Sigilo bancário e o reconhecimento da constitucionalidade do artigo 6º da Lei Complementar nº 105/2001 pelo Supremo Tribunal Federal

Abstract

The purpose of this paper was firstly to carry out a historical and conceptual research of the bank secrecy institute, investigating its origins, foundations, theories and legislative treatment over time, particularly in Brazil. From this analysis, it became clear that bank secrecy in Brazil is closely related to a legal system of protection of the secrecy of the bank-client relationship, based on the protection of the latter's intimacy. The greatest example of this is the existence of provisions in the 5th article of the Federal Constitution of 1988 that guarantee the right to inviolability of intimacy, privacy and data confidentiality. In light of the first considerations, the focus turned to comments on Complementary Law n. 105/2001, especially its 6 th article and its influence on the subject under study, mainly due to the last pronouncement of the Federal Supreme Court in February that dismissed several Direct Actions of Unconstitutionality proposed against many provisions of the mentioned complementary law, in particular its 6th article. By analyzing these topics, the reason for the various criticisms suffered by Complementary Law n. 105/2001, which gave the Tax Administration the power to access confidential data protected by bank secrecy without the need for an order of the Judiciary, expressly revoking the article n. 38 of Law 4595/65, which guaranteed the need for legal proceedings for breach of confidentiality, became very clear. Finally, this paper focused on the analysis of the aforementioned pronouncement of the Federal Supreme Court that judged the various actions of unconstitutionality proposed and examined the arguments against and in favor of the constitutionality of the 6th article, in order to verify the most reasonable position regarding its alleged unconstitutionality. In the end, the present paper intended to show that the arguments in favor of the constitutionality of the 6th article, although based on serious objectives and good ideas, end up not offering sufficient counterpoint to the already consecrated notes made by the doctrine favorable to the maintenance of the breach of bank secrecy carried out only by order of the judicial power, mainly because of the constitutional protection granted to the subject and the need to comply with the reserving jurisdiction capable of guaranteeing the separation of powers and the due process of law.