Legacy and a practitioner’s view

What Article 47 still protects

For a Zurich practitioner in 2026, Article 47 is a provision of daily practical relevance. It remains the criminal backbone of the duty of confidentiality that every Swiss bank owes its clients. Its protection is directed against private third parties, against unauthorised foreign authorities and, in the absence of a statutory basis, against Swiss authorities as well. The foreign client whose data are exchanged automatically with his home state is still protected against disclosure to his business competitors, his estranged relatives or a journalist. The exchange itself takes place under the strict conditions of the relevant statute.

The domestic client enjoys a more extensive protection. In the ordinary tax assessment procedure the Swiss tax authorities cannot demand information from a bank about a taxpayer’s accounts. The Federal Council’s attempt to change this was abandoned in 2017 in the face of parliamentary resistance.¹ Only in criminal tax proceedings for tax fraud, or in special investigations of serious tax offences by the Federal Tax Administration, may the authorities obtain bank information. The distinction between evasion and fraud, which lost its international significance in 2009, thus remains a central feature of domestic Swiss tax law. The Swiss resident taxpayer continues to live in the relationship of trust with the state that the voters of 1984 wished to protect.

The practical scope of Article 47 has, if anything, grown in the digital age. Banks outsource IT, data processing and compliance functions to group companies and specialised providers in Switzerland and abroad. Every such arrangement raises the question whether client-identifying data leave the protected sphere, and whether the client has consented or the data are sufficiently encrypted or pseudonymised to exclude disclosure. The legal opinion prepared for the Swiss Bankers Association on cloud services, which rests on an analysis of the protected interest of Article 47 and on the concept of the bank as the guardian of the client’s integrity interests, illustrates the care with which the industry approaches these questions.² In current practice, questions of this kind arise far more often than enquiries by foreign tax authorities, which are now governed by the treaties and the automatic exchange.

The risks for bank staff and whistleblowers

For bank employees Article 47 remains a real criminal risk. An employee who passes client data to an unauthorised person, whether out of greed, conviction or carelessness, faces prosecution by the cantonal authorities. The penalty of up to five years for those who act for financial gain places the sale of data among the serious offences of Swiss criminal law. The extension to third parties in 2015 reaches the intermediaries and buyers who were previously outside the scope of the provision. The data sale to the Wuppertal tax investigators, in which the proceeds were forfeited even after the death of the seller, shows that Swiss authorities pursue such cases with determination and combine Article 47 with the offence of economic espionage.³

Whistleblowers occupy an uncomfortable position. Switzerland has no general statutory protection for whistleblowers in the private sector. A bill to regulate reports of irregularities in employment relationships failed in Parliament in 2020.⁴ An employee who reports irregularities to the internal compliance function, to FINMA or to the Swiss criminal authorities acts within the reservation for duties to provide information and is generally not exposed under Article 47. An employee who goes to a foreign authority or to the media acts at his own risk. The Elmer case marks the territorial limit of the provision for staff of foreign subsidiaries, whereas the judgment of December 2024 on the freedom of the press opens a justification for journalists that may, in individual cases, extend to their sources. Neither decision removes the fundamental risk.⁵

The advice that follows from this is conservative. Bank employees who encounter conduct they consider unlawful should use the internal channels and, where these fail, the Swiss supervisory and criminal authorities. Journalists who receive bank data should take legal advice before publication and should be prepared to demonstrate a genuine public interest in the reporting. Banks, finally, should ensure that their outsourcing and group data flows are documented, that client consent is obtained in clear terms, and that employees understand that the duty of secrecy survives the end of their employment.

Notes

1. SWI swissinfo.ch, “Parlament will Bankgeheimnis im Inland nicht antasten”, 12 December 2017 (see above), on the abandonment of the revision of tax criminal law and the preservation of domestic banking secrecy. ↩
2. Laux, Hofmann and Schieweck, Rechtsgutachten: Nutzung von Cloud-Angeboten durch Banken (2019) (see above), on the protected interest, the implicit consent of clients to the use of appropriate organisational means and the circle of persons bound by secrecy, including organs, employees, agents and audit firms. ↩
3. Federal Supreme Court, judgment 6B_508/2014 of 25 February 2015 (see above). ↩
4. Federal Office of Justice, “Kündigungsschutz / Whistleblowing”, https://www.bj.admin.ch/de/kuendigungsschutz-whistleblowing, on the Federal Council’s bill 13.094 (partial revision of the Code of Obligations): “Der Nationalrat ist am 5. März 2020 zum zweiten Mal nicht auf die Vorlage eingetreten.” ↩
5. Canonica, “Fehlkonstruktion Art. 47 Abs. 1 lit. c BankG”, medialex (2026) (see above), and BGE 145 IV 114 of 10 October 2018 (see above). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.