Who is subject to the banker’s oath?

The employees in the banking sector who are subject to the banker’s oath are the banking service providers, i.e. :

1. the so-called fit & proper persons, i.e. those subject to requirements in terms of appropriate expertise and professional integrity^[1] (Categorie 1);
2. 'managers responsible', i.e. natural persons who assume de facto responsibility for, or exercise supervision over, persons referred to in point 4 (Categorie 2);
3. banking and investment services agents registered as natural persons (Categorie 3); and
4. any other person who directly participates in the exercise of banking activities, or in the provision of banking services within Belgium (Categorie 4);

in each case, if they are active in Belgium with the following entities:

• Belgian or foreign credit institutions established in Belgium^[2]; or
• banking and investment services agents acting in the name and on behalf of such credit institutions.

(hereinafter referred to as an 'Entity' or 'Entities')

The concept of 'banking service providers' covers only those natural persons who work for an Entity, and who are therefore part of its internal organization. Professional status is not a determining factor. For example, banking service providers who work for an Entity under a student employment contract, or as temporary staff or trainees, are considered to be part of the internal organization. By contrast, if an Entity has outsourced certain tasks to a third party, natural persons working for the third party are banking service providers only if they belong to at least one of categories 1 to 4, and if the third party is itself a credit institution or a banking and investment services agent.

Furthermore, the concept of 'banking service providers' is limited to natural persons active in Belgium. The nationality or place of residence of the person concerned is irrelevant in this respect.

Fit & proper persons (category 1) acting within an Entity perform, by virtue of their role, functions that are necessarily located in Belgium. They are therefore active in Belgium. Similarly, banking and investment services agents who are natural persons (category 3) are also by definition active in Belgium, since they are registered with the FSMA in the register of intermediaries in banking and investment services.

Managers responsible (category 2) within an Entity are active in Belgium if they exercise supervision of or control over category 4 banking service providers who are themselves active within Belgium. For example, the senior managers of a Belgian branch of a credit institution governed by the law of another Member State fall within the scope of the banker’s oath, but not the managers of the head office of that credit institution, even if they exercise control over, for example, the managers of the branch (unless they are actually active in Belgium).

Finally, category 4 persons acting within an Entity are active in Belgium if they carry out banking activities or provide banking services within Belgium. The question whether banking activities or services are located within Belgium arises in particular for a category 4 person active within a credit institution governed by foreign law having a branch in Belgium. In this case, the person concerned will be considered to be active in Belgium if he or she carries out banking activities or provides banking services on behalf of the Belgian branch. The following factual elements are, among others, relevant indicators:

• the person is a member of the team dedicated to the branch's activities;
• the banking services provided by the person are, in one way or another, attributed to the branch, for example by recording the relevant banking products in the branch's books;
• the person is physically present in Belgium, either permanently or by holding face-to-face meetings (except if these are only occasional).