The case
Administrative assistance DTA Switzerland – India (DTA CH-IN): The Federal Supreme Court had to rule on the question of whether a threatened retroactive application of domestic substantive criminal law by the requesting state constitutes a violation of the reservation of public policy (ordre public) pursuant to Art. 26 para. 3 lit. c DTA CH-IN. However, the reservation of public policy should only be applied extremely rarely and in extreme situations. The prohibition of retroactivity under criminal law is regulated in Art. 7 para. 1 ECHR. The principle of speciality ensures that information transmitted through administrative assistance is not used for criminal law purposes outside the scope of administrative assistance. In contrast, it offers no protection if the request for administrative assistance serves to enforce criminal tax law. The complainant claims that after Switzerland has provided administrative assistance, there is a threat of criminal tax proceedings based on retroactively applicable substantive criminal law provisions of the (Indian) Black Money Act. Although this cannot be ruled out, the complainant does not succeed in showing with sufficient probability that this could actually be the case. It is therefore not to be assumed that the provision of information in the present case violates public policy. Dismissal of the complainant’s appeal. For more see link.
Source: BGE und taxlawblog
The commentary
The decision is interesting in many respects: a) The appellant has written his submission in French, which he is authorised to do (Art. 42 para. 1 BGG). However, the Federal Supreme Court proceedings are usually conducted in the language of the contested decision (Art. 54 para. 1 BGG), i.e. in German in the present case. According to the court there is no reason to deviate from this in the present case. b) An appeal against a decision in the area of international administrative assistance in tax matters is admissible if a legal question of fundamental importance arises or if, for other reasons, it is a particularly important case within the meaning of Art. 84 para. 2 BBG (Art. 84a BBG). According to the wording of Art. 84 para. 2 BGG the law contains a non-exhaustive list of possible particularly important cases. The existence of a legal question of fundamental importance is usually to be affirmed if the decision can be guiding for practice, namely if many similar cases will have to be judged by lower instances. – The judgement is worth reading. For more see link.
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