The case

The Brazilian footballer Neymar is at the centre of a lengthy court case that concerns the protection of information. A ruling by the Federal Supreme Court in this matter could have an impact on the UBS tax case in France. For more see link (German).

The question is whether data and information have to be disclosed. This depends on whether the “subjects concerned” (companies) have the right to defend themselves, for example by opposing the transfer of data concerning them-self. The Federal Supreme Court has ruled that the FTA was not obliged to inform the Brazilian companies spontaneously because they cannot claim any interest concerning protection. In the ruling, the Federal Supreme Court defines certain interest groups (parties) for which it considers additional protection to be necessary. For more see link (French).

In a further ruling published yesterday, the Federal Supreme Court decided that a bank (UBS) is in principle not a party of the administrative assistance procedure in tax matters (with France) “unless the bank is affected by the request for administrative assistance to a similar extent” as the person concerned. For more see link (German).

Source: finews und BG

The commentary

In the administrative assistance proceedings with France these rulings are unfavourable to UBS. The Federal Administrative Court has ruled that UBS is not a party to these proceedings and will therefore not be admitted to the proceedings. UBS has appealed against this decision. The decision of the Federal Supreme Court is still pending. Nevertheless, there is every indication that Switzerland will transfer the requested client data to France. According to the Federal Administrative Court, UBS can only appeal the ruling to the Federal Supreme Court if the case is of “fundamental importance”.

Note: Not only banks, but all financial intermediaries are not allowed to defend the interests of their clients within the administrative information exchange procedure. However, they must inform their clients so that they can protect their interests.

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