The banking and finance industry plays a crucial role in the global economy, enabling the flow of capital, investments, and credit across various sectors. Banks provide a wide range of services, including lending, asset management, payments, and more. However, the inherent risks in the industry require a robust regulatory framework to protect stakeholders, including international bank creditors. This essay offers a comprehensive guide on Belgian banking law and explores how international creditors can navigate potential bank failures in Belgium.

In Belgium, as in many other jurisdictions, account holders do not legally own their deposits. Instead, they merely hold a claim against the bank, which is the legal owner of the funds deposited. This arrangement can create difficulties for account holders and creditors in the event of a bank failure, as their claims are subject to the hierarchy of creditors and the availability of funds.

There are several types of risks associated with banking, including credit risk, market risk, operational risk, liquidity risk, and legal risk. These risks can result in financial losses for banks and, consequently, their creditors. Therefore, understanding and managing these risks is critical for safeguarding investments in the banking sector.

Bank Regulation in Belgium

Banking regulation aims to maintain financial stability, protect consumers, and prevent financial crimes. Regulations set rules and standards for banks to follow, ensuring transparency, solvency, and responsible risk management. Adequate regulation minimizes the likelihood of bank failures and potential losses for creditors.

Promoting a robust risk culture within financial institutions is essential for effective risk management. This entails fostering a shared understanding of risks, their potential impacts, and the responsibilities of employees in managing them. Regulators play a vital role in setting expectations and monitoring the risk culture within banks.

International Banking and Finance in Belgium

Belgium is an attractive destination for international finance due to its strategic location, well-developed infrastructure, and strong regulatory framework. The country hosts several international banks, asset management companies, and financial services firms, making it a significant financial center in Europe.

Belgian banking law is primarily governed by the following laws and regulations:

Banking Act of 2014: This law establishes the framework for the supervision and regulation of banks, consolidating the roles of the National Bank of Belgium (NBB) and the Financial Services and Markets Authority (FSMA).

Royal Decree No. 185 of 2009: This decree sets forth prudential requirements for credit institutions, including capital adequacy, liquidity, and risk management standards.

Law of 25 April 2014 on the Status and Supervision of Credit Institutions: This law outlines the licensing requirements for credit institutions, along with the supervisory powers of the NBB and FSMA.

Law of 11 July 2018 on the Recovery and Resolution of Credit Institutions: This legislation provides a framework for the recovery and resolution of failing banks, aiming to minimize the impact on financial stability and protect taxpayers.

Anti-Money Laundering (AML) and Counter-Terrorist Financing (CTF) Laws: Belgium has implemented several laws to prevent money laundering and terrorist financing, including the Law of 18 September 2017, which transposes the EU’s Fourth AML Directive.

Creditors and Bank Recovery in Belgium

In the event of a bank failure in Belgium, creditors can utilize the legal framework to recover their investments. The Law of 11 July 2018 on the Recovery and Resolution of Credit Institutions establishes a hierarchy of claims, where different classes of creditors have priority in the distribution of assets during a bank’s resolution process. The law also provides for the use of resolution tools, such as bail-in, which may involve the conversion of debt to equity or the write-down of liabilities to recapitalize the bank and preserve its critical functions.

Furthermore, Belgium is part of the European Union’s Single Resolution Mechanism (SRM), which aims to ensure an efficient resolution of failing banks within the EU. The Single Resolution Board (SRB) works closely with national resolution authorities, including the NBB in Belgium, to coordinate and oversee the resolution process. As part of this mechanism, the European Union established the Single Resolution Fund (SRF), which can be utilized to provide financial support for the resolution of failing banks, subject to certain conditions.

In addition, depositors in Belgian banks are protected by the deposit guarantee scheme, governed by the Royal Decree of 14 November 2008. This scheme guarantees the reimbursement of deposits up to €100,000 per depositor and per bank in case of a bank’s failure.

To protect their investments and minimize potential losses in case of a bank failure in Belgium, international bank creditors should: Understand the hierarchy of claims and the resolution process, as laid down by the Law of 11 July 2018 on the Recovery and Resolution of Credit Institutions; Be aware of the role of the NBB, FSMA, SRB, and the SRF in the resolution process and the potential implications for their investments; and Monitor the financial health and risk management practices of Belgian banks to assess potential vulnerabilities and risks to their investments.