EU-Swiss agreement against illegal activity

Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, to combat fraud and all other illegal activity to the detriment of their financial interests

Co-operation Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, to combat fraud and all other illegal activity to the detriment of their financial Interests.

The Agreement, made between the European Community and its Member States and the Swiss Confederation provides for mutual administrative co-operation and judicial co-operation in criminal matters in relation to:

customs duties,

VAT,

special taxes on consumption and excise duties,

agricultural legislation,

structural and other funds,

public procurement.

Also covered is the laundering of the proceeds of the activities covered by the agreement if the predictive offence is punishable by a custodial sentence of more than six months.
Direct taxes are excluded from the agreement.

The Agreement is intended to achieve the same levels of cooperation with Switzerland as EU Member States currently have between themselves, and between the Member States and the Community.

Key elements of the Agreement are as follows:

Its application is, in principle, not subject to the dual criminality rule, where there has to be an equivalent offence under the law of both parties. Dual criminality is an optional requirement for acting upon letters rogatory for search and seizure and for meeting requests, whether criminal or not, for banking and financial data. Dual criminality will apply to letters rogatory for search and seizure in respect of money laundering offences.

It contains a general non-retroactivity clause as of six months after the date of signature.

The levels of administrative assistance to be provided correspond to the standards that are used within the EU, and are equivalent to those of the Naples II Convention.

Judicial cooperation will be granted in relation to all offences within the scope of the agreement, including in respect of indirect tax evasion and smuggling.

Requests for search or seizure in respect of money laundering offences have to be executed provided that the predicate offence is punishable by a custodial sentence of more than six months according to the law of both the requesting party and the requested party. This means that indirect tax fraud and commercial smuggling will be covered.

Requests for information on bank accounts, on banking transactions and requests for the monitoring of banking transactions will be treated in compliance in the 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the EU, including, if necessary, the non-disclosure of investigation measures to the person subject to them.

Wherever possible, requests for surveillance, investigations and joint operations will be granted. This includes the possibility for authorised staff of the requesting authority to be present during the execution of the request for assistance and to consult the documents, propose questions, suggest measures of investigation and, where appropriate, to have access to the same premises and documents and information as to the staff of the requested authority. However, they may not exercise the powers vested in the representatives of the requested authority on their own initiative.

The parties retain a right to refuse requests where:

Sovereignty, security, public order or other essential interests might be adversely affected;

The amounts involved are small;
It believes, in relation to administrative co-operation, the requesting party is being too demanding or disproportionate;

The requesting party is not complying with requests from other parties.

Because of the prominence of Switzerland in a number of indirect tax frauds, where existing Conventions and protocols had limited impact, particularly due to restrictive interpretation in Swiss legislation, the European governments havve been keen to secure improved cooperation with the Swiss authorities.

Author: international

Mentioned in these Entries

International Conventions from 1991.