Combating fraud — Cooperation between the EU and Switzerland

SUMMARY OF:

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

Decision 2009/127/EC — signature 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

WHAT IS THE AIM OF THE AGREEMENT AND THE DECISION?

The agreement provides a legal basis for administrative and judicial assistance in criminal matters between the EU (and EU countries) and Switzerland, aiming to counter fraud and other illegal activities detrimental to their financial interests in the specific areas covered by the agreement.
The decision approves the agreement on behalf of the EU. It also includes joint declarations on money laundering and on cooperation by the Swiss Confederation with Eurojust and, if possible, with the European Judicial Network.

KEY POINTS

Applicable cases

The agreement applies to the prevention, detection, investigation, prosecution and repression of fraud and any other illegal activity detrimental the parties' financial interests, as well as the recovery of amounts due or wrongly received as a result of the illegal activities. It covers:

trade in goods contrary to customs and agricultural legislation;
trade contrary to tax legislation, specifically value added tax, special taxes on consumption, and excise duties;
charging or retention of funds, such as grants and refunds from parties' budgets, including for purposes other than those for which they were initially granted;
contract award procedures.

Money laundering is also covered for offences which would incur custodial sentences of more than six months. Direct taxes, such as Income Tax, are not covered.

Assistance may not be withheld where the matter is treated as a tax offence by only one of the parties or where the legislation differs between the parties on levies, expenditure, type of rules or legal characterisation.

Strengthened administrative assistance

Administrative assistance measures involve the following measures and conditions:

Obligations arising from other agreements are not affected;
The agreement is applied within the limits of the powers conferred by domestic law;
Each party designates a central unit to process requests for administrative assistance;
Assistance may include requests for information, surveillance and investigations;
Spontaneous assistance without prior request is possible — the authority providing the information may attach conditions to its use.

Special cooperation

Special forms of cooperation include:

joint cross-border operations on imports, exports or transit of goods;
joint special investigation teams;
liaison officers seconded to other contracting parties.

Mutual judicial assistance

Judicial assistance is provided:

in proceedings brought by the administrative authorities in respect of acts punishable under the domestic law of at least one of the parties as infringements of the rules of law, and where the decision could lead to proceedings before a criminal court;
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 party may be liable;
for the purposes of investigations and proceedings to seize and confiscate the products of the illegal activities.

The agreement details the steps to be followed for making requests for assistance, including service by post.

Requests for searches and seizures depend on the following conditions:

the act giving rise to the request must be at a level punishable under the law of both parties by a penalty involving a custodial sentences of more than six months, or punishable under the law of one party by an equivalent penalty and under the law of the other party as an infringement which could lead to criminal court proceedings;
the request must be consistent with the laws of the party receiving the request.

Banking and financial information

The agreement also covers requests for banking and financial information relating to accounts held within the areas covered by the parties involved. A party may not invoke banking secrecy as grounds for rejecting all cooperation on a request for mutual assistance.

Joint committee

A joint committee, composed of representatives of the parties and with the European Commission representing the EU, applies the agreement and settles any disputes between the parties

FROM WHEN DOES THE AGREEMENT APPLY?

The agreement has applied since 8 March 2009.

The ratification dates for each country can be viewed on the agreement's European Council webpage.

In addition, a number of EU countries have adopted declarations stating that ‘until the entry into force of the Agreement, it shall consider itself bound by the Agreement in its relations with the other Contracting Parties having made the same declaration’.

BACKGROUND

For more information, see also:

Judicial cooperation (European Commission).

MAIN DOCUMENTS

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 (OJ L 46, 17.2.2009, pp. 6-7)