Swiss criminal law today: secrecy, sovereignty and tax predicate offences

Article 47 of the Banking Act after 2015

Article 47 of the Banking Act remains in force and has been strengthened. In its current version it punishes with a custodial sentence of up to three years or a monetary penalty any person who wilfully discloses a secret entrusted to him in his capacity as a member of a governing body, employee, appointee or liquidator of a bank, or that he has observed in that capacity. The same penalty applies to anyone who attempts to induce such a breach. With effect from 1 July 2015 the legislature extended the offence to persons who disclose a secret revealed to them in breach of the provision, or who exploit it for themselves or for others. Paragraph 1bis raised the penalty to a custodial sentence of up to five years for those who obtain a pecuniary advantage for themselves or another.¹ The amendment was a response to the sale of stolen client data to foreign tax authorities, of which German purchases of data CDs were the best known example.

The duty of secrecy is subject to the federal and cantonal provisions on the duty to testify and to provide information to the authorities, which Article 47 reserves expressly.² Disclosure to the Federal Tax Administration under the AEOI Act or the Tax Administrative Assistance Act, to a Swiss prosecutor under the Criminal Procedure Code or to the Money Laundering Reporting Office (MROS) under the Anti-Money Laundering Act is therefore lawful. The secret also yields to the client's own consent. The waiver required by the Italian voluntary disclosure, by which the client authorized his Swiss bank to transmit his data to the Italian authorities on request, operated in this way. As a consent within the meaning of Article 47, it allowed the bank to answer an Italian request without the procedure of administrative assistance.

Articles 271 and 273 of the Criminal Code

Two further provisions limit the ways in which information may leave Switzerland. Article 271 of the Swiss Criminal Code punishes any person who, without authorization, carries out activities on behalf of a foreign state on Swiss territory that are the responsibility of a public authority, or who facilitates such activities. Article 273 punishes economic espionage, including making a manufacturing or business secret accessible to a foreign official agency, a foreign organization or private enterprise, or their agents.³ Both provisions protect Swiss sovereignty and became prominent during the American tax programme for Swiss banks, when the delivery of data to the United States Department of Justice required authorizations from the Federal Council under Article 271.⁴

For the Swiss-Italian relationship the provisions matter in three situations. A Lugano bank that receives a request directly from an Italian authority, for example from a public prosecutor or from the Guardia di Finanza, may not answer it outside the channels of mutual assistance without risking a breach of Article 271, unless the client has validly consented to the disclosure. A relationship manager who travels to Italy and is questioned there is protected by Article 47 against compelled disclosure in Switzerland, but he is exposed to Italian procedural law in Italy, a risk that Chapter E.IV treats in the context of cross-border services. Finally, an employee who transmits client data to an Italian authority on his own initiative may commit offences under Article 47 of the Banking Act and Article 273 of the Criminal Code at the same time.

Notes

1. Winston & Strawn, "Criminal Liability in Switzerland for Resale of Stolen Banking Data", Privacy Law Corner, https://www.winston.com/en/blogs-and-podcasts/privacy-law-corner/criminal-liability-in-switzerland-for-resale-of-stolen-banking (entry into force on 1 July 2015 of Art. 47 para. 1 lit. c and para. 1bis BankA; up to three and up to five years). The current text is in the Federal Act on Banks and Savings Banks of 8 November 1934 (Banking Act, BankA), SR 952.0, Art. 47, droit-bilingue.ch, https://www.droit-bilingue.ch/de-fr/9/95/952.0-47-100.html (para. 1bis in force since 1 July 2015, AS 2015 1535). ↩
2. BankA (above), Art. 47 para. 5, which reserves the federal and cantonal provisions on the duty to testify and to provide information to the authorities. ↩
3. Swiss Criminal Code of 21 December 1937 (SCC), SR 311.0, Art. 271 para. 1 (unlawful activities on behalf of a foreign state) and Art. 273 (industrial espionage), English text in droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/31/311.0-271-334.html and https://www.droit-bilingue.ch/de-en/3/31/311.0-273-336.html. ↩
4. Swiss Federal Council, decisions of July 2013 under Art. 271 SCC enabling banks to apply for individual authorizations to cooperate with the United States Department of Justice under the programme announced on 29 August 2013. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.