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Swiss Court Denies French Data Request

by Ulrika Lomas, Tax-News.com, Brussels

07 April 2017


Switzerland's highest court has ruled that the Swiss Government cannot honor a request by the French tax authorities for information on two clients of a Swiss bank because the information at issue was obtained illegally.

The case in question involves a married French couple whose bank account details were among those stolen by Herve Falciani, a former employee of HSBC in Switzerland. While Switzerland originally agreed to pass the couple's financial details to France in 2014 under the Franco-Swiss double tax treaty, this was overruled by the Swiss Federal Administrative Court on appeal in 2015, a decision upheld by Switzerland's Federal Supreme Court in a judgment issued last month and published on April 5.

In reaching its decision, the Supreme Court concluded that such an administrative request cannot be fulfilled by Switzerland if the information in question was obtained by means which are punishable under Swiss law.

"The criminal origin of the Falciani data is undisputed," the court said, noting that Herve was convicted by the Swiss Federal Criminal Court for his actions in 2015.

Falciani copied information on more than 100,000 HSBC clients onto an encrypted device while employed as an IT specialist at the bank, before fleeing to France - his country of nationality - in 2008.

He was later sentenced to five years in prison in absentia by the Swiss Federal Criminal Court.

TAGS: court | tax | double tax agreement (DTA) | law | agreements | France | Switzerland

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