Edited by Fabrizio Vedana

A bank may terminate current account agreements entered into with companies wholly owned by a trust if the structure makes it impossible for the bank to identify the beneficial owner.
This was established by the Palermo Court, specialized section for business matters, in an order dated January 14, 2021.

The facts
The appellant companies, holders of bank current account agreements, invoke the precautionary protection pursuant to Article 700 of the Code of Civil Procedure, asking the Court to "determine and declare the nullity of Article 10 of the current account agreements, both with respect to the alleged abusive nature of the bank's right of withdrawal and with respect to the possibility of establishing a genuine right to the current account as established by international law... and consequently, pending the determination of the alleged contractual nullity and abusive nature of the conduct, to enjoin the bank from blocking the operation of the current accounts indicated in the narrative."
The appellants allege in fact:

• to be leading companies operating in the Sicilian construction sector and committed to
  implementation of contracts, including public works;
• of having received, since May 2019, an unmotivated communication from the bank to withdraw from the aforementioned contracts and of having unsuccessfully appealed to the Judicial Authority;
• of having therefore turned to the majority of the credit institutions present in the area to attempt to open new current account agreements, encountering in fact a generalized denial, moreover formalized by only two banks; - of having informed today's respondent of the circumstance which, "aware of the very serious consequences that would be caused by the closure of the accounts, actually decided to maintain the basic operation of the current accounts, ceasing to provide the other contractually foreseen services, but allowing the companies to carry out the innumerable transactions necessary on a daily basis and causing them to have an extremely legitimate expectation regarding the continuation of relationships classified as essential";
• having received similar notices of withdrawal in October 2020 from the bank, which, however, continued to adopt "non-linear behavior, harbinger of further confusion, continuing to maintain the operation of the relationships (while ceasing other ancillary services), but even urged client companies to apply for guaranteed financing provided for among the state measures to support businesses to deal with the pandemic crisis";
• Finally, on December 22, 2020, the bank received a further communication from the bank's front office staff, informing them that they had received direct instructions from the bank's General Management to completely freeze all accounts effective December 31, 2020. This resulted in the risk of serious and irreparable harm resulting from the inability to receive payments and fulfill obligations to employees, suppliers, and the Treasury except in cash, thus incurring violations that may also be criminally relevant. The bank, duly appearing, objected to the inadmissibility of the appeal pursuant to Article 669-septies of the Code of Civil Procedure, citing the rejection decisions already issued by this Court (both in its single-judge and collegiate composition), as well as the fact that it was filed in relation to a mere declaratory action. On the merits, he requested its rejection, reiterating the existence of the right of withdrawal exercised and, conversely, the non-existence of the "right to the current account" invoked by the appellant companies.

The court rejected the appeal, essentially deeming the bank's obligation to comply with current anti-money laundering provisions to prevail over the customer's "quasi-right" to have a current account.

A precedent that will cause discussion
The ordinance in question offers the opportunity to reflect on the withdrawal ad nutum from the current account contract and, in particular, on the sustainability, in the current economic context characterised by the essential role played by banking intermediation for the management of business activity, of a right recognised in the code of law on long-term banking relationships. ¹.
The dispute giving rise to the provision stems from the withdrawal from current account agreements, exercised, pursuant to art. 1833 of the Civil Code, by a bank against four companies belonging to the same group of companies.
The peculiarity of the case lies in the circumstance that the companies were the exclusive holders of that single current account, having attempted, in vain, to obtain the same service by turning to numerous other credit institutions.
The dissolution of the relationship would thus have risked causing a management and operational impasse, given the now central role played by dematerialized payment instruments, the use of which is, moreover, mandated by a complex regulatory framework, functional to the pursuit of objectives of general interest, such as combating tax evasion and money laundering.
The companies also complained that there was no justification for withdrawal, which was never explicitly stated or communicated, making it impossible to adapt to the bank's needs.
For its part, the bank pointed out that Article 1833 of the Civil Code does not condition the right of withdrawal to the occurrence of just cause, expressing instead full recognition of the general autonomy of private individuals to dissolve long-term relationships.
The ordinance is particularly interesting for its detailed reconstruction of the current regulatory framework, both supranational and national, which would make it difficult to recognize the existence of a true "right to a current account" and, in any case, the ability to define the service as "essential."
Not only have dematerialized payment instruments (think debit cards and credit cards) almost completely replaced traditional money, but the use of cash is actually prohibited by various regulatory provisions.
The appellant companies therefore emphasize that, in light of the domestic and supranational regulatory framework regarding the fight against money laundering and tax evasion and the traceability of payments, and given the essential role that current accounts have become for business operations, a true "right to a current account" exists in our legal system. Therefore, given the other banks' refusal to open new accounts, the respondent bank cannot withdraw from its existing accounts, which are ordinary current accounts with no credit lines and active balances.
The Palermo Court writes that it is undeniable that, in light of the regulatory developments cited by the appellants and the increasingly widespread dematerialization of money, holding a current account is becoming increasingly indispensable, not only in commercial relationships between private individuals, but also in relationships between citizens and institutions. Therefore, many argue that a genuine right to this service exists. However, the Sicilian judge states, it is equally undeniable that, de iure condito, such a right is not directly established by any provision in our legal system. Currently, a bill (no. 1712/20) is only being considered by the Senate. It would introduce Article 1857-bis of the Civil Code, which would prohibit banks from refusing to open current accounts and prohibit withdrawal from existing accounts when the balance is positive.
It was therefore a question of verifying, in the case examined, whether the existence of the right invoked by the appellants, and therefore the corresponding obligation to contract by the banks, can be configured by interpretation.
Since a legal monopoly is fundamentally excluded in the banking sector, the Court must first of all exclude the analogous applicability of Article 2597 of the Civil Code. However, it is not so obvious that Article 1679 of the Civil Code, which, within the limits of compatibility "with the company's ordinary means, according to the general conditions established or authorized in the concession deed and made known to the public," requires those who operate scheduled services under administrative concession to enter into contracts, should exclude the analogous applicability.
Indeed, although the definition of banking activity as a "public interest function" (which was instead contained in the 1936 Banking Law) has disappeared from the Consolidated Banking Act, and although the exercise of banking activity is subject to the issuance of a license (Article 14, paragraph 2, Consolidated Banking Act), on the one hand, it cannot be argued that the private activities of banks and their consequent physiological pursuit of efficiency and profitability are divorced from the general interests underlying the provision of credit and the collection of savings (Article 47 of the Constitution). Furthermore, it should also be noted that, for an ever-increasing number of purposes, it is now essential, if not de facto mandatory, to have an ordinary bank account. The Court's consideration of foreign regulations is also interesting.
In France, the ordinance specifies, the obligation for banks to enter into contracts (with reference to the opening of a basic current account) is expressly provided for by Article 312-1 of the Monetary and Financial Code;
At European level, the EU Directive 2014/92 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features, in the preamble (35 recitals) explicitly states that "It is appropriate to avoid discriminating against consumers legally residing in the Union on the basis of their citizenship or place of residence, or on any other grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union, in relation to the application to open or access to a payment account within the Union. Furthermore, Member States should ensure access to payment accounts with basic features regardless of consumers' financial circumstances, such as their employment status, income level, solvency, or bankruptcy." thus implying that opening a bank account is a “quasi-right” for European citizens.
In the Court's view, even if the right to a current account were to be affirmed, that right would still have to be exercised in compliance with the general and industry regulations governing banking, starting with the anti-money laundering regulations, which the appellants also invoke. As the respondent bank has documented, the appellant companies:

• at the date of the first notice of withdrawal (May 2019) they were wholly owned by a trust company based in Malta which in turn acts as trustee of a trust;
• As of December 31, 2019, an Italian trust company was appointed sole shareholder of all the group companies, which “acts as trustee of the trust”.

The structure described above had already made it impossible for the bank, with reference to one of the appellant companies (and likely also to the others given the identical structure), when drafting the "Customer Identification and Due Diligence Form, prepared pursuant to Articles 15 et seq. of Legislative Decree 231/2007", to identify the beneficial owner of the trust. This impossibility has not been overcome, nor has this impossibility been overcome, in the absence of the necessary documentation that allows the identification of the group's effective ownership structure.
This impossibility would have required the bank receiving the request to open a new account from the aforementioned companies to refrain from establishing the requested ongoing relationship, as provided for by Article 23 of the aforementioned Legislative Decree 231/07. Nor are the amendments introduced to the provisions of Legislative Decree 231/07 by Legislative Decree 125/19, which strengthened and expanded the tools for combating money laundering, relevant to the contrary.
Indeed, the amendments made to Article 20 (titled "risk-based approach") introduce a criterion for identifying the beneficial owner in the fifth paragraph that is only residual and certainly does not overcome the need to identify the actual ultimate beneficiary of the transactions.
The law, in fact, provides that, when the client is a private legal entity, the beneficial owner must be identified as the natural person holding the legal representation, only when it is not possible to unequivocally identify the beneficial owner in light of the criteria set out in the previous paragraphs.
The fourth paragraph, amended by the same decree 125, states that "the following are cumulatively identified as beneficial owners: a) the founders, if alive; b) the beneficiaries, when identified or easily identifiable; c) the holders of powers of legal representation, management and administration".
The sixth paragraph, in its amended text, requires the obligated parties to keep records not only of the checks carried out to identify the beneficial owner, but also "of the reasons that did not allow the beneficial owner to be identified pursuant to paragraphs 1, 2, 3, and 4 of this article."
Furthermore, neither Article 18, which governs the content of customer due diligence obligations, nor (with regard to banking activities) Article 19, which regulates the methods for fulfilling the obligations, have been modified in any way.
For all the reasons set out above, the Court therefore rejected the appeal, essentially holding that the bank's obligation to comply with the current anti-money laundering provisions prevailed over the customer's "quasi-right" to have a current account.

1. For a more detailed commentary, see “CURRENT ACCOUNT AND WITHDRAWAL AD NUTUM” by LALAGE MORMILE, ilCaso.it, January 25, 2021.