The Ethics of Banking: Conclusions from the Financial Crisis (Issues ...

106 8 The “Banking Secret”, the Right to Privacy, and the Banks’ Duty to Confidentiality
the protection of a person’s rights of personality is a high constitutional priority,
and banking secrecy plays a part in protecting those personality rights that reside in
the things a person owns, it must also be accorded a value for contributing to the
protection of such rights.
Banking secrecy has force in civil law, based on the agreement between the bank
and the customer to preserve the customer’s trust and confidentiality. However, it
only has force in civil law as long as the bank in question is not obliged to disclose
information by laws of higher precedence. This generally occurs when prosecuting
authorities in a criminal trial demand information from the banks about the accused.
In this case, penal law trumps civil law. Nowadays, in view of the growing importance
attached to the taxation of financial assets, the banks’ duty of disclosure in tax
investigations and tax prosecutions is becoming the main problem in relation to the
duty of secrecy and the limitations on banking secrecy.
Conflicts are flaring up, for instance, between the legal views of the German tax
authorities and the civil-law provisions on banking secrecy in Germany’s neighboring
countries, including Switzerland, Austria, Luxembourg and Liechtenstein. It is
impossible to ignore the fact that, in the main, banking secrecy is most extensive
in these countries that share a border with Germany. Luxembourg’s “tight-lipped”
approach to banking secrecy surpasses even Switzerland’s. According to the former
German Minister of Finance, Peer Steinbrück, who attempted to put Switzerland
under considerable pressure in early 2009, and German finance officials, the explanation
for the stronger emphasis on banking secrecy in these countries can only be
the aim of diverting international finance flows to their own countries. 4 Whether this
view of things is accurate needs to be examined.
Banking Secrecy, the Investigation of Tax Avoidance, Tax
Evasion, Money Laundering, and the Discussion Around
the Swiss “Banking Secret”
It is well known that banking secrecy in Switzerland is protected more insistently
and more extensively than in other industrialized countries. Therefore it is interesting
to discuss the problem of the “banking secret” with reference to the example of
Switzerland. The conditions under which Swiss banking secrecy can be breached are
very restrictive. Banking secrecy cannot be penetrated by tax law. This is the critical
difference from the USA and Germany: Switzerland adheres to the tenet that neither
the interest of the revenue authorities in probing the affairs of Swiss citizens nor the
interest of foreign fiscal authorities in information about their citizens’ accounts in
Swiss banks can override banking secrecy. In American law, banking secrecy enjoys
money participates in that personal sphere of legal protection. The norm governing the confidentiality
of banking relationships is therefore: ‘It is a fundamental ethical obligation to leave a person
undisturbed in his private and intimate sphere [...] Secrets should be kept.’ ” (Ibid., p. 17).
4 Cf. CAHL and KLOS (1993), p. 32.