European Court of Human Rights Rules Mutual Assistance Agreement in Tax Matters Between Switzerland and U.S. Does Not Violate the Convention (December 22, 2015) [1]
On December 22, 2015, the European Court of Human Rights (Court) ruled [3] (judgment only available in French) that implementing a mutual assistance agreement in tax matters between Switzerland and the United States did not breach the European Convention on Human Rights [4] (Convention). According to the press release [5], “the case concerned the transmission to the US tax authorities of the applicant’s bank account details in connection with an administrative cooperation agreement between Switzerland and the USA.” In 2008, U.S. tax authorities discovered that Swiss bank UBS had thousands of bank accounts belonging to U.S. tax payers which had not been declared. After the IRS brought civil proceedings to force UBS to hand over details related to 52,000 bank accounts, the Swiss government concluded an agreement with the U.S. government to determine which taxpayers were involved. Following litigation regarding the validity of the agreement, the court of last instance in Switzerland found that the agreement was “binding upon the Swiss authorities, which did not have to verify the conformity of that text to Federal law or previous conventions.” The applicant, a U.S. and Saudi national, then filed his claim with the Court, arguing that “the disclosure of his bank details had amounted to a violation of his right to respect for his private life” under Article 8 of the Convention. The Court found that the state’s actions were foreseeable because of long-standing Swiss judicial practice “to the effect that provisions on administrative and criminal-law cooperation requiring third parties to provide specific information were procedural in nature and consequently applied, in principle, to all present or future proceedings, including those relating to tax periods predating their adoption.” It further ruled that the measure pursued a legitimate aim, as it was “conducive to protecting the country’s economic well-being” and “formed part of an all-out effort by the Swiss Government to settle the conflict between the bank UBS and the US tax authorities.” It further found the action “necessary in a democratic society,” noting that “the major economic interests at stake for the country and the Swiss interest in being able to honour its international undertakings had taken precedence over the individual interests of the persons concerned by the measure.” Finally, the Court noted that only the applicant’s bank details had been shared, no further private information was divulged and he “had benefited from various procedural safeguards” such as the ability to appeal the Swiss administration’s decisions. Based on essentially the same grounds, the Court ruled that there had not been a violation of Article 14 (prohibition of discrimination) of the Convention.