The Inspectorate-General of Finance’s competence to examine items held by banks, when those items are indispensable to the IGF’s task of controlling public finances
Regime governing rights, freedoms and guarantees
Partially exclusive legislative competence
Right to private life
Limits and restrictions
RULING Nº 278/95
31 of May of 1995
Concerning bank secrecy, Portuguese legislation dates back to 1967 and has found expression in several texts adopted by the Government. The currently valid legal rules on bank secrecy stem from a law of December 1972 which regulates the scope of bank secrecy, the extent of the obligation of secrecy and its exceptions. The penal sanction for the violation of bank secrecy is similar to that imposed for the violation of professional secrecy.
Under «other personal rights» in its list of fundamental rights, the Constitution states that everyone shall enjoy «the right to his or her personal identity, civil capacity, citizenship, good name and reputation, image, the right to speak out and the right to the protection of the intimacy of his or her private and family life». Although the right to the protection of private life is constitutionally protected, neither its content and scope nor the concept as such are clearly defined.
The regulations governing bank secrecy are designed to safeguard both public or collective interests (in respect of the smooth functioning of banking activities and the natural climate of confidence) and personal interests (by ensuring complete discretion regarding the private life of citizens in their business and attendant commercial activities).
The question of constitutionality concerned the provision that allows the General Inspectorate of Finance to review, as part of an investigation, all data in the possession of banking establishments regarding notably customer names, bank accounts and banking, currency and financial transactions where such data is essential for inspections within the framework of a public finance audit. At issue was whether the data concerning the economic situation of a citizen in possession of an account with a banking establishment, and in particular his or her bank account and financial and currency transactions, fell within the scope of the constitutionally protected right to private life.
The economic situation of a citizen, revealed by his or her bank account, including assets and liabilities, constitutes an essential dimension of the constitutionally guaranteed right to the protection of private life. Thus, restrictions on bank secrecy must necessarily emanate from an Act of the Assembly of the Republic (or a legislative decree promulgated by the Government with the authorisation of the Assembly) and must be in compliance with the proportionality principle in the broadest sense of the term, i.e, it must be necessary, appropriate and proportional, must have a general and abstract character, must not have retrospective effect and must not restrict the scope and application of the essential content of constitutional norms.
The provision in question was ruled unconstitutional.
The decision cites ruling no. 100/84 of 26.10.1984 of the Constitutional Court of Spain and also the «the right to personal and family privacy» in Article 18.1 of the Spanish Constitution.