U.S. Tax Pro­gram: Fede­ral Court Pro­hi­bits Banks from Dis­clo­sing Names of Att­or­neys to U.S. Authorities

With today’s Media release (Octo­ber 5, 2016), the Fede­ral Supre­me Court published its ruling of Sep­tem­ber 22, 2016 (4A_83/2016), which pro­hi­bi­ted a Tici­no bank, based on the DPA, from pro­vi­ding the U.S. aut­ho­ri­ties, as part of the U.S. tax pro­gram, with data on two att­or­neys who had mana­ged accounts at the Tici­no bank as agents for U.S. cli­ents and on a law firm that had pro­vi­ded U.S. cli­ents to the Tici­no bank.

The inten­ded release of data to the U.S. aut­ho­ri­ties con­sti­tu­tes in prin­ci­ple a vio­la­ti­on of the pri­va­cy of the data sub­jects, sin­ce the U.S. does not have legis­la­ti­on that ensu­res ade­qua­te data pro­tec­tion within the mea­ning of Artic­le 6(1) FADP. Under the­se cir­cum­stances, release of the data may be justi­fi­ed under the Data Pro­tec­tion Act if this is indis­pensable to safe­guard over­ri­ding public inte­rests (Artic­le 6(2) FADP). Sin­ce this requi­re­ment must be met at the time the data is han­ded over, the cir­cum­stances may chan­ge in the cour­se of the pro­ce­e­dings. In this sen­se, the pro­vi­si­on of data to the US aut­ho­ri­ties would be indis­pensable if, wit­hout the pro­vi­si­on of data, it could be assu­med that the tax dis­pu­te with the USA would esca­la­te again and that the Swiss finan­cial cen­ter would be adver­se­ly affec­ted and Switzerland’s repu­ta­ti­on as a relia­ble nego­tia­ting part­ner would be impai­red. The com­plainant bank does not suf­fi­ci­ent­ly demon­stra­te that dis­clo­sure at this point in time is indis­pensable to safe­guard the public inte­rest. As a result, the Com­mer­cial Court does not vio­la­te any law when it pro­hi­bits the disclosure.

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