The Federal Act on the International Automatic Exchange of Information in Tax Matters (AEOI Act) regulates, among other things, legal remedies against the transfer of data by way of administrative assistance. Art. 19 (1) of the AIAG expressly states that the data subjects are entitled to the rights under the DPA vis-à-vis the financial institution – i.e. in particular the rights to information, correction and deletion (Arts. 5, 15, 25 DPA). In contrast, data subjects can only obtain information from the Federal Tax Administration (FTA) and request a correction, provided that the incorrect data “are based on transmission errors” (Art. 19 para. 2 sentence 1 AIAG). Only in the event that the transfer causes unreasonable disadvantages due to a lack of constitutional guarantees does the law refer to legal protection against real acts (Art. 19 para. 2 sentence 2 in conjunction with. Art. 25a VwVG).
The Federal Supreme Court dealt with the interpretation of this Art. 19 para. 2 AIAG in the ruling 2C_780/2020 The complainant had unsuccessfully requested the FTA to remove his information from the data to be transmitted to Argentina, which identified him as a control holder of an account.
The hurdle for a Federal Supreme Court ruling in this case was high because decisions in the area of international administrative assistance in tax matters are only appealable if a legal question of fundamental importance arises or the case is otherwise “particularly important” (Art. 84a in conjunction with 84 para. 2 BGG). Here, the Federal Supreme Court intervened in the appeal because it did not consider the question, “how far the claim under data protection law against the FTA extends”, as controversial and of great practical importance (E. 1.3).
The Federal Supreme Court disposed of the equally controversial question of the extent to which the legal protection granted by Art. 19 AIAG complies with fundamental rights by reproaching the complainant for not having complied with its heightened duty to complain in this area (E. 4.3). Strikingly, it nevertheless came back to this in its substantive assessment and reproduced in an entire recital – without comment – the latest literature, which critically comments on the constitutionality and convention conformity of the provision (E. 5.4).
Based on the common usage, the history and the objective of the provision, the Federal Supreme Court advocated a narrow understanding of the term. In its view, there is no room for a teleological reduction, as demanded by parts of the doctrine (E. 5.5). Accordingly, the FTA cannot and should not carry out a substantive examination and does not need to question the legal assessment of the financial institution (E. 5.6.2). Accordingly, it only has to intervene “if the incorrectness of the data causal with the transmission process related” (E. 5.2). Thus, the scope of application of the “transmission error” essentially shrinks to “mere oversights” made by the financial institutions when handing over the documents (E. 5.3).
Since in the present case there was nothing to indicate that the data had only been falsified when they were transmitted, the complainant could not derive a claim for correction against the FTA from Art. 19 para. 2 ISA (E. 5.7). The Federal Supreme Court dismissed the claim and pointed out to the complainant that in this respect he had to “rely solely on the bank”. In the event that the bank refused to make a correction, it referred him to civil proceedings (E. 5.8).