- The Federal Administrative Court confirmed that SERV was right to refuse access to crypto export lists due to a serious risk to Switzerland’s foreign policy interests.
- Lists from older information do not constitute a new timestamp according to the BGÖ; the date of completion remains decisive, not virtual compilations.
Swiss Export Risk Insurance (SERV) rightly denied an editor of “Rundschau” access to its documents. This was decided by the Federal Administrative Court on April 20, 2021 (BVGer A‑4494/2020). The lists in dispute concerned the Cipher export of Crypto AG and Crypto International AG.
In essence, SERV had refused access for three reasons: out of consideration for Switzerland’s foreign policy interests (Art. 7 para. 1 let. d of the Federal Act on Export Risk Guarantees), to protect business secrets (Art. 7 para. 1 let. g of the Federal Act on Export Risk Guarantees), and in respect for the privacy of third parties (Art. 7 para. 2 and Art. 9 of the Federal Act on Export Risk Guarantees). For those documents which had still been drawn up by its predecessor organization, the Export Risk Guarantee founded in 1934, it considered the Federal Act on Export Risk Guarantees, which entered into force in 2006, not to be applicable from the outset.
Following the previous instance, the Federal Administrative Court stated that lists drawn up from older information with a view to conciliation proceedings do not, by virtue of this alone, fall within the temporal scope of the Public Information Act (E. 3.3). Such “virtual” documents in the sense of Art. 5, para. 2 of the Code of Obligations, in other words no new timestamp. The date of completion remains decisive (E. 3.1; Art. 23 FSIO).
The more recent documents were subject to the Public Access Act, but their accessibility failed due to the reservation of the Threat to foreign policy interests. In its assessment, the court relied in particular on the report of the Business Audit Delegation on the “Crypto case” (BBl 2021 156 ff.). At the same time, it emphasized that the substantiation of such forecasts “not only on ‘hard’ facts but must necessarily also be based on assumptions, presumptions or hypotheses that are formed on the basis of the circumstances of the specific case.” (E. 5.8). As a result, it considered the threat to Switzerland’s foreign policy interests asserted by the complainants to be plausible:
“In summary […] from a serious risk to assume that publication of the information contained on the list could harm Switzerland’s foreign policy interests and international relations.” (E. 5.8 f.)
With this outcome, it was not necessary to examine the remaining exceptions, in particular the protection of business secrets. Anonymization of the list was also out of the question, because this would reduce the informative value to such an extent that access could just as well have been denied (E. 5.10.2). The appeal was rejected in its entirety. Because of the political explosiveness, the Federal Administrative Court treated the case as a “cause célèbre” and published a Media release in this matter.