Background

Historically, banking secrecy has been sacrosanct in Austria. It is a popular subject of public discussion and a prominent issue during election campaigns – politicians have discredited their opponents very effectively by the mere suggestion that they intend to dismantle banking secrecy laws.

The Austrian Banking Act

Under s 38 of the Austrian Banking Act, the following parties are not permitted to disclose to third parties or exploit any secrets that have been entrusted or made accessible to them exclusively on the basis of business relations with customers:

• credit institutions and their shareholders
• board members
• employees, and
• other persons working for credit institutions.

'Third parties' even includes state institutions.

Although banking secrecy laws have been considerably diluted since 1 October 2016 with regard to the disclosure of information to the tax and revenue authorities, there are only a few exceptions to this principle of any practical relevance. The passing-on of information is permitted, for example, within the scope of criminal proceedings, for the clarification of legal matters arising from the relationship between the bank and the customer, and when the customer expressly agrees to the disclosure of the secret in writing.

Case law

A recent decision of the Austrian Supreme Court is a good illustration of the power and reach of banking secrecy laws. Here, a credit insurer compensated an insured bank for a non-performing loan and the bank transferred the loan repayment claim to the insurer in accordance with the insurance contract.

The insurer subsequently sued the borrower for repayment of the loan value. The various lower courts and finally the Supreme Court decided that the claim had not been validly transferred. A transfer necessarily involves the disclosure of important information about the debtor, and banking secrecy prohibits such transfer.

The reasoning behind the decision can be applied to any type of transfer of the bank's claims to a third party (eg to a factoring company, a corporate guarantor connected to the bank etc). Only the bank client's valid consent can enable the transfer of the repayment claim.

Solutions

An earlier Supreme Court decision suggests that client approval should be included in the loan agreement itself. It is therefore crucial to include an appropriate release from banking secrecy requirements in the underlying loan agreement.

Another (more costly) way of dealing with banking secrecy could be to shift the burdens of collateralisation and realisation onto the customer. For example, the bank could require the client to take out credit default insurance. The former could then take recourse against the latter without violating Austrian banking secrecy.