In its decision (2C_893/2015) of 16 February 2017, which is scheduled for publication, the Federal Supreme Court upheld an appeal by the Federal Tax Administration (FTA). According to this, Switzerland may provide administrative assistance to France, although the request for administrative assistance from France is based on suspected stolen data. The Federal Supreme Court considered that there were no criminal offences in Switzerland and therefore no Swiss laws were violated.
In 2010, managers of a major bank reported to the French financial supervisory authority (Autorité de contrôle prudentiel; ACP) that a bank domiciled in France may have been involved in criminal activities, in particular money laundering. According to media reports, this is the major bank UBS France (NZZ article of 13 March 2017).
Based on Art. 28 of the Agreement between Switzerland and France for the Avoidance of Double Taxation in the Area of Taxes on Income and on Capital and for the Prevention of Fiscal Fraud and Tax Evasion (DTA CH-FR), the French tax authorities submitted requests for administrative assistance to Switzerland at the end of 2012 and 2013. One of the persons affected by the request for administrative assistance fought the extradition of the data all the way to the Federal Supreme Court.
According to Art. 28 para. 3 lit. b DTA CH-FR, a Contracting State is not obliged to provide information which cannot be obtained under the laws or in the normal administrative procedure of that or the other Contracting State. The Federal Supreme Court interpreted this provision differently than the lower court (cf. decision of the Federal Administrative Court (A-6843/2014) of September 15, 2015 and press release of the Federal Administrative Court of September 24, 2015) and considered that this provision must be interpreted in a manner that is friendly to administrative assistance according to its meaning and purpose. Therefore, it was not necessary for Switzerland to examine whether the data could have been obtained under French law (E. 6.3.3).
The Federal Supreme Court interpreted Art. 7 lit. c StAhiG in application of the pluralism of methods to the effect that only acts that are actually punishable in Switzerland are also contrary to good faith within the meaning of the above-mentioned provision (E. 8.5). In other words, the relevant facts must be fulfilled and the acts must be within the scope of the Swiss Criminal Code (SCC) (E. 8.5.6). The Federal Supreme Court then considered that Art. 47 of the Banking Act (banking secrecy) had not been violated because the major French bank, as a foreign bank, was not subject to the Banking Act. The criminal offences of Article 162 (violation of manufacturing or business secrets) and Article 273 para. 2 of the Swiss Criminal Code (Prohibited Intelligence Service / Economic Intelligence Service) were also not fulfilled, as no employees in Switzerland were involved in the acts. There is therefore no criminal offence within the territory of Switzerland.
Furthermore, France is not in breach of good faith when it makes a request for assistance which may be based on criminal offences under French law (E. 8.7). First, no criminal proceedings had been initiated against the informers and, second, it was not clear, as the previous submissions had claimed, that such information could not be used by the French tax authorities (E. 8.7.3).
The complainant's further objections, in particular that a so-called fishing expedition had taken place, were also not heard by the court and the FTA's appeal was upheld (E. 10 et seq.).