Lawyer - Banking secrecy

A phone call from a bank. A letter from the tax authorities. Or sometimes, an almost innocuous question: "Are my accounts really safe?"

In practice, banking secrecy is less straightforward than you might think. Behind this principle lies a mosaic of obligations, rights and exceptions that affect the private life of the individual as much as the commercial activities of the most seasoned company. In Marseille, as elsewhere, mastering the rules (article L. 511-33 of the Monetary and Financial Code, the Criminal Code, the Code of Civil Procedure) is not just a matter for lawyers: it is a matter of protection, confidentiality and sometimes... survival.

At Solent Avocats, a law firm specialising in banking and financial law, experience shows that every case involving banking secrecy has its own 'soundtrack': no two cases are ever the same, but the issues are always the same: protecting the client, defending respect for professional secrecy and anticipating the risk of breach. The firm intervenes on behalf of individuals, managers, companies and credit institutions to assert the confidentiality of information and structure the lawyer-client relationship. And then there's the essential: providing a clear view, even when the text seems confusing.

The law is not just a pile of codes, it is above all a practice.

Banking secrecy: what the law provides (and sometimes forgets)

Behind the expression "banking secrecy", the reality is technical. Bankers, like any credit or financial institution, must keep confidential everything they learn about their customers: identity, transactions, balance, statement, cheque, transfer, payment order... and even the mere existence of the account. This is provided for in article L. 511-33, as well as in the Criminal Code and the Civil Code. The information covered by confidentiality is not limited to the commercial relationship. An inheritance, an incident, a disputed payment: anything is likely to fall within this scope.

And then there's the practical side... Who hasn't heard of a 'leak'? Or a piece of information that seemed to be confidential but one day resurfaces in criminal or tax proceedings? Respecting secrecy is not a promise: it is an obligation, and the civil courts, like the Cour de cassation, are there to remind us of the rule, sometimes harshly.

Exceptions and lifting of banking secrecy: where do you draw the line?

On the one hand, confidentiality. On the other, the law expressly provides for exceptions. The lifting of banking secrecy may be decided by the judicial authorities, at the request of the public prosecutor, a tax authority, a commission or even a civil judge. Sometimes, it is a matter of combating money laundering or criminal proceedings relating to a suspicious transaction.

In practical terms, the bank must receive a specific request, drawn up in accordance with the Monetary and Financial Code or the Code of Civil Procedure. The customer's agreement is not always required, especially in tax matters, or when the decision of the court or high court is made for a legitimate reason. But there is one condition: the production of documents or the communication of confidential information must only take place if permitted by law, and nothing else. This is what case law, through numerous rulings, constantly reminds us.

Note that the number of exceptions has grown steadily. Today, the line between what is covered by secrecy and what must be communicated on the orders of an authority is becoming blurred. Our role is to draw that line.

Tax audits, document production and pitfalls to avoid

A tax audit is rarely announced in advance. The tax authorities or a judge may ask the bank or account holder to produce a document, a balance statement or even proof of payment. When it comes to tax fraud or tax evasion, criminal proceedings quickly become an issue, and banking secrecy comes under serious pressure.

But beware: not all requests are legitimate. Some bank employees hesitate, others give in too quickly. A legitimate impediment may sometimes be raised: the existence of ongoing civil proceedings, a confidentiality agreement, or the protected nature of the information in question. In practice, we come across everything, including government departments that go beyond the scope of the agreement, or third parties trying to obtain information under cover of a commercial procedure. In every case, the same question arises: how far does the obligation to communicate extend?

Privacy, protected data and confidentiality: a shifting boundary

Everyone thinks of privacy, but few realise the extent to which banking secrecy is also data protection, in the broadest sense. It is not just an abstract principle: it is what prevents a third party, a public service or a commercial company from finding out about an individual's situation without a legitimate reason. What European law has strengthened, practice puts to the test every day.

Moreover, the lawyer-client relationship, or the confidentiality of exchanges with a law firm, are subject to the same reflex: protect the confidential nature of each piece of information, point out the professional nature of secrecy, and, where appropriate, hold the bank or institution concerned liable if a breach occurs.

Breach of banking secrecy: real risks, practical penalties

It's not all theory: breaching banking secrecy exposes the banker, the institution, and even the company itself, to real penalties. Civil liability, criminal penalties (Article 226 of the Criminal Code), fines and even imprisonment in certain cases. The civil courts, the Cour de Cassation and European jurisprudence do not take this lightly, especially when the damage suffered is serious or when a third party, a front man or a beneficiary is harmed.

Practice shows that a "small" leak can become a major dispute: the customer discovers that his or her data has been communicated to an authority without any legal basis, or an employee has passed on information simply by making a phone call. As we have seen, this sometimes ends up in court, on appeal, or by way of an appeal, and the rulings are a reminder of the rigour of the system. Producing evidence not covered by secrecy can change everything... or make everything worse.

Litigation, appeals and arbitration: don't be left alone in the face of legal proceedings

It's not always before the highest court that everything is settled. Sometimes, a simple exchange of letters, the drafting of a memo, or participation in a committee meeting can defuse the situation. Other times, it is necessary to take legal action before the court, apply for an order, or seek a protective measure.

Our mission: to support, explain and, above all, prevent customers or companies from suffering as a result of poorly initiated proceedings. The key is to act at the right time, with the right texts: the Monetary and Financial Code, the Code of Civil Procedure, banking law and criminal law, all in the light of the most recent decisions.

Specific contexts: it all depends... on the context

It would be misleading to lay down a single rule: each case, each procedure, each person concerned changes the framework for the application of banking secrecy. Sometimes secrecy yields to the public interest, sometimes it resists, even in criminal cases. Certain investigative measures, or the intervention of a judicial authority, can "blow up" the protection; in other cases, only a civil judge can decide.

And you need to take account of all the parties involved: tax authorities, financial institutions, commercial companies, foreign beneficiaries or private individuals. Nothing is written in advance, but experience shows that anticipating is already protecting yourself.

Support from Solent Avocats

What often makes the difference is not so much the text as the way in which it is used. Solent Avocats always begins with a tailor-made analysis: what is the purpose of the request? Who is making it? What procedure is involved? In practice, we find situations where the legitimate impediment, the confidentiality agreement or the exception to banking secrecy may apply, but it all depends on the case, and sometimes... the last letter received.

Our methodology is based on listening, being clear about the risk, teaching and respecting the customer's privacy. We need to anticipate the bank's potential liability, assess the balance of power, and explain in simple terms what case law and the European Union have provided for.