Banking and Financial Newsletter – February 2026
| Banque Finance |
1. Banking services
– FR | Ordinance No. 2026-2 of 5 January 2026 | Distance marketing of financial services: strengthened requirements
Ordinance No. 2026‑2 of 5 January 2026 transposes Directive (EU) 2023/2673 as regards financial services contracts concluded at a distance. It strengthens pre‑contractual information and further regulates the use of communications and digital media in dealings with consumers.
The Ordinance facilitates the exercise of the right of withdrawal via a dedicated functionality on online interfaces (including a withdrawal button) and prohibits interface design practices liable to mislead consumers or hinder their freedom of choice. It also introduces a two‑step sale mechanism (a prior legal commitment followed by completion of the transfer through a separate subsequent instrument).
Entry into force: 19 June 2026, and 1 January 2027 for the two‑step sale mechanism.
– FR | Court of Cassation (highest court in the French judiciary) (Commercial Chamber), No. 24-19.102 | 14 January 2026 | Duty of care of the receiving bank – reaffirmation of non‑interference and the standard of a “readily detectable apparent anomaly”
The Court of Cassation clarifies the receiving bank’s duty of care and reaffirms the principle of non‑interference: the bank is not required to investigate the origin or amount of credited funds, nor to question its client about unusual volumes of transactions, provided the transactions appear regular and no readily detectable signs of falsification exists.
In this case, an internal fraud (replacement of bank details by an employee) led to 58 transfers totalling over EUR 260,000 being credited to her personal accounts. The Court held that the size or repetition of credits, taken alone, is insufficient to characterise an apparent anomaly.
To establish the bank’s liability towards a third party (Article 1240 of the French Civil Code), the claimant must demonstrate readily detectable apparent anomalies that a normally diligent professional would identify, based on a sufficiently robust body of indicators.
– FR | Court of Cassation (First Civil Chamber), No. 24-10.652 | 21 January 2026 | Guarantee: no obligation to verify acceleration of maturity or the APR/TEG before payment
In litigation concerning a mortgage loan guaranteed by Crédit Logement, the Court of Cassation held that the guarantor is under no obligation to verify on its own initiative, before paying, the regularity of the lender’s acceleration of maturity or the calculation of the APR/TEG and the loan interest.
Accordingly, the guarantor commits no fault by performing its undertaking; the borrowers retain their claims and defences against the lender.
The decision follows established case law: absent specific circumstances, the guarantor (including a professional guarantor) is not required to conduct a prior review of objections that could be raised against the lender before payment.
– EU | CJEU (Case C‑902/24) | 22 January 2026 | Loan invalidity: restitution and set‑off (Directive 93/13)
The Court of Justice of the European Union (CJEU) held that Directive 93/13 and the principle of effectiveness do not preclude a bank, while primarily maintaining the validity of the loan agreement, from invoking on a subsidiary basis a set‑off based on a claim corresponding to the loan amount, in consumer proceedings seeking invalidity of the contract and restitution of instalments paid.
This possibility is framed to preserve consumer protection: the bank’s claim must not be treated as due before the competent court has invalidated the contract, and applying set‑off (in particular through the rules on costs) must not lead to an outcome capable of deterring the consumer from exercising their rights.
2. Banking supervision
– EU | CJEU (Case C-291/24) | 29 January 2026 | AML/CFT – Sanctions and liability of legal persons (Directive (EU) 2015/849)
In its judgment of 29 January 2026, the CJEU clarifies the interpretation of the sanctions regime under Directive (EU) 2015/849 (AML/CFT). It held that EU law precludes national rules which, in practice, make the administrative sanction of a legal person conditional upon the prior establishment of liability of a specific natural person.
The Court recalls that Member States must provide for effective, proportionate and dissuasive sanctions against obliged entities: liability of the legal person must be capable of being engaged autonomously, notably where breaches stem from failures in governance, internal control frameworks or oversight. Limitation rules may be allowed provided they comply with the principles of equivalence and effectiveness.
3. Prudential regulation
– FR | Ordinance No. 2026-31 of 28 January 2026 | European Single Access Point (ESAP / PAUE) – National implementation of Regulation (EU) 2023/2859
Ordinance No. 2026‑31 of 28 January 2026 transposed into French law Regulation (EU) 2023/2859 establishing the European Single Access Point (ESAP (Point d’Accès Unique Européen,PAUE)), a framework designed to centralise EU‑wide access to information already disclosed under existing financial, prudential and sustainability transparency regimes.
The Ordinance amends the Monetary and Financial Code to organise national collection and transmission arrangements and designates the competent authorities (notably the French Financial Markets Authority (AMF) and the French Prudential Supervision and Resolution Authority (ACPR)). In practice, it does not create new substantive publication obligations, but structures dissemination channels and clarifies the deployment timetable.
– EU | CJEU (No. C-556/24 P) | 29 January 2026 | ECB/SSM: CET1 deduction for irrevocable payment commitments (IPC(Engagement de Paiement Irrévocable (EPI)) – review of discretionary powers
The CJEU dismissed the appeal brought by Deutsche Bank and BHW against a judgment upholding a European Central Bank decision (ECB) decision requiring full deduction from CET1 of irrevocable payment commitments within the Single Supervisory Mechanism.
The Court recalls that the ECB enjoys a broad margin of discretion to assess prudential risks and impose corrective measures, with judicial review limited to the absence of a manifest error of assessment or breach of general principles of law.
The banks argued that existing prudential rules and the regulatory recognition of IPCs excluded such a deduction. The courts nevertheless held that, within the Supervisory Review and Evaluation Process (SREP), the ECB may require adjustments where the chosen treatment leads to an underestimation of risks.
Finally, the Court notes that accounting standards and prudential requirements pursue distinct objectives, allowing the ECB to impose additional measures so that own funds correctly reflect risks, including those linked to IPCs.