Tax Treaty Case Law around the Globe 2018

S. 401Chapter 33 Switzerland: Exchange of Information and “Stolen Data”

Lysandre Papadopoulos

33.1. Introduction

In recent years, several cases of banking data leaks have shown that their confidentiality is not guaranteed (any more). They have also shown that state authorities are inclined to – and actually do – use lists of clients that have leaked from banks’ databases. Under Swiss law, leaking banking data is illegal and Swiss authorities may bring such cases to the attention of criminal courts. In one of the prominent cases, after having stolen from the bank HSBC Geneva, Switzerland, data containing the names of clients, Hervé Falciani was sentenced in 2015 by the Federal Criminal Tribunal (FCT) for attempted serious industrial espionage.

The issue of stolen data has also become an issue in cases of administrative assistance in tax matters. In February and March 2017, the Federal Supreme Court (FSC) had to rule on two important cases concerning requests for administrative assistance filed in accordance with article 28 of the France-Switzerland Income and Capital Tax Treaty (1966) (France-Switzerland tax treaty), which mirrors article 26 (Exchange of information) of the OECDS. 402 Model. It was...