Bankers are often in a rather unique situation. They are both banker and director and therefore now have four ways through which they can be ‘punished’ (in court) for poor performance.
Directors' liability and disciplinary law
On the one hand, there is directors' liability. When bankers make gross errors in their capacity as directors, they can be held privately liable for it.
On the other hand, there is disciplinary law for bankers. Introduced in 2015 and designed to promote and monitor the quality of professional practice. This puts bankers in a fairly select group, along with lawyers, notaries, and medical professionals, among others.
For bankers, however, directors' liability and disciplinary law often come together in the same case. Whereas for the doctor or lawyer, disciplinary actions usually relate to their work as a doctor or lawyer, any errors or omissions by the banker relate precisely to their actions as a director. Thus, for the same actions, a banker can already be sued in two ways.
Criminal investigation
And then, in recent years (while disciplinary law has also only been in existence for 9 years), criminal investigations into bankers have been added. Zalm (ABN), Hamers (ING), Draijer (Rabo): they have all been subjected to it in recent years. Incidentally, after some had also received a disciplinary slap on the wrist for the same actions.
Would bankers really care so little about money laundering within their banks? So little that they accept to be held both privately liable and disciplinary? So little that in addition to all that and the possibility of being thrown out on the street by their employer with all the publicity/career implications that entails, a fourth way of punishment is also necessary?
Not necessary, not proportionate
I find it hard to believe that this is the case. And so then it is rarely necessary to have the criminal investigation as an extra stick. Because the cost of ‘the stick’ is high, in the form of crippling fear in banks, the FD wrote last week. Of course, there may always be cases where this is different. But in these kinds of money laundering cases, there are civil and disciplinary sticks enough to beat with, there is no need for criminal law for that.
