Switzerland – CDBF Beneficial Owner Designation

• SWI CBDF blogged on of Geneva Canton Court of Justice judgment ACJC/805/2025 of June 2025, re action for rectification of personal data brought in banking context.
• One of first published case law relating to such action in the banking sector.
• Raises questions of application of revised Federal Data Protection Act (LPD), re UBOs.
• Confirms judgment of first instance and specifies requirements of right to rectification.

Context

• Dispute originated from banking relationship opened in 2008 by administrator of offshore company; when opening, designated husband, children, herself as beneficial owners of deposited assets by completing Form A.
• In 2016, new Form A signed by wife, designating only the couple as beneficial owners.
• Additional certificate also provided in 2017, signed by their accountant, confirming the spouses were sole beneficial owners of the account.
• Per declarations bank informed SWI Tax in context of a request for tax administrative assistance from a foreign state.
• Considering he had never been beneficial owner, husband, several years after account was closed, brought action seeking rectification of banking data, asked to no longer appear as beneficial owner of account and change be communicated to SWI Tax.
• Alternatively, requested data be accompanied by note contested by interested party.
• Court of First Instance dismissed all his claims, the Court of Justice confirmed ruling.

Reasoning

• Court noted revised LPD is applicable, held disputed data, namely designation of appellant as bank account beneficial owner, is personal data (art 5a LPD).
• As such its processing by the bank falls within the scope of this law.
• Right to rectification stems from principle of accuracy of personal data, enshrined in Art 6 para 5 LPD; data controller must ensure data is accurate, where appropriate, take all appropriate measures to rectify, erase or destroy inaccurate data.
• Principle is not absolute, assessed in light of principle of proportionality, taking account of specific circumstances, purpose of processing, type of data processed, etc.
• Data subject may request data rectification; where accuracy cannot be established or refuted, may also request note indicating contested nature of data be added.
• Any justifications for processing (art. 31 LPD), such as consent, overriding interest or a legal obligation, are not enforceable when data proves to be inaccurate.
• The Court emphasizes person requesting modification must cooperate in procedure by producing evidence to demonstrate the alleged inaccuracy.
• Court considered it is not necessary to determine whether rectification could be ordered pursuant to LPD, since the data in question is manifestly accurate.
• Assessment based on: Forms A signed by appellant's wife, handwritten declaration drawn up and signed by both spouses at bank's request, certificate from accountant, appellant's interventions in management of banking relationship, in particular re fees.
• Recalled status of beneficial owner is assessed on basis of effective power to dispose of assets, regardless of funds origin; whether these come from wife's fortune irrelevant.
• That is, if the appellant exercised control over the account in practice.
• Clarified contours of principle of accuracy and right to rectification under revised LDP.
• Data does not need to be rectified or annotated if it is based on clear and consistent documentation, and the data subject is unable to establish its inaccuracy.
• Burden of proof lies with applicant, while data controller must demonstrate diligence.
• Re beneficial ownership, Court applied case law of Federal Supreme Court, aligned with FATF standards by adopting a functional approach based on effective assets' control.
• For banks, ruling underlines importance of compiling, keeping rigorous documentation.
• Essential that financial institutions be able to justify the accuracy of the data collected.