Agreement with the Swiss Confederation
The importance of protecting the financial interests of the European Community (EC) efficiently does not end at the external frontiers of Member States. Criminals operate beyond the borders of the European Union (EU). Thus, measures must be taken to combat fraud and all other illegal activities affecting the financial interests of the EU by reinforcing administrative and judicial mutual assistance. On 22 February 2005, the European Parliament approved the conclusion of the cooperation agreement between the European Community and its Member States, on the one hand, and the Swiss Confederation on the other.
Council Decision 2009/127/EC of 18 December 2008 concerning the signature, on behalf of the European Community, of the Cooperation Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests.
The agreement aims to extend administrative assistance and mutual judicial assistance in criminal matters between the European Community (EC) and Switzerland. With this decision, the Commission approves the agreement on behalf of the EC. Title I of the agreement deals with the general provisions applicable to the following two titles: administrative assistance (Title II) and mutual legal assistance (Title III). The last Title (IV) contains the final provisions. The Final Act contains a joint declaration on money laundering and on cooperation by the Swiss Confederation with Eurojust and, if possible, with the European Judicial Network, as well as an Agreed Minute to combat fraud and any other illegal activity to the detriment of the parties’ financial interests.
Application of the agreement only to specific cases
The agreement is designed to combat fraud at every stage: administrative and criminal prevention, detection, investigation, prosecution and enforcement. However, it is only applicable in very specific cases, such as:
- trade in goods contrary to customs and agricultural legislation;
- trade contrary to tax legislation applicable to value added tax, special taxes on consumption and excise duties;
- the charging or retention of funds, such as grants and refunds, from the budget of the contracting parties or budgets managed by them or on their behalf, including their use for purposes other than those for which they were initially granted;
- procedures for the awarding of contracts by the contracting parties.
The agreement also provides for the seizure and recovery of amounts due or wrongly received as a result of the illegal activities referred to above. Administrative or judicial assistance may not be withheld on the ground that the request relates to an offence treated as a tax offence by one of the parties. The same is true if the legislation of one party does not provide for the same type of levy or expenditure or does not contain the same type of rules or legal characterisation.
In minor cases, however, the competent authorities may refuse a request for cooperation. These are cases where the amounts of un-paid or evaded duty do not exceed EUR 25 000or where the value of any goods concerned does not exceed EUR 100 000. Cooperation may also be withheld if the requested party considers that execution of the request would be contrary to its sovereignty, security, public policy or other vital interests. The text also includes other possibilities for refusing a request, for example if the number of requests imposes disproportionate administrative burdens.
The scope of the agreement includes laundering of the proceeds of the illegal activities covered by it, provided the activities are punishable under the law of the two contracting parties (custodial sentence or measure restricting freedom for more than six months).
Direct taxes are excluded from the scope of the agreement.
Reinforcing administrative assistance between the European Union and Switzerland
The agreement does not affect obligations arising from other agreements, in particular the Additional Protocol on mutual administrative assistance in customs matters of 9 June 1997. The authorities of the contracting parties apply the agreement within the limits of the powers conferred upon them by their domestic law. Each party designates a central unit to process requests for administrative assistance.
The agreement contains provisions on the form and content of requests for assistance. Among others, it covers requests for information, surveillance and investigations.
However, spontaneous assistance without prior request is also possible. In that case, the authority transmitting the information may, in accordance with its domestic law, attach conditions to the use of the information.
Special forms of cooperation
In order to implement the agreement effectively, special forms of cooperation are provided for:
- joint cross-border operations on imports, exports or transit of goods, when the financial interests of one of the contracting parties are at risk;
- joint special investigation teams;
- liaison officers that may be seconded to the competent departments of the other contracting parties.
Supplementing existing agreements on mutual judicial assistance
The purpose of the agreement is to supplement the European Convention on mutual assistance in criminal matters of 20 April 1959 and the Convention on laundering, search, seizure and confiscation of the proceeds from crime of 8 November 1990, as well as to facilitate their application between the contracting parties. The two conventions were signed under the aegis of the Council of Europe in Strasbourg. The agreement also ensures that more favourable provisions of bilateral or multilateral agreements between the contracting parties are not affected.
Judicial assistance under the agreement is given:
- in proceedings for offences that are punishable under the domestic law of at least one of the contracting parties as infringements of rules of law. It must be possible for such infringements to give rise to proceedings before a court having jurisdiction in criminal matters;
- in civil actions joined to criminal proceedings, as long as the criminal court has not given a final judgement;
- for facts or offences for which a legal person of the requesting contracting party may be liable;
- for the purposes of investigations and proceedings for the seizure and confiscation of the instruments and products of the illegal activities.
The agreement details the steps to be followed for the transmission of requests (letters rogatory), which includes service by post. The authorities of the requesting contracting party may be authorised to attend the execution of the request for judicial assistance, but their presence does not require the consent of the person concerned by the measure. Conditions may be attached to the authorisation. The persons present, however, have access to the same premises and the same documents as the representatives of the other party, provided that judicial confidentiality is respected.
The agreement provides that letters rogatory for searches and seizures must not be dependent on conditions other than the following:
- that the act giving rise to the request is punishable under the law of both contracting parties by a penalty involving deprivation of liberty or a detention order of a maximum period of at least six months, or is punishable under the law of one party by an equivalent penalty and under the law of the other party as an infringement of the rules of law that is prosecuted by the administrative authorities where the decision may give rise to proceedings before a criminal court;
- that execution of the letters rogatory is consistent with the law of the party receiving the request for judicial assistance. As regards laundering offences covered by the agreement, letters rogatory for purposes of search and seizure are also admissible, provided that the activities making up the precursor offence are punishable under the law of the two parties by a penalty involving deprivation of liberty or a detention order of a maximum of more than six months.
Provision is also made for rules to speed up mutual assistance and the use of evidence.
Banking and financial information
The agreement also covers requests for banking and financial information where the conditions referred to above have been met. "Banking and financial information" includes information on bank accounts opened at banks established in the territory of one of the parties. The requester must state the reasons why the information requested is vital to the investigation. Banking secrecy is not a ground for rejecting all cooperation.
A joint committee, composed of representatives of the parties, is set up in order to apply the agreement and to settle any disputes between the parties. The Commission acts as the representative of the Community in this committee.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 46 of 17.2.2009