An unlimited and unconditional bank secret is at odds with Article 8 (3) (e) of the Directive 2004/48 enforcing the dedicated right of information. This is the core result of last week’s decision of the European Court of Justice (CJEU) in a matter brought before the CJEU by the German Federal Court of Justice. In essence, there must always be the possibility to balance the contradicting rights and underlying interests (see CJEU, judgment of 16 July 2015, Case Ref.: C-580/13 – German Coty).
The German Federal Court of Justice referred the case at issue to the CJEU already in 2013. The underlying dispute emerged between the company Coty Germany (“Coty”) and a German savings bank. Coty holds the exclusive rights to the trademark “Davidoff Hot Water“. The firm conducted a so-called online test purchase in order to find out more about illegal offers of counterfeit products. Apparently, a vendor was found to be selling such products. Thus, Coty first asked the ISP in charge of the Internet auction platform where Coty bought the product to provide information about the user account of the vendor.
The account data eventually led to a vendor who however denied any responsibility. Thus, Coty made a further inquiry with the savings bank requesting the name and the address of the holder of the bank account being used in the transaction. However, information was denied; the bank relying on the benefits of the German bank secret. Consequently, Coty took the institution to court claiming disclosure of personal information.
The court of first instance admitted the claim, whereas the appeal court handed down a decision in favour of the bank. The German Federal Court eventually referred the core question of the dispute to the CJEU:
“Must Article 8(3)(e) of Directive 2004/48 be interpreted as precluding a national provision which, in a case such as that in the main proceedings, allows a banking institution to refuse, by invoking banking secrecy, to provide information pursuant to Article 8(1)(c) of that directive concerning the name and address of an account holder?”
First, the CJEU clarifies that a preliminary ruling is admissible in this case. According to the recital 13 of the Directive 2004/48, the scope of the Directive has to be interpreted in broad sense. Thus, not only infringements of IP law but also obvious infringements of rights attached to an intellectual property right fall within the scope of Article 8 (1) of the Directive.
Further, the Court takes the view that Art. 8 (3) (e) of the Directive may preclude a national provision that allows a bank to invoke the bank secret in absolute terms when it comes to the right of information. The first argument derives from Art. 8 (1) (c) of the Directive. It clarifies that Member States have to ensure the right of information, as a matter of principle, may be claimed against anyone. Secondly, Art. 8 (3) (e) of the Directive provides for the right of information applying without prejudice to any other statutory provision concerning the protection of confidentiality of information sources or the processing of personal data.
However, contradictive rights need to be balanced against each other. Therefore, the CJEU had to reconcile on the one hand the right to information and on the other hand the right to protection of personal data which is part of the fundamental right of every person and guaranteed by Article 8 of the Charter of Fundamental Rights of the European Union. With particular reference to its judgment in the Promusicae matter (see CJEU, judgment of 29 January 2008, Case Ref.: C-275/06) the judges reach the conclusion that a fair balance cannot be achieved with an unlimited and unconditional bank secret in place. According to the court, such a provision “seriously infringes the fundamental right to an effective remedy and, ultimately, the fundamental right to intellectual property”.
What needs to be noted in first place is that the CJEU handed down a clear statement in favour of national regulations that allow for a balanced and diligent approach. In this case, there is no one right that prevails over another right in absolute terms. Thus, if national law does not provide for such balancing, then Article 8 (3) (e) of the Directive 2004/48 is infringed.
It is now for the German Federal Court to review the applicable legal provisions and to decide whether there is sufficient room for adequate balancing of interests or not. If so, neither the bank secret nor the right of information as part of the fundamental right to an effective remedy are at risk. Rather, the courts have the means to hand down well-balanced judgments reflecting the circumstances on a case-by-case basis.