Banks have a duty of care to their customers. When terminating a credit relationship, the bank quite often forgets to comply with its duty of care. In this case, the interlocutory relief judge stopped Rabobank in its tracks. Rabobank was also ordered to reimburse the expenses of the injured party. Corporate lawyer Dirk de Waard explains.
Rabobank customer gets a bad press
Meat Plus B.V. is a company that had been banking with Rabobank for more than a decade since its incorporation. In an article, the NRC suggested out of nowhere that many years ago Meat Plus B.V. had traded with persons on a US sanctions list. Salient detail: according to the NRC, Rabobank turned a blind eye at that time and did not intervene, even though it knew about the transactions.
Rabobank takes management measures and threatens to terminate credit relationship
After Rabobank learned of the NRC article, it announced its intention to terminate the credit relationship with Meat Plus B.V. and block the bank account. Rabobank indicated that it would only refrain from this action if Meat Plus B.V. cooperated fully by providing (inter alia) all information on these transactions to Rabobank. In addition, Meat Plus B.V. drew up a draft business plan and a draft compliance policy to prevent any malpractices in the future.
Rabobank takes management measures and threatens to terminate credit relationship
This was to no avail, since Rabobank indicated that it would not undo the management measures taken. Thus Rabobank terminated the credit relationship with Meat Plus B.V., with far-reaching consequences for Meat Plus B.V. As a result, Meat Plus B.V. saw no other option but to initiate proceedings and seek an order in injunction proceedings that Rabobank (inter alia):
“facilitate and continue to facilitate Meat Plus on the Rabobank account in the name of Meat Plus in the same manner as it did before termination”.
Rabobank found to have acted wrongly and in breach of its duty of care
In its judgment, the interlocutory relief judge gave Rabobank a ticking off. The judge held that Rabobank should never have acted in this way and was in breach of its duty of care. For example, the judge gave significant weight to the fact that:
- the transactions dated from 2010 to 2013, a period when Rabobank had significantly less stringent requirements;
- Rabobank saw no reason to block the transactions at the time, even though it was aware of them and Meat Plus B.V. did not know it was acting in violation of sanctions laws;
- Meat Plus B.V. never knowingly or unknowingly acted subsequently in error;
- Rabobank also failed to adequately demonstrate that the management measure was necessary, not least because Meat Plus B.V. was cooperating at all times with Rabobank and providing Rabobank with the requested information.
Rabobank was found to have acted wrongly and negligently by failing to properly investigate
The interlocutory relief judge also made it clear that Rabobank had acted negligently by failing to conduct further investigations. Rabobank’s management measure, it emerged at the hearing, had been taken solely on the basis of the NRC newspaper article. As simple as that. And by doing so, Rabobank was also in breach of its duty of care.
Rabobank could have satisfied its duty of care with less severe measures, the interlocutory relief judge said
The imposition of the management measure was, in the judge’s opinion, also contrary to the principles of proportionality and subsidiarity in all the circumstances of the case.
Indeed, Rabobank failed to put forward a plausible defence that it could not suffice with less far-reaching or intrusive management measures, for example, by imposing a ban on:
- trade with certain countries or regions; and/or
- financial transactions with parties not directly involved in the transactions or with parties located in certain regions.
Case law establishes the duty of Rabobank to carefully weigh interests
Thus, Rabobank failed to adequately observe the duties of investigation, advice, information and warning, as set out by the Dutch Supreme Court in Promontoria in 2020.
By failing to comply with this duty of care, Rabobank breaches the additional application of the requirement of reasonableness and fairness (Book 6 Article 248 (1) of the Dutch Civil Code. This standard should weigh up the relative knowledge and professionalism of the bank against that of its customer. If this standard is breached, the bank acts negligently. Rabobank should reimburse Meat Plus B.V.’s costs.
Besides having to lift the management measures, Rabobank also had to pay the costs of the injunction proceedings. Calculated at the liquidation rate, Rabobank was ordered to reimburse Meat Plus B.V. for, inter alia, its legal fees.
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