Describe the private banking confidentiality obligations.
For a long time, no text expressly provided banking secrecy. If it was recognised that the banker was bound by a civilly sanctioned duty of discretion, there was discussion as to whether this secrecy should be sanctioned criminally. The Banking Act of 24 January 1984 removed all uncertainty by referring to the Criminal Code. It is therefore clear that bankers must refrain from disclosing information about their clients, under penalty of civil and criminal sanctions.
Based upon respect for private life, confidentiality obligations are simply about protecting the customer - more generally the persons concerned by confidential information - so that they can waive secrecy and thus authorise the banker to communicate the said information. In the absence of such authorisation, banking secrecy precludes any communication; it is said to be enforceable against third parties.
Persons liable for the obligation to secrecy are defined in article L. 511-33, I of the Monetary and Financial Code. These are all those who, in any capacity, participate in the management or direction of a credit institution or who are employed by it. In addition to this first tier of debtors, a second tier includes persons who, in the course of their duties, may obtain access to confidential information held by credit institutions. Thus, for example, all persons participating in the supervisory tasks entrusted to the ACPR are bound by professional secrecy.Scope
What information and documents are within the scope of confidentiality?
Banking secrecy covers only confidential information. The banker is therefore prohibited from disclosing to third parties the amount of an account balance or the amount of credit granted to a customer. However, general information that may be given by a banker to a third party that enquires about the creditworthiness of one of his or her clients is not confidential. This information is of such a nature if the banker merely indicates that due dates are difficult or that payments are regular.Expectations and limitations
What are the exceptions and limitations to the duty of confidentiality?
Exceptions to banking secrecy are tending to increase. The causes of this are various, among them are the control of the administrative authorities over credit institutions, the controls exercised over customers, internal cooperation between the various financial authorities and European cooperation. Because of the basis of banking secrecy, namely the protection of customers, these derogations are strictly interpreted. Thus, there a limited series of exemptions:
- direct exemptions: according to paragraph 2, I of article L. 511-33 of the Monetary and Financial Code, ‘in addition to cases where the law so provides, professional secrecy may not be invoked against the Autorité de contrôle prudentiel et de résolution, the Banque de France, the judicial authority acting in criminal proceedings or committees of inquiry’; and
- indirect exemptions: where persons to whom banking secrecy cannot be invoked are authorised to communicate information of which they have knowledge. In principle, these persons are themselves bound by professional secrecy. However, the Monetary and Financial Code provides for cases where communication may take place.
What is the liability for breach of confidentiality?
According to article L. 511-33 of the Monetary and Financial Code, any person who does not comply with this obligation can face tortious or criminal liability. The disclosure of information subject to banking confidentiality is punishable by up to five years’ imprisonment and a €300,000 fine (article 226-16 of the French Penal Code).