According to art. 104 of the Banking Law (hereinafter PrBank), the bank, persons employed therein, as well as persons through whom the bank performs banking activities are obliged to maintain banking secrecy, which includes all information regarding banking operations, obtained in during the negotiations, during the conclusion and performance of the contract under which the bank performs the task. Banking secrecy covers not only natural persons, but also legal persons, entrepreneurs and organizational units that do not have legal personality. The secret covers mainly information on the turnover and balance of bank accounts and accepted deposits of valuable clients. At the moment when the bank secret is violated, the bank bears all the consequences and responsibility.
The formation of bank secrecy
It was formulated for the first time in the banking law in Switzerland in 1934. However, it was in the Code of Hammurabi that the first provisions were made, which concerned the protection of bankers' clients. The history of bank secrecy is linked to the history of banks, which is divided into two stages. In the first there was no banking law, it lasted until the 19th century, while in the second stage, regulations concerning this area of law began to appear. It was in the second stage that the notion of bank secrecy was formulated.
The history of bank secrecy in Poland
Already in the days of the Enlightenment, we can find the beginnings of banking development in Poland, while the first regulation in this field dates back to 1924. (Regulation of the President of the Republic of Poland of June 27, 1924. About the Postal Savings Bank). There was a provision for keeping absolute secrecy about existing deposits and accounts, as well as their amount. In the Ordinance of the Minister of the Treasury, the statute of Bank Gospodarstwa Krajowego also contains provisions on confidentiality. (Ordinance of the Minister of the Treasury of May 31, 1924 on the statute of Bank Gospodarstwa Krajowego (Dz. U. of 1924 No. 46 item 478). This provision said that: "members of the Board, the Directorate, as well as all Bank employees and associates, are bound to keep the secret in all matters concerning the Bank's private interests and accounts." Regulation of the Minister of the Treasury on the statute of Bank Gospodarstwa Krajowego 1924 Dz. U. 1924, No. 46 item 478.
In the next legal act - Presidential Order of December 27, 1924. The terms of banking operations and supervision over these activities also include provisions relating to secrecy. He claimed that the council members must keep a secret in the performance of their duties and that they should do it personally. Similarly, bank officials or members of the management must keep the secret. Presidential Decree on the conditions of performing banking activities and supervision over these activities in 1924. Dz.U. 1924 No. 114 item 1018. The next regulations will include: Ordinance of the President of the Republic of Poland of March 17, 1928. On banking law, the Banking Law Act of February 26, 1982. And the Banking Law Act of January 31, 1989. The Act of August 29, 1997 is now in force. On banking law.
The basic part of the regulation determining the normative shape of banking secrecy is art. 104, 105, 106b PrBank (Act of 29 August 1997 - Banking Law). It can not be ruled out that the bank secret will overlap with other professional secrets (lawyer's legal counsel, to which legal advisors are required to pay for the bank or brokerage secret), but also with state secrets.
Exclusion of the obligation to maintain banking secrecy
According to art. 104 pairs 2 PrBank the obligation to maintain bank secrecy does not apply to cases in which:
- it is necessary in the process of performance of the contract under which the given banking activity is performed,
- disclosure of information subject to bank secrecy to entrepreneurs or foreign enterprises to whom the bank entrusted the performance of specific banking activities;
- the bank provides information to advocates or legal counsels in connection with the legal assistance they provide,
- it is necessary to conclude and execute contracts for the sale of receivables classified as lost (sale of receivables by assignment to a debt collection agency),
- it is necessary to conclude and execute contracts for securitization of receivables.
In cases provided for by law (Article 105 para. 1 PrBank), the bank has not only the right, and even the obligation to provide information protected by bank secrecy, including:
- other banks and credit institutions to the extent necessary for, for example, granting loans, loans, sureties and bank guarantees,
- other banks and credit institutions to the extent necessary for e.g. preparation of consolidated financial statements, risk management or statistical purposes,
- Polish Financial Supervision Authority in the field of supervision over banks,
- at the request of the President of the Supreme Audit Office, the president of the management board of the Bank Guarantee Fund, the Inspector General for Personal Data and the president of the Office for Competition and Consumer Protection within their statutory competences,
- at the request of a court, prosecutor, head of the Customs Service or the General Inspector of Fiscal Control in connection with a criminal, penal and fiscal case, maintenance, pension or division of joint property of the spouses against the account holder, as well as inheritance proceedings,
- an auditor authorized to audit the bank's financial statements,
- To the National Bank of Poland in relation, among others, to exercising control and collecting data necessary to prepare the balance of payments,
- Police and state protection services to the extent provided by law and other entities listed in art. 105 PrBank.
- Johannesen, N., & Zucman, G. (2014). The end of bank secrecy? An evaluation of the G20 tax haven crackdown. American Economic Journal: Economic Policy, 6(1), 65-91.
- Council, F. F. I. E. (2005). Bank Secrecy Act anti-money laundering examination manual. Federal Financial Institutions Examination Council.
- Lewis, K. K. (1991). Why doesn't society minimize central bank secrecy?. Economic inquiry, 29(3), 403-415.