The banking secrecy: the national regulation and an international overview

Abstract

The purpose of this thesis is to deeply analyze the concept of Banking Secrecy, that is the obligation for the banks to maintain the most absolute discretion on the information concerning the affairs of the clients. The starting point is to analyze the definitions of the concept and its origins; indeed, even if it recurrently used nowadays, scholar have opposite ideas on the foundation of the banking secrecy. Hence, the two most common theories about the foundation of the banking secrecy are presented, namely those concerning the article 7 of the Banking Single Text and the article 622 of the Penal Code. Other references are presented, regarding the Constitutional perspective of the banking secrecy as protection of savings and the protection of confidentiality, as well as the customary source of the Court of Cassation. Limits to the banking secrecy are pointed out, such as those identified by the Constitutional Court; also, the exceptions to it, as those established by criminal law, by the law against money laundering and by the Civil Procedure regulation. Another focus of the examination is on the relationship between the banking secrecy and the Tax Administration; there is a presentation of the evolution of the tax legislation regarding the banking secrecy and, then, an explanation of the legal presumptions contained in article 32 of the D.P.R. 600/1973. Also, exceptions to the banking secrecy in the relationship with the tax administration are considered. Furthermore, there are the changes brought by article 18 of the law 413/1991 and those introduced by the finance law 311/2004, together with an explanation of the functioning of the exchange of information on tax matters in the light of Community sources. After this, there is an overview of the discipline of the banking secrecy in foreign countries, starting from the European ones, and continuing with the United States and with the recognition of the concept in the Republic of San Marino.