European Union or a Member State is sufficient to constitute a breach of the provisions relating to the prevention of money laundering and terrorist financing which may therefore justify a refusal to open a payment account with basic features. Even if inclusion on such a list constitutes a special circumstance justifying increased vigilance, it was not clear whether it can justify a refusal to open a payment account with basic features.

As Advocate General Richard de la Tour notes in his Opinion delivered 4 Sepember 2025, the difficulty is that both directives are minimum harmonisation, allowing Member States to adopt more stringent measures. Nevertheless, the 4AMLD in Article 8 at minimum requires that Member States ensure banks have in place policies, controls and procedures to mitigate and manage effectively the risks of money laundering and terrorist financing identified at the level of the Union, the Member State and the bank. These should include customer due diligence set out in Article 10, which includes identifying the customer and verifying the customer’s identity on the basis of documents, data or information obtained from a reliable and independent source, assessing the purpose and intended nature of the business relationship and conducting ongoing monitoring of the business relationship. As the AG rightly notes in his analysis, while the fact of being included in OFAC may be a red flag warranting a more thorough due diligence, it should not be sufficient to outright refuse the open a basic bank account.

The AG therefore is of the opinion, that Article 16(4) of Directive must be interpreted as meaning that a banking institution may not refuse to open a payment account with basic features solely on the ground that the name of the consumer applying to open such an account is on the OFAC, unless, the applicable national law expressly provides for such a more stingent approach, given the minimum nature of the directives.

Financial inlcusion and access to payment accounts with basic features: the current state of play in the EU

Financial inclusion, or access to affordable and useful financial services, is essential for our modern-day living. Access to payment accounts or bank accounts is a cornerstone of financial inclusion. It enables access to other essential services, such as receiving salary or pensions, social benefits, paying rent, making purchases at more favourable rates, paying bills, and accessing other financial services, including credit. Basic bank accounts move consumers from unbanked to banked.

The importance of basic bank accounts is recognised by the EU. Directive 2014/92 on the comparability of fees related to payment accounts provides a right to access payment accounts with basic features (Article 16), laying down minimal rules for Member States on providing access, ensuring affordability and raising awareness. 

While the objective of the Directive is to facilitate access to basic bank accounts across the EU, the 2023 Report from the European Commission on the application of Directive 2014/92 and the 2024 report from Finance Watch on Breaking down barriers to basic payment accounts suggest the Directive falls short of meeting its objective. 

The Finance Watch study relied on mystery shopping to provide a real picture of what is happening in the EU, based on examples of selected Member States, Spain, Germany and Romania. It has been found that:

• Basic bank accounts are often not affordable, e.g. in Germany, fees can reach up to £150, and in Spain, basic bank accounts are more expensive than standard accounts;

• These accounts are frequently not accessible; e.g. banks often impose documentary requirements such as a work contract, which then leaves out the unemployed, a poof of address that prevents homeless people from accessing these accounts. Often, these accounts cannot be opened online, and banks fail to offer them proactively; instead, consumers are pushed to ask for these accounts, explaining their own vulnerability;

• Perhaps most shockingly, the study shows little awareness of basic payment accounts. Bank staff are often unaware of these accounts or their eligibility, and there is little and hard-to-access information that consumers can access themselves.

Ten years after the adoption of the Directive, many, often the most vulnerable groups, are prevented from accessing these accounts.  According to the World Bank Findex (which has no data for Luxembourg), in 2021, 3.6% of Europe’s population were financially excluded. The highest number is recorded in Romania, where 30.9% of the population aged 15 or more did not own a bank account. They are followed by Bulgaria (16%), Hungary (11.8%), Croatia (8.2%), Portugal (7.4%), Cyprus (6.87%), the Czech Republic (5.6%), etc. 

These recent results signal the need for a more robust European legal regulatory framework that strengthens the above duties of access, affordability and awareness, and a need for better enforcement of the existing national rules.