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Austrian Banking Privacy still intact

On September 1, 2009 the Austrian Parliament passed the Administrative Execution
Act (or in German, the “Amtshilfedurchführungsgesetz”). This Act, which came into
force on 9th September, created a strict new procedure for Foreign Governments to
follow before any information is divulged on bank accounts in Austria.

A number of our clients have been confused by the sensationalist and sometimes
misleading headlines in the Press and as such, we are taking the opportunity to
explain the Act in more detail. The main points to note are as follows:

Article 38 of the Banking Act, which governs the Bankers duty of secrecy is
completely unchanged and remains fully in force. A breach of this by any
individual is still considered a criminal offence in Austria.

No “Fishing Expeditions” will be allowed. The Foreign Government has to
prove “foreseeable relevance” to the Austrian Authorities as well as request
specific information. On top of this, it also has to prove that it has exhausted
all local and domestic means of obtaining this information before even
applying to the Austrian Authorities. Hence, there will be no automatic
exchange of information.

Applications must be made to the Austrian Authorities only. In other words,
the Foreign Government cannot apply directly to the Bank and indeed banks
are not permitted to respond to such requests direct.

Appeal. Assuming that the Foreign Government has proved both “foreseeable
relevance” as well as exhausting all local means of obtaining the information,
the client still has 2 weeks to appeal the request. Even then, the Austrian
Authorities cannot release this information until at least after 6 weeks of
advising the Bank. The rules specifically state that the client must be advised
of any request for information that has been properly presented.
We trust that this has clarified the situation and will be pleased to answer any
questions you might have.