This article will examine the obligations of the financial services provider to allow their clients access to a copy of their file or any other document relating to the established business relationship within the meaning of the Financial Services Act (“FinSA”) and under the Federal Data Protection Act (“FADP”).
In our increasingly digital world, data determines our lives, at all times and everywhere. Individuals therefore have a strong interest in knowing that the protection of their data is respected and ensured. Particularly banks, which can look back on a long tradition of discretion and confidentiality, are aware that detailed information about a person’s financial situation is among the most sensitive data that can be disclosed.
The FinSA, which came into force at the beginning of 2020, is aimed, among other things, at improving the protection of clients of financial services providers. To achieve this objective, a number of rules have been enacted, including the right for the client to receive a copy of their file and all other documents relating to them.
This right corresponds to what already exists within the meaning of Article 400 of the Swiss Code of Obligations (“CO”), which deals with the Agent's obligation to be accountable to his client. However, under the CO, certain internal documents, such as draft contracts, memoranda, preliminary studies, are subject to a weighing of interests between the client's interest in providing the documents and the Agent's interest in maintaining secrecy. The new law thus has the advantage of applying without needing to weigh up the respective interests.
The aim of the new regulation is to improve client protection in the Swiss financial market, while strengthening the competitiveness of the Swiss financial centre, as well as to secure access to the European market by adopting rules equivalent to those of the European Union (EU) MiFID II Directive.
It is in the light of FinSA and FADP that we are analysing the right of the client of a financial services provider to obtain information on the data collected and copies of documents concerning the client.