By a judgment dated 29 November 2017, the Cour de cassation (French Supreme Court) enshrined the principle that banking secret can’t be opposed by a bank whose liability is sought, as part of a probative preliminary injunction on the basis of article 145 of French Civil Procedure Code.
For this purpose, the Cour de cassation held that: "Banking secret set up by article L. 511-33 of the Monetary and Financial Code doesn’t constitute a legitimate impediment within the meaning of article 145 of the French Civil Procedure Code when the request for communication of documents is directed against the bank not in its capacity as third-party but as a party to the trial against it in view of seeking its potential liability in carrying out the challenged transaction”.
The Cour de cassation, by this decision, clarified its case Law confirms the distinction between the bank acting as a third party or as a party to the trial.
Indeed, the bank can still rely on bank secret violation against a request for the communication of documents based on article 145 of French Civil Procedure Code when it acts as a third party, while it will no longer be able to do so as a party in a civil liability action.
Cour de cassation, commercial Chamber, 29 November 2017, No. 16-22.060