The case

Individual legal protection in connection with the automatic exchange of information on financial accounts: At the end of 2017 the Federal Council was instructed to submit to Parliament an amendment to Art. 19 of the Federal Act on the International Automatic Exchange of Information in Tax Matters (AIAG). The aim was to improve the concrete individual legal protection so that in case of “conviction of the violation of essential legal interests” no exchange of information in individual cases may take place.

Pursuant to Art. 19 (1) AIAG the persons concerned by the exchange of information are entitled to the claims in accordance with the Data Protection Act: first and foremost a right to information about the transferred or forwarded data and the correction of errors. Finally, the persons concerned are also subject to the civil court of law in in matters concerning the financial institutions. The right to information and correction of incorrect data can also be claimed from the FTA. In addition, persons concerned are entitled to an actionable remedy if the transmission of the data would involve unacceptable disadvantages due to a lack of constitutional guarantees.

The Federal Council recommends rejecting the motion: Among other things, the Federal Council assumes that the aspect demanded in the motion of “convincing the infringement of essential legal interests” materially corresponds to material protection according to Art. 19 (2) AIAG. The Federal Council states that it is sufficient “if the persons affected by the exchange of data can submit their objections to the exchange of data by providing objective evidence to support the validity of their argumentation“. This entails that a revision of Art. 19 AIAG seems unnecessary and inappropriate, particularly considering the fact that there is a lack of practical experience with the existing provision in the AIAG and due to legal certainty considerations.

Source: StR 73/2018 p. 100, 103

The commentary

The Council of States accepted the motion, and it will now be discussed in the National Council.

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