Overview of tax law decisions of the Swiss Federal Supreme Court published between September 12 - 18, 2022:
- Judgment of 21 December 2021 (2C_825/2019) - intended for publication: Recommendation of the FDPIC in the matter of the right to information in international administrative assistance; The question in dispute in this case is the legality of the failure to provide prior information to persons not directly affected by the administrative assistance procedure, whose data are nevertheless being processed. The FTA has requested the suspension of these proceedings until BGer 2C_376/2019 of 13 July 2020(BGE 146 I 172) has been decided. The subject of these proceedings was the interpretation of Art. 14 para. 2 in conjunction with Art. Art. 19 para. 2 StAhiG as well as Art. 48 VwVG (see our article of 9 August 2020). Persons not directly affected by the administrative assistance procedure are nevertheless data subjects within the meaning of the Data Protection Act. In the present case, data from business transactions is affected, which is why there is no data requiring special protection pursuant to Art. 3 lit. c DPA. Under Art. 18a FADP, the authorities are obliged to inform the data subjects in principle of any acquisition of personal data. However, the FTA is of the opinion that the disclosure of significant third party data by way of administrative assistance is expressly provided for in the respective DTA or in Art. 4 para. 3 and Art. 20 FTA Act. Thus, there is a basis in special law and consequently the obligation to provide information pursuant to Art. 18a para. 4 lit. a FADP does not apply. Within the framework of Art. 14 para. 2 StAhiG, the FTA is only required to inform those third parties about the administrative assistance proceedings whose right to appeal within the meaning of Art. 19 para. 2 StAhiG is evident on the basis of the files. The FTA thus expressly provides for the transmission of presumably relevant data of persons not directly affected by the administrative assistance proceedings (Art. 4 para. 3 FTA). At the same time, it also regulates when there is a duty to inform third parties (Art. 14 para. 2 StAhiG). The Federal Supreme Court came to the conclusion that Art. 4 para. 3 StAhiG met the fundamental rights requirements for the special legal basis. It should therefore be noted that the general prior information obligation under Art. 18 para. 4 lit. a FADP does not apply due to the special legal basis in the StAhiG. However, in individual cases, if the data to be transferred prove to be particularly worthy of protection, prior information of the third party may be required. Appeal of the FTA upheld.
Non-occurrence:
Decisions are listed chronologically by publication date.
