Banking secrecy

from Wikipedia, the free encyclopedia

The banking secrecy (actually bank client confidentiality ; English banking secrecy ) consists of the obligation of financial institutions to maintain secrecy about customer-related facts and ratings to them because, on the occasion of or in connection with the business relationship have become known for bank customers and the customer wishes to keep secret.

General

This civil law definition of the Federal Court of Justice (BGH) is generally based on the banks' duty of confidentiality regarding the financial circumstances of bank customers towards third parties. Credit institutions may and must only provide information in cases regulated by law and make information available to certain official institutions upon request.

Banking secrecy is one of the essential elements of protecting people's privacy , but it conflicts with the state's right to an accurate and equal taxation of wealth and interest income. In Germany, banking secrecy was therefore loosened in the course of the introduction of the interest discount and further weakened with the introduction of the account retrieval procedure .

Banking secrecy in Germany

It is assumed to exist by both the legislature and the jurisprudence and, because of its long practice - since 1619 - recognized as pre-constitutional customary law. The obligation to maintain banking secrecy is a special expression of the general duty of the bank to protect the financial interests of the contractual partner and not to impair them. The maintenance of banking secrecy is guaranteed through contractual regulations. The GTC in Section 1 of the General Terms and Conditions that they maintain banking secrecy. However, this agreement in the GTC can only be of a declaratory nature. Even if a long business relationship exists, it cannot be concluded that there is an independent “general bank contract”. It therefore seems preferable to classify banking secrecy as customary law or to look for its legal basis in ( § 311 BGB ). Afterwards, when business contacts are established, a legal obligation arises . If the customer enters into business contact with his bank, this exchange of information already falls under the protection of banking secrecy.

purpose

On the one hand, the customer's right to informational self-determination ( Art. 2 GG ) is realized through banking secrecy . On the other hand, the professional right of the credit institute to exercise one's profession freely as an outflow from Art. 12 GG is protected by banking secrecy. The bank has the right to refuse to provide information to anyone about its customers or their economic circumstances. Exceptions are only possible if this right of refusal is broken by special legal regulations. In this way, a sphere of secrecy is created, which is an indispensable prerequisite for conducting banking business. In both cases, banking secrecy protects against unauthorized access by third parties.

Bank secrecy and Federal Data Protection Act

For a long time, the question of whether banking secrecy is not subject to the Federal Data Protection Act (BDSG) has been controversial . The BGH commented in detail on this in its judgment of February 27, 2007. According to this, the relationship between data protection and banking secrecy is largely determined by Section 1 (2) sentence 3 BDSG, according to which the obligation to maintain professional secrets that are not based on statutory provisions remains unaffected by the provisions of the BDSG. This not only means that data protection and banking secrecy apply side by side, but also that data protection law has a protective function in relation to banking secrecy as professional secrecy. This already results from the use of the word "untouched" and is confirmed by the official justification for the government draft of Art. 1 of the law on the further development of data processing and data protection, according to which both legal regulations and the case law for special secrets the principles Regulations of the Federal Data Protection Act should proceed.

Breakthrough through information obligations

In Germany, the banks have to report to the Federal Central Tax Office (BZSt) the amount of the declared tax exemptions for investment income and their use. This allows conclusions to be drawn about the level of the average account balance. In the case of recipients of public benefits who are dependent on the applicant not having any creditable assets or income (e.g. BAföG , social assistance and unemployment benefit ), the examination is carried out in justified individual cases. Since January 2004, an Interest Information Ordinance (ZIV) has regulated the obligation to report interest payments ( Section 4 (2), Section 8 ZIV).

Tax law

For requests for information to credit institutions, § 93 AO applies . Requests for information should only be made if an investigation by the taxpayer itself has not led to the goal or does not promise success ( Section 93 (1) sentence 3 AO).

Pursuant to Section 93 (1a) AO, tax authorities may further request information on a number of facts that are still unknown to them with the reason for identifiable persons who are not yet known to them (collective information requests).

According to § 33 ErbStG i. V. m. § 1 ErbStDV is obliged to report the respective credit balances and lockers to the inheritance tax office after the death of the customer. However, the “ex officio bank information” only refers to accounts / lockers at domestic credit institutions. If part of the inheritance is in a bank account in another country, the heir himself must report the amount to the responsible tax office.

Investigation and criminal proceedings

Bank secrecy also does not apply in preliminary proceedings and criminal procedure law . There is a right to refuse to testify only for those with professional secrecy ( Sections 53 to 55 StPO ). Therefore, bank employees have no right to refuse to testify in criminal proceedings. The employees are therefore obliged to give evidence. As part of the hearing of witnesses, the owners, organs and employees of the credit institutions are obliged to appear and give evidence on the matter (in accordance with Section 161a of the Code of Criminal Procedure before the public prosecutor as well as in accordance with Section 163 (3) of the Code of Criminal Procedure and the requirements mentioned there before the police).

The only exception is if a bank employee is accused of aiding and abetting tax evasion committed by a customer; as the accused, he is then not obliged to testify against himself. The public prosecutor's office may confiscate business documents and data carriers of the credit institution ( Section 94 (2), Section 98 of the Code of Criminal Procedure), provided that these are relevant as evidence. A search of the business premises of the credit institution can also be ordered within the framework of Section 103 StPO. Both the seizure and the search order require a court order (exception: imminent danger).

Civil litigation

In civil proceedings , witnesses are entitled to refuse to testify with regard to facts that were entrusted to them by virtue of their office and the confidentiality of which is required by their nature, as well as with regard to questions that they would not be able to answer without revealing a trade secret ( Section 383 (1) No. 6 and Section 384 No. 3 ZPO ). Banking secrecy is also one of the secrets protected by these regulations. A bank employee must refuse to give evidence in civil proceedings and may not testify because the general terms and conditions contain the credit institution's contractual obligation to maintain banking secrecy. Something different applies if the customer has given his consent and released the bank employee from the obligation to maintain banking secrecy. This applies accordingly to labor court proceedings ( Section 46 (2 ) ArbGG ), administrative court proceedings ( Section 98 VwGO ) and social court proceedings ( Section 118 (1) SGG ).

Bank secrecy and bank information

Customers and credit institutions have an interest in credit institutions providing bank information as part of normal banking business . However, this interest collides with banking secrecy. In order to still enable bank information, the general terms and conditions of the individual banks regulate the bank information. On the one hand, bank reports are formulated in a very general way and do not contain any detailed information about credit balances or credits. On the other hand, all customers are free to forbid information about themselves. Private individuals generally have to give their consent; On the other hand, information is provided about companies, unless they prohibit the provision of information.

International banking secrecy

Bank secrecy as a matter of EU and US policy

The Foreign Account Tax Compliance Act (FATCA, passed by the USA in March 2010) is intended to prevent US taxpayers from moving their assets to foreign tax havens. The FATCA requires US-based banks to automatically report names, addresses, account balances and account movements of investors to the US tax authorities. This led to some large European banks such as UBS , ING or Deutsche Bank closing selected trading departments in the USA, which until then had served as a kind of bridge to bring money to Europe.

On October 14, 2014, all finance ministers of the EU countries agreed to abolish banking secrecy from 2017 with regard to tax evaders . Automatic data balancing is agreed between the EU states.

OECD standard for the automatic exchange of information

The member countries of the OECD have developed a common standard for the automatic exchange of information . On February 14, 2014, they published the “Standard for Automatic Exchange of Financial Account Information”. Switzerland also took part in these talks. For a long time, the Swiss government emphasized that such a system would only be accepted if the standard applies worldwide. It revised this in May 2014 (see Swiss banking secrecy ).

Banking secrecy in Austria

In Austria , banking secrecy is regulated in Section 38 of the Banking Act ( constitutional provision ). According to this, banks are only allowed to provide information on the basis of a judicial mandate if criminal proceedings are pending, or if administrative financial criminal proceedings have been initiated due to a deliberate financial offense, with the exception of a financial offense, or B. in the event of death to the negotiating court . Government agencies do not receive any information either. In foreign criminal proceedings , information may only be given within the framework of mutual assistance agreements and only if the same case in Austria would also lead to an account being opened.

So that capital gains can still be taxed, a capital gains tax (KESt) with a fixed tax rate is withheld by the bank and delivered to the tax office . This covers income tax and any inheritance tax that may arise . This tax is also known as withholding tax .

However, the anonymity of the savings book has fallen in 2002 (with transition periods): a savings account holder has to identify himself to the bank, which was not the case before.

Austria's banking secrecy remains - despite the EU interest tax directive. Austria does not report any data to foreign authorities. Instead, banks pay withholding taxes anonymously. In a landmark decision, the Administrative Court made it clear that not every foreign financial criminal procedure justifies a breach of Austrian banking secrecy.

Account information can only be provided by an Austrian court, regardless of whether the owner is an Austrian or a foreigner and whether he lives in Austria or abroad. Informative information on accounts to other authorities, which are common in Germany, set in Austria constitutes a criminal offense. If organs of authorities and the Austrian National Bank in their official duties, becomes aware of facts which are subject to banking secrecy, they have banking secrecy as an official secret to true.

On March 20, 2014, the EU achieved a breakthrough against cross-border tax evasion after Luxembourg and Austria abandoned their opposition to the proposal that had been on the table since 2008.

The central register of accounts came into force on October 1, 2016 . All accounts and custody accounts in Austria are listed there. The reporting obligation has been in effect retrospectively since March 1, 2015. From 2017, the global exchange of account data of foreign customers will take place via the national tax authorities.

Banking secrecy in Switzerland

Banking secrecy in Luxembourg

At the 2009 spring conference in front of the Association of the Luxembourg Fund Industry (ALFI), Luxembourg's finance minister, Luc Frieden , said that Luxembourg would fully adopt the standards of the OECD Model Tax Convention . The Luxembourg government insists that the exchange of information, as defined by the OECD , be recognized as the only binding standard in the EU.

“With the signing of the double taxation agreement, Luxembourg and Germany have settled their dispute over banking secrecy.” So wrote the Luxemburger Wort on December 11, 2009. The German finance minister Wolfgang Schäuble made it clear that for him “the agreement is the first step towards an automatic exchange of information " be.

For Luxembourg it is primarily important that the international regulations are applied uniformly and that Luxembourg does not suffer disadvantages due to unequal treatment, said Luc Frieden in an interview with d'Lëtzebuerger Land . At the G20 summit in London on April 2, 2009, the proponents of automatic data exchange failed to implement their plans. Instead, the exchange of tax information on request has been established as an OECD standard.

However, the European Union is committed to the automatic exchange of information. Of the current 27 members of the European Union, 25 already use the automatic exchange of information. Only Luxembourg and Austria have to apply the automatic exchange of information only after a transitional period. However, this transition period can be declared ended at any time by resolution of the Council of Ministers of the European Union.

On April 10, 2013, the Luxembourg government announced that it would automatically transfer interest income (except for dividends ) to EU member states from January 1, 2015 . On April 29, 2013, the Luxembourg government announced that it wanted to exchange significantly more information than the interest income on bank accounts. "We will certainly be at the forefront of further initiatives," said Finance Minister Luc Frieden. On April 29, 2013, the Luxembourg finance minister also announced that Luxembourg was open to passing on information about the financial conduct of large corporations.

On March 20, 2014, the EU achieved a breakthrough against cross-border tax evasion after Luxembourg and Austria abandoned their opposition to the proposal that had been on the table since 2008.

Singapore banking secrecy

On May 6, 2014 it was announced that Singapore would ratify the Multilateral Convention on Mutual Administrative Assistance in Tax Matters of the OECD , which in fact equates to the abolition of banking secrecy.

As part of this agreement, which was signed by more than 51 countries in 2015, Singapore has undertaken to automatically exchange information with foreign tax authorities from 2018.

literature

  • Jens Petersen: The banking secrecy between individual protection and institutional protection . Mohr Siebeck, Tübingen 2005, ISBN 978-3-16-148543-5 ( preview in Google book search).

Web links

Wiktionary: banking secrecy  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BGH WM 2006, 380 , 384
  2. ↑ z. B. Carmen Koberstein-Windpassinger, Safeguarding banking secrecy in asset-backed securities transactions , in: WM 1999, pp. 473, 474
  3. ↑ BGH WM 2006, 380, 385
  4. ^ Andreas Cahn , WM 2004, pp. 2041, 2042
  5. ↑ Gerd Nobbe , Banking Secrecy, Data Protection and Assignment of Loan Claims , in: WM 2005, pp. 1537, 1539
  6. ^ BGH WM 2007, 643
  7. ↑ BT-Drs. 11/4306 of April 6, 1989, draft law for the further development of data processing and data protection , p. 39
  8. ↑ Zeit.de October 2014: Banking secrecy in the EU finally falls
  9. ↑ www.oecd.org
  10. ↑ oecd.org
  11. ↑ VwGH, judgment of July 26, 2006, Az .: 2004/14/0022
  12. ↑ a b c OECD on tax secrecy: Austria, Luxembourg and Singapore among countries signing-on to end tax secrecy
  13. ↑ Banking secrecy for foreigners ends in October 2016
  14. ↑ Exchange of information ( Memento of August 4, 2012 in the web archive archive.today ) LuxembourgforFinance, accessed on December 13, 2009.
  15. ↑ Luxemburger Wort: Sign of Friendship ( Memento from February 18, 2013 in the web archive archive.today ) on December 11, 2009.
  16. ↑ Luxemburg for Finance ( Memento of March 15, 2014 in the Internet Archive )
  17. ↑ Saeed Azhar and Eveline Danubrata: Singapore bankers rattled by Asian moves to chase undeclared wealth . In: Reuters.com . August 17, 2015. Retrieved December 4, 2015.