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January 13, 2010 - Phil Hodgen

Swiss Federal Administrative Court ruling is cold comfort

I asked a Zurich-based lawyer whether the recent Administrative Court ruling (which stated that the Swiss bureaucracy “FINMA” had illegally given the IRS 250 names of American customers of UBS) would be any comfort to the 4,450 people at risk of disclosure.

The answer, anonymously, and quoted with permission:

Unfortunately in my opinion the new ruling of Swiss Federal Administrative Court will not impact at all the disclosure of the 4’450 names. Subject of the new decision was the question whether FINMA was competent to apply emergency rules that had the effect

I. to blow-up the proceeding of the judicial control of the SFTA decision to provide assistance to the IRS (judicial control as guaranteed by Swiss legislation)

II. to impair the (criminal law) protection of Swiss banking secrecy (Paragraph 47 of Swiss Banking Law)

The decision does say that FINMA had no constitutional competence at all to apply emergency rules and the only authority competent (provided there was really a true economic emergency situation) would have been the Swiss Federal Government (that in this case did not decide!).

Voluntary Disclosure