Over the years, financial system regulations have been largely aimed at preventing money laundering and the financing of terrorism (AML/CFT). These measures, promoted by international organizations and adopted at both national and international levels, sometimes lead to changes in consumer relationships between banking financial institutions and their clients. One such change is the unilateral closure of bank accounts, a practice fully justified by security and regulatory compliance criteria, but which at times poses challenges from the perspective of consumer rights.
Financial system companies are required to implement procedures and mechanisms to identify and mitigate risks associated with money laundering and terrorism financing. These include identifying irregular transactions and closing bank accounts that may be involved in activities deemed risky or illicit.
It is important to note that banking entities operate under the principle of contractual freedom, allowing them to set conditions for financial services, such as financing amounts, terms, interest rates, and most notably, choosing which clients to contract with. This is done to mitigate key risks faced by financial institutions, namely credit risks—potential losses due to debtor defaults—and reputational risks, which can undermine consumer trust, impacting financial stability. Inadequate risk management can reduce credit availability and even trigger financial crises.
For this reason, Peruvian financial system regulations seek to balance market stability with consumer protection. The supervision by the regulatory authority (SBS) and the enforcement of consumer protection regulations by Indecopi's Consumer Protection Bodies are essential to ensuring a solid financial environment where savings and investment can flourish while preventing AML/CFT activities.
Preventing AML/CFT is a priority, as these illicit activities threaten financial system stability and national security. Prevention procedures are based on international regulations, such as the Financial Action Task Force (FATF) guidelines, which outline risk-based approaches for national implementation. Key actions include customer due diligence, monitoring suspicious transactions, collaboration between financial institutions and authorities, and imposing penalties on individuals who facilitate these illicit activities.
Financial institutions play a crucial role in this process, as they must establish internal controls to detect and report to the Financial Intelligence Unit (UIF). Additionally, ongoing staff training and the use of advanced technologies, such as artificial intelligence and big data analytics, have significantly enhanced the ability to identify patterns related to money laundering and terrorism financing. However, for these strategies to be effective, strong regulatory frameworks are essential.
Sectoral regulations allow financial institutions to refuse, modify, or terminate user contracts if such actions are based on prudential regulations. Contractual forms inform users of potential situations that could affect their contractual relationship.
In this regard, Article 41 of the Financial System Market Conduct Management Regulation (RGCM) sets out the guidelines under which financial institutions may unilaterally modify or terminate contracts with users. This provision aims to ensure financial system stability and mitigate risks related to over-indebtedness, lack of transparency, and money laundering.
In parallel, Article 85 of the Consumer Protection Code (CDPC) grants financial institutions the authority to decide on entering into or modifying contracts with users based on factors such as customer profiles, risk levels, credit history, over-indebtedness, and transparency. This authority also applies when a user is linked to the AML/CFT prevention system.
Thus, regulations seek to protect financial system stability, prevent over-indebtedness, and combat AML/CFT. However, regulations also mandate that financial institutions inform clients in advance about potential actions and maintain documented records to ensure transparency and regulatory compliance.
Accordingly, Indecopi has consistently upheld the validity of unilateral account closures as a measure to protect financial system stability, prevent over-indebtedness, and, most importantly, combat AML/CFT. However, the superior authority of the consumer protection bodies establishes that when analyzing alleged infractions related to account blocking and/or closure due to prudential regulations, the procedure set out in Article 41 of the RGCM must be followed. This consists of two stages: (i) verifying all evidentiary material to determine whether prudential regulations justify the account blocking or closure, and (ii) once the blocking or closure is enacted, notifying the consumer within seven (7) business days of execution.
Therefore, when contract modifications or terminations are based on prudential regulations, financial institutions are not required to provide clients with prior notification as mandated by law.
This is because prudential regulations include those related to managing over-indebtedness risks for retail debtors or considerations of a client’s profile concerning AML/CFT prevention systems.
In this context, financial institutions may decide whether to enter into contracts with users based on specific risk conditions, credit behavior, product characteristics designed for different markets, and transparency deficiencies.
Thus, the closure of bank accounts is a legitimate and effective tool in the fight against money laundering and terrorism financing. However, its application must be balanced and based on a well-founded risk assessment. A risk-based approach, along with transparency mechanisms and consumer protection measures, is key to ensuring a secure and equitable financial system.