Right to Access vs. Banking Secrecy

The banking secrecy is under attack from many sides - now there is a new one originating from IP litigation:

In a decision named "Davidoff Hot Water" (I ZR 51/12), the Ist Senate of the BGH (responsible for trademark matters) has referred an interesting question to the ECJ:

Is Art. 8 par. 3 Lit. e of the directive 2004/48/EG to be interpreted such that this provision is in conflict with a national regulation enabling a banking institute in a case as the one as issue to deny access information on the name and address of the owner of an account according Art. 8 par. 1 lit. c of this directive with reference to the banking secrecy?

In the case at issue, counterfeit products were sold via e-bay and the payments were received on an account kept by a bank which was sued by the trademark owner to provide information on the account holder, which the bank refused.

As some readers may remember, Art. 8 par. 1 Lit. c of the directive provides inter alia that

Member States shall ensure that ... the competent judicial authorities may order that information ... be provided by the infringer and/or any other person who:
...
(c) was found to be providing on a commercial scale services used in infringing activities;

whereas this article is limited inter alia by Art. 8. par. 3 Lit. e providing that the above

shall apply without prejudice to other statutory provisions which:....... 

(e) govern the protection of confidentiality of information sources or the processing of personal data.

 On the one hand, it could be argued that the owner of a banking account counts among the information sources of a bank which should be kept confidential. On the other hand, this interpretation would be in conflict with the aim of the directive to ensure effective enforcement.

Balancing the fundamental right to privacy and the right to intellectual property and effective legal action, the BGH tends to answer his question with yes.

Posted by Michael Thesen