Contents
Judgment of the Court (Fourth Chamber)11 June 2026note(Reference for a preliminary ruling — Approximation of laws — Financial services — Access to a payment account with basic features — Directive 2014/92/EU — Article 16(4) — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive (EU) 2015/849 — Consumer included on the list of the United States Office of Foreign Assets Control — Refusal to open such a payment account)In Case C‑81/24 [Jenec],noteREQUEST for a preliminary ruling under Article 267 TFEU from the Okrajno sodišče v Mariboru (Local Court, Maribor, Slovenia), made by decision of 25 January 2024, received at the Court on 31 January 2024, in the proceedingsLHvOTP banka d.d., formerly NOVA KREDITNA BANKA MARIBOR,THE COURT (Fourth Chamber),composed of I. Jarukaitis (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fourth Chamber, M. Condinanzi, N. Jääskinen and R. Frendo, Judges,Advocate General: J. Richard de la Tour,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– LH, by A. Mužina, odvetnik,– OTP banka d.d., formerly NOVA KREDITNA BANKA MARIBOR, by A. Mitić, odvetnica,– the Slovenian Government, by J. Morela, acting as Agent,– the European Parliament, by A. Droin, J. Etienne and M. Peternel, acting as Agents,– the Council of the European Union, by I. Gurov, P. Mahnič and K. Pleśniak, acting as Agents,– the European Commission, by B. Rous Demiri, P. Vanden Heede and G. von Rintelen, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 September 2025,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 16(4) of Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (OJ 2014 L 257, p. 214), and of Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2The request has been made in proceedings between LH, a natural person, and OTP banka d.d., formerly NOVA KREDITNA BANKA MARIBOR (‘OTP Bank’), concerning the opening of a bank account.
Legal context
European Union law
Directive 2014/92
3Recitals 34 and 47 of Directive 2014/92 are worded as follows:(34) Member States should guarantee that consumers who intend to open a payment account are not discriminated against on the basis of their nationality or place of residence. While it is important for credit institutions to ensure that their customers are not using the financial system for illegal purposes such as fraud, money laundering or terrorism financing, they should not impose barriers to consumers who want to benefit from the advantages of the internal market by opening and using payment accounts on a cross-border basis. Therefore the provisions of [Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015 L 141, p. 73), as amended by Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 156, p. 43) (“Directive 2015/849”)] should not be used as a pretext for rejecting commercially less attractive consumers.…(47) Credit institutions should refuse to open or should terminate a contract for a payment account with basic features only in specific circumstances, such as non-compliance with the legislation on money laundering and terrorist financing or on the prevention and investigation of crimes. Even in those cases, a refusal can only be justified where the consumer does not comply with that legislation and not because the procedure to check compliance with the legislation is too burdensome or costly. …’
4Article 16(1), (2) and (4) of that directive states:1. Member States shall ensure that payment accounts with basic features are offered to consumers by all credit institutions or a sufficient number of credit institutions to guarantee access thereto for all consumers in their territory, and to prevent distortions of competition. …2. Member States shall ensure that consumers legally resident in the [European] Union, including consumers with no fixed address and asylum seekers, and consumers who are not granted a residence permit but whose expulsion is impossible for legal or factual reasons, have the right to open and use a payment account with basic features with credit institutions located in their territory. ……4. Member States shall ensure that credit institutions refuse an application for a payment account with basic features where opening such an account would result in an infringement of the provisions on the prevention of money laundering and the countering of terrorist financing laid down in Directive [2015/849].’
Directive 2015/849
5Recitals 22 and 30 of Directive 2015/849 are worded as follows:(22) The risk of money laundering and terrorist financing is not the same in every case. Accordingly, a holistic, risk-based approach should be used. The risk-based approach is not an unduly permissive option for Member States and obliged entities. It involves the use of evidence-based decision-making in order to target the risks of money laundering and terrorist financing facing the Union and those operating within it more effectively.…(30) Risk itself is variable in nature, and the variables, on their own or in combination, may increase or decrease the potential risk posed, thus having an impact on the appropriate level of preventative measures, such as customer due diligence measures. Therefore, there are circumstances in which enhanced due diligence should be applied and others in which simplified due diligence may be appropriate.’
6Article 1(1) of that directive provides:‘This Directive aims to prevent the use of the Union’s financial system for the purposes of money laundering and terrorist financing.’
7Article 8 of that directive states:1. Member States shall ensure that obliged entities take appropriate steps to identify and assess the risks of money laundering and terrorist financing, taking into account risk factors including those relating to their customers, countries or geographic areas, products, services, transactions or delivery channels. Those steps shall be proportionate to the nature and size of the obliged entities.…3. Member States shall ensure that obliged entities have in place policies, controls and procedures to mitigate and manage effectively the risks of money laundering and terrorist financing identified at the level of the Union, the Member State and the obliged entity. Those policies, controls and procedures shall be proportionate to the nature and size of the obliged entities.4.The policies, controls and procedures referred to in paragraph 3 shall include:(a) the development of internal policies, controls and procedures, including model risk management practices, customer due diligence, reporting, record-keeping, internal control, compliance management including, where appropriate with regard to the size and nature of the business, the appointment of a compliance officer at management level, and employee screening;…’
8Article 13 of that directive provides:1.Customer due diligence measures shall comprise:(a) identifying the customer and verifying the customer’s identity on the basis of documents, data or information obtained from a reliable and independent source …;(b) identifying the beneficial owner and taking reasonable measures to verify that person’s identity so that the obliged entity is satisfied that it knows who the beneficial owner is …;(c) assessing and, as appropriate, obtaining information on the purpose and intended nature of the business relationship;(d) conducting ongoing monitoring of the business relationship including scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the obliged entity’s knowledge of the customer, the business and risk profile, including where necessary the source of funds and ensuring that the documents, data or information held are kept up-to-date.…2. Member States shall ensure that obliged entities apply each of the customer due diligence requirements laid down in paragraph 1. However, obliged entities may determine the extent of such measures on a risk-sensitive basis.…4. Member States shall ensure that obliged entities are able to demonstrate to competent authorities or self-regulatory bodies that the measures are appropriate in view of the risks of money laundering and terrorist financing that have been identified.…’
9The first subparagraph of Article 14(4) of Directive 2015/849 provides:‘Member States shall require that, where an obliged entity is unable to comply with the customer due diligence requirements laid down in point (a), (b) or (c) of the first subparagraph of Article 13(1), it shall not carry out a transaction through a bank account, establish a business relationship or carry out the transaction, and shall terminate the business relationship and consider making a suspicious transaction report to the [Financial Intelligence Unit] in relation to the customer in accordance with Article 33.’
10Under Article 18 of that directive:1. In the cases referred to in Articles 18a to 24, as well as in other cases of higher risk that are identified by Member States or obliged entities, Member States shall require obliged entities to apply enhanced customer due diligence measures to manage and mitigate those risks appropriately.…’
Slovenian law
Law on Payment Services
11The Zakon o plačilnih storitvah, storitvah izdajanja elektronskega denarja in plačilnih sistemih (Uradni list RS, Nos 7/18, 9/18 and 102/20) (Law on payment services, electronic money issuing services and payment systems) (‘the Law on payment services’) provides, in Article 180(1) thereof:‘A consumer legally resident in the [European Union] who applies to open a basic payment account within the [European Union], or to have access to such an account, shall not be discriminated against by the bank, in particular for reasons relating to nationality, place of residence, gender, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national community, membership of a national minority from another State, financial situation, lineage, disability, age or sexual orientation. The conditions which apply to the opening of and access to a basic payment account shall in no way be unjustifiably discriminatory.’
12Article 181 of that law provides:(1) All banks operating consumer payment accounts are obliged to offer consumers a basic payment account.…(3) A consumer legally resident in the [European Union], including a consumer with no fixed address and an asylum seeker, and a consumer who has not been granted authorisation to reside but whose expulsion is impossible for legal or factual reasons, shall have the right to open and use a basic payment account with a bank. …(4) The bank shall organise the procedure for opening a basic payment account in such a way that the exercise of that right is not too difficult or burdensome for the consumer. ……(6) The bank shall refuse the consumer’s application for the opening of a basic payment account if opening such an account would result in an infringement of the provisions of the law governing the prevention of money laundering and terrorist financing. In such a case, the bank shall take measures in accordance with the law governing the area of the prevention of money laundering and terrorist financing.…’
Law on the prevention of money laundering and terrorist financing
13Point 1 of Article 4(1) of the Zakon o preprečevanju pranja denarja in financiranja terorizma (Law on the prevention of money laundering and terrorist financing) (Uradni list RS, No 48/22) provides:‘Banks and their branches in Member States, branches of banks of third States and branches of the banks of Member States that establish a branch in the Republic of Slovenia shall take measures for the detection and prevention of money laundering and terrorist financing, as laid down in this law, before or upon receipt, delivery, exchange, safekeeping, holding or other conduct involving money or other assets and upon the establishing of business relationships.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14On 22 October 2017, LH attempted to pay, at a petrol station in Ljubljana (Slovenia), a bill drawn up in his wife’s name from the latter’s bank account, which was opened with OTP Bank. However, after an employee of that station inputted LH’s personal data into the payment system, that bank blocked the payment.
15In the letter concerning the blocking of that payment addressed to the account holder, the bank stated that, in the light of political events, increased danger as regards general security and an increased possibility of abuse of banking products for terrorist financing and other serious offences, it had adopted a series of stricter measures to fulfil the obligations arising from the Law on the prevention of money laundering and terrorist financing. According to the internal document of that bank, those measures include complying with restrictions imposed by the Office of Foreign Assets Control, United States of America (OFAC).
16Following that payment being blocked, LH brought an action against that bank before the Okrajno sodišče v Ljubljani (Local Court, Ljubljana, Slovenia). By order of 20 April 2021, that court declared that it lacked territorial jurisdiction and referred the case to the Okrajno sodišče v Mariboru (Local Court, Maribor, Slovenia), which is the referring court.
17On 23 March 2022, LH directly requested OTP Bank to open in his name a payment account with basic features. After LH presented his identity card, it was explained to him that the banking system did not allow for such an account to be opened with that bank. LH requested, without success, that the bank provide him with a written decision to that effect.
18Before the referring court, LH therefore, in his preliminary pleadings of 4 April 2022, amended his heads of claim in order to request that OTP Bank be ordered to open a payment account with basic features for him.
19The referring court is uncertain as to the consequences that a person’s inclusion on an OFAC list can have on that person’s capacity to open a payment account. In particular, it harbours doubts as to whether the opening of such an account may constitute an infringement of the provisions of Directive 2015/849. It states that, although that directive clearly establishes that credit institutions must implement measures to verify the identity of a person seeking to enter a business relationship with them, that directive does not specify whether it is necessary to ascertain whether that person is included on a list such as the OFAC list or what the consequences of their inclusion on such a list would be.
20However, according to the referring court, if, in such circumstances, a person must be refused the opening of a payment account with basic features, that would constitute a restriction of the right to access such an account, pursuant to Article 16(4) of Directive 2014/92. In the alternative, and in the event that EU law must be interpreted as permitting such a refusal, the referring court also harbours doubts as to whether such an interpretation is compatible with Article 48 of the Charter, relating to, inter alia, the right to the presumption of innocence.
21In that regard, the referring court states that, on 23 February 2015, the Special State Prosecutor of the Republic of Slovenia closed and archived the case brought against LH which concerned the same offences as those for which an international arrest warrant had been issued against him. It adds that LH has not been convicted anywhere in the world of the criminal offence for which he is included on the OFAC list, and no restrictive measures have been taken against him by the United Nations, the European Union or the Republic of Slovenia.
22In those circumstances, the Okrajno sodišče v Mariboru (Local Court, Maribor) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Does Article 16(4) of Directive [2014/92] permit Member States to require banks to refuse a consumer’s application for a payment account with basic features, on the ground that that consumer is included in [an] OFAC list … in that opening such an account would constitute an infringement of the rules on the prevention of money laundering and terrorist financing laid down in [Directive 2015/849]?(2) If the first question is answered in the affirmative, is there an exception where that consumer has never been convicted anywhere in the world of the offence for which he or she is included in the abovementioned list, and/or where no restrictive measures of any kind have been taken against that consumer by the Member State concerned, the European Union or any other international organisation of which the Member State concerned or the European Union is a member?(3) Does an answer in the affirmative to the first question mean non-compliance with Article 48 of the [Charter] which establishes the right to the presumption of innocence?(4) Does an answer in the negative to the second question mean non-compliance with Article 48 of the [Charter] which establishes the right to the presumption of innocence?’
Admissibility
23OTP Bank submits that the questions referred for a preliminary ruling are inadmissible. In essence, it argues, in the first place, that the answers to those questions are not necessary to enable the referring court to deliver judgment since, first, that court has not sufficiently established either the legal and factual context of the case in the main proceedings or the link between the interpretation of EU law sought and the case in the main proceedings, and that, secondly, that court will apply, in any case, only provisions of national law and not those of Directives 2014/92 and 2015/849.
24In the second place, OTP Bank submits that those questions are put forward in an incorrect manner since the provisions whose interpretation is necessary for resolving the case in the main proceedings are those of Directive 2015/849, whereas those of Directive 2014/92 relating to restriction of the right to a payment account with basic features are not relevant for that purpose.
25In the third place, that bank is of the opinion that the correct application of the provisions of Directives 2014/92 and 2015/849 is so obvious that it leaves no room for doubt as to the answers to be given to the questions referred.
26In that regard, it must be borne in mind that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 25; of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24; and of 24 November 2020, Openbaar Ministerie (Forgery of documents), C‑510/19, EU:C:2020:953, paragraph 25 and the case-law cited).
27Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. Accordingly, the Court may refuse to rule on a request for a preliminary ruling made by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 23 November 2021, IS (Illegality of the order for reference), C‑564/19, EU:C:2021:949, paragraph 61 and the case-law cited).
28As regards the first objection of inadmissibility, according to which there are gaps in the request for a preliminary ruling since it does not contain the information which would be necessary to allow the Court both to understand the context of the case in the main proceedings and to confirm that the interpretation of provisions of EU law is necessary for the resolution of the dispute in the main proceedings, it must be found that, in the light of the material provided by the referring court, it is not manifestly apparent that the interpretation of EU law that is sought has no connection with the subject matter of the main action or that the question before that court is hypothetical, since the referring court is uncertain as to how to interpret the provisions of Directives 2014/92 and 2015/849 in order to determine the lawfulness of the refusal of the banking institution to open a bank account in the name of the applicant in the main proceedings. Furthermore, the Court has before it the factual and legal material necessary to give a useful answer to the questions referred.
29As for the argument that the referring court would only apply provisions of national law, with the result that the answers to the questions referred would have no impact on the decision to be made in the main proceedings, it is sufficient to find that it is apparent from the documents before the Court that the referring court harbours doubts specifically as to the interpretation, in particular, of provisions of EU directives which have been transposed by the provisions of national law applicable to the dispute in the main proceedings.
30As regards the second objection of inadmissibility, alleging that the questions submitted by the referring court are put forward in an incorrect manner since they concern only the provisions of Directive 2014/92, it must be found that that objection cannot succeed either.
31As is apparent from the case-law cited in paragraphs 26 and 27 above, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for and the relevance of the questions which it submits to the Court. Since, in the present case, the questions referred concern the interpretation of a rule of EU law, the argument that the referring court should have referred to other provisions of that law in its questions has no bearing on the admissibility of the reference for a preliminary ruling.
32As regards the third objection of inadmissibility, alleging that the answer to the questions referred is obvious, it is sufficient to bear in mind the settled case-law according to which the mere fact that a party to the main proceedings may regard the answer to the questions referred as obvious cannot suffice to render the request for a preliminary ruling inadmissible (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 64 and 65; of 27 March 2014, Consejería de Infraestructuras y Transporte de la Generalitat Valenciana and Iberdrola Distribución Eléctrica, C‑300/13, EU:C:2014:188, paragraph 18; and of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 138 and the case-law cited).
33In the light of the foregoing considerations, it must be held that the questions referred are admissible.
Consideration of the questions referred
The first question
34By its first question, the referring court asks, in essence, whether Article 16(4) of Directive 2014/92, read in conjunction with Directive 2015/849, must be interpreted as permitting Member States to require credit institutions to refuse to open a payment account with basic features for a consumer for the sole reason that that consumer is included on a list of persons subject to restrictive measures imposed by a third country.
35In that regard, it should be noted that Article 16 of Directive 2014/92 lays down, inter alia, the obligation for Member States to ensure that all credit institutions or a sufficient number thereof offer payment accounts with basic features to all consumers in their territory, and the conditions under which those institutions may or must refuse to open such an account.
36First, paragraph 2 of that article provides that any consumer residing legally in the European Union has the right to open and use a payment account with basic features with a credit institution located in the territory of a Member State.
37Secondly, under Article 16(4) of that directive, Member States are to ensure that credit institutions refuse an application for a payment account with basic features where opening such an account would result in an infringement of the provisions on the prevention of money laundering and the countering of terrorist financing laid down in Directive 2015/849.
38However, as is apparent from recital 34 of Directive 2014/92, the provisions relating to the prevention of money laundering cannot be used as a pretext for rejecting commercially less attractive consumers. Similarly, recital 47 of that directive states that a refusal to open a payment account with basic features can only be justified where the consumer does not comply with the legislation on money laundering and terrorist financing, and not because the procedure to check compliance with the legislation is too burdensome or costly.
39It follows that the right of the consumer to open a payment account with basic features under Article 16 of Directive 2014/92 is subject to compliance with the provisions relating to the prevention of money laundering and the countering of terrorist financing laid down in Directive 2015/849.
40It is necessary, therefore, to examine the relevant provisions of Directive 2015/849 to ascertain under what conditions a credit institution is required, in the light of the considerations connected with the prevention of money laundering and the countering of terrorist financing, not to establish a business relationship with a customer and, accordingly, under what conditions the opening of a payment account with basic features may result in an infringement of Article 16(4) of Directive 2014/92.
41As a preliminary point, it must be recalled that the provisions of Directive 2015/849, which are preventive in nature, seek to establish, taking a risk-based approach, a body of preventive and dissuasive measures to combat money laundering and terrorist financing effectively in order to prevent, as is apparent from recital 1 of that directive, flows of illicit money from being able to damage the integrity, stability and reputation of the financial sector and threaten the internal market of the European Union as well as international development (see, to that effect, judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 34 and the case-law cited).
42In that regard, the first subparagraph of Article 13(1) of Directive 2015/849 sets out the customer due diligence measures which obliged entities are required to apply. Those include, in accordance with points (a) to (c) of that first subparagraph, first of all, identifying the customer and verifying the customer’s identity on the basis of documents, data or information obtained from a reliable and independent source, then, identifying the beneficial owner and taking reasonable measures to verify that person’s identity and, lastly, assessing and, as appropriate, obtaining information on the purpose and intended nature of the business relationship.
43The first subparagraph of Article 14(4) of Directive 2015/849 provides that an obliged entity, such as a credit institution, which is unable to comply with the customer due diligence requirements laid down in point (a), (b) or (c) of the first subparagraph of Article 13(1) of that directive, is not to establish a business relationship with the customer concerned.
44In the present case, subject to the assessment of the referring court, none of the conditions set out in the first subparagraph of Article 14(4) of that directive appears to have been met. As is apparent from the documents before the Court, first, the customer, namely LH, is identified and it is not alleged that he is not the beneficial owner of the intended business relationship, which consists in the opening of a payment account with basic features, and, secondly, OTP Bank refused to open such an account for the sole reason that that customer was included on the OFAC list.
45Directive 2015/849 does not provide that inclusion on an OFAC list or on any other list of that type drawn up by a third country automatically prohibits a credit institution from establishing a business relationship with the customer concerned.
46On the contrary, first, as is apparent from, inter alia, Article 8 of Directive 2015/849, the risk-based approach requires an assessment of the risk undertaken, within the framework of the system established by that directive, at three levels, that is, first of all, at EU level, by the Commission, then, at Member State level and, finally, at obliged entity level. Secondly, the application by those entities of appropriate due diligence measures to the customer concerned depends on that assessment. In fact, without such an assessment, it is not possible for either the Member State concerned or, as the case may be, the said entities to decide in an individual case what measures to apply (see, to that effect, judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 35 and the case-law cited).
47In that regard, it must be recalled that Directive 2015/849 provides, in Sections 1 to 3 of Chapter II thereof, headed ‘Customer due diligence’, three types of due diligence measures, namely standard measures, simplified measures and enhanced measures. Those measures are intended to prevent or, at the very least, to restrict as far as possible money laundering and terrorist financing, by establishing, for that purpose, barriers at all stages which those activities may include, against money launderers and terrorist financers (judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 36 and the case-law cited).
48As regards enhanced due diligence measures, it must be observed that Article 18(1) of that directive refers to certain situations posing a higher risk of money laundering and terrorist financing in which Member States require obliged entities to apply such measures to the customer to manage and mitigate that risk appropriately. Therefore, such enhanced due diligence measures must be applied by those entities, inter alia, in cases of higher risk that are identified by Member States or obliged entities (see, to that effect, judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 37).
49Consequently, in such cases, the application of enhanced due diligence measures presupposes, in accordance with the risk-based approach, the prior identification by the Member State or obliged entity of higher money laundering or terrorist financing risks. Therefore, in those cases, the assignment of a higher risk to a customer and, consequently, the application of enhanced due diligence measures to that customer are not automatic (see, to that effect, judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 38).
50Recital 22 of Directive 2015/849 states that the risk-based approach is not an unduly permissive option for Member States and obliged entities, but involves the use of evidence-based decision-making in order to target the risks of money laundering and terrorist financing facing the European Union and those operating within it more effectively (judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 71).
51It follows that the inclusion of a person on an OFAC list or on any other list of that type drawn up by a third country may constitute a relevant risk factor that the credit institution is required to take into account in its individual assessment of the risk of money laundering and terrorist financing. However, where there is such a risk factor, Directive 2015/849 does not require that such an institution automatically refuse to establish a business relationship with a person included on such a list, but does require that institution to apply enhanced due diligence measures after carrying out an individual assessment of all of the relevant risk factors in the circumstances surrounding the intended business relationship.
52In that regard, admittedly, as the Advocate General stated in point 52 of his Opinion, the very nature of a payment account with basic features, which has limited uses, reduces the risk of money laundering or terrorist financing connected with the opening of such an account.
53However, it cannot be ruled out that, following such an assessment, a credit institution may reach the conclusion that it is unable to manage effectively, through measures proportionate to its nature and size, the risk of money laundering or terrorist financing connected with a business relationship, even where the intended business relationship is limited to the opening of a payment account with basic features.
54Only in such a case could a refusal to open a payment account with basic features be based on Article 16(4) of Directive 2014/92.
55In the present case, it will thus be for the referring court to assess whether the refusal to open a payment account with basic features in respect of LH was based on an individual assessment of the risk of money laundering or terrorist financing taking into account all of the relevant factors – beyond merely the inclusion of LH on the OFAC list – and whether OTP Bank was able, through proportionate measures, to ensure ongoing monitoring of the intended business relationship, as set out in Article 13(1)(d) of Directive 2015/849, in the event that such an account were opened.
56In the light of all the foregoing considerations, the answer to the first question is that Article 16(4) of Directive 2014/92, read in conjunction with Directive 2015/849, must be interpreted as not permitting Member States to require credit institutions to refuse to open a payment account with basic features for a consumer for the sole reason that that consumer is included on a list of persons subject to restrictive measures imposed by a third country, unless the credit institution concerned has carried out an individual assessment of the risk of money laundering or terrorist financing connected with the intended business relationship.
The second to fourth questions
57In the light of the answer to the first question, there is no need to answer the second to fourth questions, since they were referred for consideration only in the event that the first question was answered in the affirmative.
Costs
58Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fourth Chamber) hereby rules: Article 16(4) of Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features, read in conjunction with Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC, as amended by Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018,must be interpreted as not permitting Member States to require credit institutions to refuse to open a payment account with basic features for a consumer for the sole reason that that consumer is included on a list of persons subject to restrictive measures imposed by a third country, unless the credit institution concerned has carried out an individual assessment of the risk of money laundering or terrorist financing connected with the intended business relationship.
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