Blocking statutes and direct cooperation with foreign authorities

Articles 271 and 273 of the Criminal Code

The formal channels described so far exist because Swiss law forbids the informal ones. Article 271 of the Swiss Criminal Code punishes anyone who, without authorisation, carries out activities on Swiss territory on behalf of a foreign state that are the responsibility of a public authority. Article 273 punishes economic espionage, which includes making a manufacturing or business secret accessible to a foreign official agency or a foreign private enterprise. Together with banking secrecy under Article 47 of the Banking Act, these provisions form the Swiss blocking statutes. A study of cross-border investigations summarises their effect: information obtained in Switzerland may not be disclosed for use in foreign proceedings without authorisation unless the person can freely dispose of it, while non-public information about third parties must pass through the official mutual assistance channels. Even the consent of the persons concerned may not remove the risk under Article 273, because the provision also protects public Swiss interests.¹

The Federal Supreme Court tightened the practice in a judgment of 1 November 2021. The chairman of a Swiss asset management company had handed over a USB stick with 109 client files to the United States Department of Justice, in order to obtain a non-prosecution agreement in the context of the American programme against Swiss banks. The Court confirmed his conviction under Article 271. It held that only information of which a person can freely dispose may be handed over for foreign proceedings, and that identifiable data concerning third parties may not be transmitted directly outside the mutual assistance channels.² Commentators criticised the judgment for leaving open whether the provision also applies to data already located abroad. For Zurich banks and asset managers facing foreign investigations, it confirmed that cooperation with foreign authorities requires either an authorisation from the competent federal department or the use of official channels.

Direct transmission to foreign supervisors under Article 42c FINMASA

The financial market supervision law contains an important exception. Article 42c of the Financial Market Supervision Act allows supervised institutions to transmit non-public information directly to foreign supervisory authorities and bodies, without prior authorisation, as long as the requirements of confidentiality and speciality are met. FINMA explained the provision in Circular 2017/6 on direct transmission. It maintains a list of foreign authorities for which it presumes that these conditions are fulfilled.³ The provision covers above all information needed by foreign supervisors for the consolidated supervision of banking groups and for the supervision of branches and subsidiaries of Swiss institutions abroad. Client-related data are treated more restrictively. Where client information is concerned, the institution must respect the rules on administrative assistance between FINMA and foreign authorities, including the client procedure, in which the client may be heard and may appeal.

A revision of the Financial Market Supervision Act is under way. On 12 September 2025 the Federal Council adopted a dispatch that would, among other changes, exclude the client procedure in cases of market abuse affecting foreign financial markets and establish a presumption that the conditions of specialty and confidentiality are met for authorities on FINMA’s list, which covers more than one hundred jurisdictions.⁴ Once adopted by Parliament, the revision will bring the Swiss regime closer to that of other large financial centres and further reduce the room for delaying foreign supervisory investigations.

Notes

1. Bär & Karrer, “Switzerland: Data Protection & Secrecy in Cross-Border Investigations”, https://www.baerkarrer.ch/en/publications/switzerland-data-protection-secrecy-cross-border-investigations. ↩
2. Lenz & Staehelin, “New precedent does not provide clear guidance on the boundaries of the Swiss blocking statute”, https://www.lenzstaehelin.com/news-and-insights/browse-thought-leadership-insights/insights-detail/new-precedent-does-not-provide-clear-guidance-on-the-boundaries-of-the-swiss-blocking-statute-1/, discussing Federal Supreme Court judgment 6B_216/2020 of 1 November 2021 and the earlier judgment 6B_804/2018 of 4 December 2018. ↩
3. FINMA, “Ability of foreign financial market supervisory authorities to provide administrative assistance”, https://www.finma.ch/en/supervision/cross-sector-issues/direktuebermittlung/, and Blum&Grob, “FINMA Circular 2017/06 ‘Direct transmission’”, https://blumgrob.ch/en/update/finma-rundschreiben-2017-06-direktuebermittlung-konkretisierung-von-art-42c-finmag-zur-uebermittlung-nicht-oeffentlicher-informationen-durch-beaufsichtigte-an-auslaendis/. ↩
4. Vaïk Müller (CMS Switzerland), “Switzerland boosts administrative cooperation between international authorities”, 1 October 2025, https://cms.law/en/che/legal-updates/switzerland-boosts-administrative-cooperation-between-international-authorities. ↩

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 September 2025.