Banking secrecy

Your bank owes you secrecy

Article L. 511-33 of the French Monetary and Financial Code imposes a professional secrecy obligation on every credit institution. This obligation covers all information that comes to the banker’s knowledge in the course of their duties: account balances, credit operations, transfers, cheques, the very existence of an account, and financial documents provided by the client. Banking secrecy protects both the individual’s privacy and the business’s trade secrets.

This is not a mere contractual clause. The Cour de cassation has held that banking secrecy has a public policy character as a matter of professional obligation, independent of any agreement between the parties (Cass. com., 16 January 2001, No. 98-11.744). In a landmark ruling, it also held that banking secrecy survives the closure of the account and even the client’s death (Cass. civ. 1st, 2 June 1993, No. 90-21.982). In other words, the obligation is perpetual.

Whether you are an individual, a company director or a business: if your bank has disclosed confidential information to a third party without a legal basis, you have remedies. Our firm analyses the lawfulness of the disclosure, identifies the fault and pursues the bank’s civil or criminal liability.

Our firm handles

• Auditing the disputed disclosure: verifying the legal basis invoked by the bank
• Sending formal demands to the credit institution
• Civil liability actions to recover damages for the loss suffered
• Joining as civil party (constitution de partie civile) in criminal proceedings for breach of professional secrecy (Article 226-13, French Criminal Code)
• Challenging the regularity of a disclosure compelled by a third party (tax authority, civil judge, creditor)

Breach of banking secrecy: sanctions and remedies

A breach of banking secrecy exposes its author to both criminal and civil sanctions. Article 226-13 of the French Criminal Code, to which Article L. 571-4 of the Monetary and Financial Code refers, provides for up to one year’s imprisonment and a fine of 15,000 euros for natural persons. Legal entities face a fine of up to 75,000 euros. Under French banking law, these sanctions are in addition to civil damages awarded by the court.

Concrete examples of breaches that we handle:

• A bank employee transmitted your financial data to a third party without your consent
• The bank disclosed your account balance to a creditor outside any seizure proceedings
• The identity of a transfer beneficiary or the reverse of a cheque was disclosed without meeting the conditions laid down by case law (Cass. com., 15 May 2019, No. 18-10.491)
• Confidential business information was disclosed to a competitor
• Information covered by secrecy was produced in court proceedings without legal basis or proportionality

What we do in practice

• Characterising the breach: determining whether the disclosure constitutes a criminal offence or a civil fault
• Assessing the loss and building the evidence file
• Amicable negotiation with the offending bank
• Court proceedings before the Tribunal judiciaire or criminal complaint with civil party joinder

Requests to lift banking secrecy: verify, challenge, defend

Banking secrecy is not absolute. French law provides for specific circumstances in which the bank is required to disclose information without the client’s consent. Among the statutory exceptions: criminal proceedings, the tax authority’s right of access (Article L. 83, French Tax Procedures Code), suspicious transaction reports to Tracfin as part of anti-money laundering and counter-terrorism financing obligations (Article L. 561-15, French Monetary and Financial Code), and garnishment orders (saisie-attribution) by a creditor holding an enforceable title.

In tax matters, for example, banking secrecy is entirely unenforceable: the bank cannot refuse to respond to the tax authority. During a tax audit, the issue is not to block the disclosure, but to verify the regularity of the request and to anticipate its consequences.

But not every request is legitimate. The case law of the Cour de cassation requires a genuine proportionality test between the applicant’s right to evidence and the protection of secrecy (Cass. com., 15 May 2019, No. 18-10.491). In this ruling, the court held that disclosure of the reverse of a cheque to the drawer who was a fraud victim could be ordered, provided it was essential to the exercise of the right to evidence and proportionate to the interests of the beneficiary protected by secrecy.

Our role when secrecy is challenged

• Verifying the legal basis of the request and its compliance with civil or criminal procedural rules
• Challenging disproportionate or legally unfounded requests before the court
• Advising credit institutions on handling judicial requisitions, tax audits and Tracfin reports
• Defending the rights of guarantors and heirs who encounter banking secrecy when seeking documents necessary for their defence
• Invoking legitimate impediment (empechement legitime) where the legal conditions for lifting secrecy are not met

Frequently asked questions

Can the bank disclose my information to a third party without my consent?

In principle, no. Banking secrecy prohibits any disclosure to a third party without the client’s express, case-by-case consent. A general authorisation included in a contract is not sufficient. However, the law provides for strictly defined exceptions: the tax authority, the judicial authority in criminal matters, the ACPR and Tracfin may obtain information without prior consent. Outside these cases, disclosure constitutes a breach carrying sanctions.

What sanctions does the bank face for breaching banking secrecy?

Article 226-13 of the French Criminal Code provides for up to one year’s imprisonment and a 15,000 euros fine for natural persons. Legal entities face up to 75,000 euros. The victim may also bring a civil liability claim to recover damages for the material and moral loss resulting from the disclosure.

What if the tax authority requests the lifting of banking secrecy?

Banking secrecy is unenforceable against the French tax authority under Article L. 83 of the Tax Procedures Code. The bank is required to respond. Nevertheless, the regularity of the request can be verified, and any abuse can be challenged within the framework of the tax audit. A banking law lawyer intervenes upstream to anticipate the effects of the disclosure and prepare the taxpayer’s defence.

Can I obtain my debtor’s bank statements if I am a guarantor?

Yes. The Cour de cassation has held that when the bank demands payment from the guarantor, the guarantor may obtain disclosure of the principal debtor’s documents, and banking secrecy cannot be raised as a defence (Cass. com., 16 December 2008, No. 07-19.777). If the bank refuses, it risks having its own evidence excluded from the proceedings. Our firm assists guarantors in this process.

How can I challenge a disclosure request that I consider abusive?

The Cour de cassation requires a proportionality test between the applicant’s right to evidence and the protection of banking secrecy (Cass. com., 15 May 2019, No. 18-10.491). We verify the legal basis, proportionality and formal regularity of the request. If the request is unfounded, we can raise legitimate impediment or apply to the court for its rejection.

Do you act for banks as well as for clients?

We act for both. On the client side, we defend the confidentiality of your information and pursue the bank’s liability in the event of a breach. On the institutional side, we advise banks on managing requests for the lifting of secrecy (tax audits, judicial requisitions, Tracfin) to secure their disclosure decisions and limit litigation risk.