This content is from: Local Insights

Poland

Banking confidentiality in Poland is regulated by the Banking Act of 1997. Generally it is based on the rather restrictive French model, however, the legislators have used their own construction in the wording of the legislation. Polish confidentiality regulations are within the bounds of the EU's legal framework and the requirements set for OECD members.

Under Polish law, all banking transactions and all information with regard to the parties to an agreement with a bank, as well as the entities which are not parties to the agreement with a bank but are doing transactions arising out of the agreement with the bank, fall within the meaning of confidential banking information.

Polish banking law is open to administrative abuse when it comes to disclosure demands by the authorities. Article 105 and 106 of the Banking Act, which address the disclosure requirements, list the entities requiring a bank to disclose information about its client. While these entities are required to protect the information under the regulation of the professional confidential information, Polish law may prove insufficient for the protection of banking confidentiality because there is no common definition of professional confidential information which could be applied for all the entities listed under article 105 and 106 of the Banking Act.

Another aspect of the legislation is the stipulation that the prosecutor for the treasury, and the treasury control bureau among other entities, can demand information from any bank under law, while the legislation does not require the client's notification. The mechanism by which disclosure may be provided by the banks does not include any administrative review of the demand.

Under the Polish Banking Act, similar to many west European money laundering legislations but with a broader scope, a bank is required to enforce counter-measures to protect itself from being an agent in perpetrating or hiding crimes. A bank is required to notify the state prosecutor of any justifiable suspicion of criminal activities. Under article 107 of the Act, bank employees who are aware of suspicious activities but do not report them may face legal sanctions, including criminal prosecution for failing in his or her duties. This provision should be carefully studied by the banking institutions to avoid any problems connected with enforcement.

Article 108 of the Banking Act provides immunity to a bank from responsibility for any anti-criminal measures implemented in good faith. It stipulates that the State Treasury will take responsibility in lieu of a bank for any losses arising out of anti-criminal measures which were misapplied. This should ensure that the margin of error will most likely lie on the side of the state and should not burden clients.

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