Banking secrecy is not the airtight safe that some people think it is. While this principle protects the confidentiality of customers' financial information, there are many exceptions to it, particularly when it comes to the regulatory authorities. The latter have extensive prerogatives to access banking data as part of their supervisory and control duties. Understanding the conditions and limits of banking secrecy is essential.
Banque de France: at the heart of financial data
The Banque de France plays a central role in the collection and management of sensitive financial information. Several of the files that it administers involve direct access to data that is normally protected by banking secrecy, illustrating one of the reasons why the Banque de France is so important. exceptions public authorities to the general principle.
Centralised files under close surveillance
The Banque de France manages several major files that centralise information on payment incidents and the financial situation of individuals and businesses:
- The National Register of Consumer Credit Repayment Incidents (FICP) This database, set up under article L. 751-1 of the French Consumer Code, records serious incidents relating to loans granted to individuals for non-business purposes. The Banque de France is the only body authorised to centralise this information. Credit institutions are required to report these incidents.
- The Central Cheque Register (FCC) In accordance with article L. 131-85 of the French Monetary and Financial Code, the FCC records payment incidents relating to cheques (rejected cheques for insufficient funds) and bank or court-ordered cheque-writing bans. Once again, banks are required to report these incidents.
- The National Register of Irregular Cheques (FNCI) Cheque Register: Also managed by the Banque de France (articles L. 131-85 and L. 131-86 of the CMF), the Cheque Register centralises the bank details of people banned from issuing cheques, stop payments for loss or theft, details of closed accounts and the characteristics of forged cheques. This file can be consulted by retailers to check the legality of a cheque issued for payment.
For these files, the law provides for an explicit exemption from banking secrecy in the general interest (combating overindebtedness, security of means of payment). However, the use of this information is strictly regulated. Article L. 163-11 of the French Monetary and Financial Code makes it a criminal offence to use such data for purposes other than those specified in the legislation.
Other prerogatives of the Banque de France
In addition to managing these files, the Banque de France has other powers involving access to confidential information:
- Company Bank Register (FIBEN) The Banque de France collects information from companies, banks and court registries to assign a rating that reflects the ability of companies to honour their financial commitments. This task requires access to confidential data. In accordance with article L. 144-1 of the French Monetary and Financial Code, the Banque de France may, under certain conditions, share these analyses with other credit institutions, economic or financial authorities and other parties defined by law.
- General communication rights Article L. 141-6 of the French Monetary and Financial Code allows the CMF to obtain from reporting institutions "all documents and information necessary for the performance of its basic tasks". This includes balance of payments and monetary statistics.
- Specific control powers Article L. 317-1 of the Monetary and Financial Code empowers Banque de France officials to investigate and record certain offences relating to deposit accounts, payment services and electronic money. In this context, they may enter business premises and request any documents, without being bound by professional secrecy.
The ACPR: a supervisor with extensive powers
The Autorité de contrôle prudentiel et de résolution (ACPR), part of the Banque de France, is responsible for supervising the banking and insurance sectors. To carry out its mission, it has virtually unlimited access to confidential banking information.
Stronger inspection powers
Article L. 511-33 of the Monetary and Financial Code clearly sets out the principle that professional secrecy cannot be invoked against the ACPR. Article L. 612-24 sets out the ACPR's investigative powers:
- The Secretary General of the ACPR may "request from the institutions subject to its supervision any information, documents, regardless of the medium, and obtain copies thereof, as well as any clarifications or justifications necessary for the performance of its duties".
- It may also request the statutory auditors' reports and all accounting documents.
- This power extends to subsidiaries of controlled institutions and to third parties to which operational functions have been outsourced.
This legal provision gives ACPR staff a very broad right of access to information held by banks. Case law has confirmed this prerogative (Cass. com., 25 Feb. 2003, no. 00-14.494).
Refusal to comply with a request for information from the ACPR or obstruction of its supervisory role is punishable under article L. 571-4 of the Monetary and Financial Code (one year's imprisonment and a fine of €15,000).
Sharing information between authorities
Effective supervision also depends on cooperation between the various authorities. Article L. 631-1 of the Monetary and Financial Code authorises the ACPR to exchange confidential information that it has collected with other bodies, in particular :
- Banque de France
- The Autorité des marchés financiers (AMF)
- The Deposit Guarantee and Resolution Fund (FGDR)
- The French Competition Authority
- The Directorate-General for Competition, Consumer Affairs and Fraud Control (DGCCRF)
- TRACFIN
- The French Anti-Corruption Agency
This sharing of information is subject to certain conditions: it must be useful for the accomplishment of the respective missions of each authority, and the information transmitted remains covered by professional secrecy with regard to third parties.
In addition, Article L. 612-28 requires the ACPR to inform the public prosecutor when it identifies facts that may justify criminal prosecution.
The AMF: the market watchdog faced with secrecy
The Autorité des marchés financiers (AMF), which is responsible for protecting savings, informing investors and ensuring that markets operate smoothly, also has significant resources for accessing information covered by banking secrecy in the course of its duties.
Extended powers of investigation
The AMF has extensive powers to carry out its inspections and investigations:
- Communication rights Article L. 621-10 of the Monetary and Financial Code allows AMF investigators to "obtain all documents, regardless of medium" and to interview any person likely to provide information.
- Unenforceability of secrecy Article L. 621-9-3 explicitly states that "professional secrecy may not be invoked against the AMF". Banks cannot therefore refuse to disclose information falling within the AMF's remit.
- Access to premises Investigators and inspectors may access business premises (article L. 621-10).
- Access to connection data ("fadettes") : After a censure by the Constitutional Council in 2017 (decision no. 2017-646/647 QPC of 21 July 2017) deeming the initial mechanism insufficiently supervised, the law of 23 October 2018 (article L. 621-10-2) reintroduced the possibility for the AMF to access connection data (identification of the subscriber, technical characteristics of the communication, location) held by operators, but under the supervision of a dedicated magistrate (the controller of connection data requests).
Procedures regulated by the courts
For the most intrusive operations, such as house searches, the intervention of a judge is required. Article L. 621-12 of the Monetary and Financial Code strictly regulates this procedure:
- The visit must be authorised by a reasoned order from the liberty and custody judge (JLD).
- It can only be used to investigate specific breaches (stock market offences, breaches of professional obligations punishable by the AMF).
- The visit is carried out under the supervision of the JLD, in the presence of a judicial police officer.
- Opening times are limited (between 6am and 9pm, with some exceptions).
- The rights of the defence and professional secrecy (particularly of lawyers) must be respected.
European case law (CJEU, 13 September 2018, C-358/16 and C-594/16) has also clarified that the lifting of professional secrecy by supervisory authorities must be justified by a legitimate interest and proportionate.
Obstructing AMF inspections or investigations is a criminal offence punishable by two years' imprisonment and a fine of €300,000 (Article L. 642-2 CMF). The AMF may also impose administrative penalties for obstruction (Article L. 621-15 CMF).
Le the role of regulators in the supervision of the financial system justifies these controlled breaches of banking secrecy. However, the proliferation of exceptions and the extension of the authorities' powers raise legitimate questions about the balance between the need for supervision and the protection of the confidentiality of financial data. Faced with a request for information from a regulator, the assistance of a lawyer specialised in banking law can be invaluable in ensuring compliance with procedures and protecting your rights.
Sources
- Monetary and Financial Code, articles L. 131-85, L. 141-6, L. 142-9, L. 144-1, L. 511-33, L. 571-4, L. 612-24, L. 612-28, L. 621-9-3, L. 621-10, L. 621-10-2, L. 621-12, L. 631-1, L. 642-2
- Consumer Code, article L. 751-1
- Law no. 2018-898 of 23 October 2018 on the fight against fraud
- Cass. com. 25 February 2003, no. 00-14.494
- CJEU, 13 September 2018, C-358/16, UBS Europe SE and Others.
- CJEU, 13 September 2018, C-594/16, Enzo Buccioni
- Constitutional Council, decision no. 2017-646/647 QPC of 21 July 2017
- JurisClasseur Droit bancaire et financier, Fasc. 141-5: Professional duties of credit institutions. Banking secrecy. - Persons and bodies to whom professional secrecy cannot be invoked. - Public persons
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