Facts
Parties: Swiss Financial Market Supervisory Authority (FINMASA) against X. Ltd., Y. Ltd. and Z. Corp.
Court: Federal Supreme Court, II. Public Law Division
Date: July 15, 2011
Main issue: FINMASA ordered the disclosure of UBS customer bank data to the American authorities. The affected customers complained against this order. The Federal Administrative Court had upheld the complaint, as FINMASA had no legal basis for the disclosure of the data. FINMASA then filed a complaint with the Federal Supreme Court.
Considerations
FINMASA based its order on Art. 25 and 26 of the Banking Act (BankA), which provide for protective measures in case of insolvency. The Federal Administrative Court had decided, however, that these provisions do not constitute a sufficient legal basis for the disclosure of customer data to foreign authorities. The Federal Supreme Court confirmed this view and found that FINMASA had no legal possibility to order the disclosure of customer data outside the explicit legal or mutual assistance procedures provided for this purpose.
The Federal Supreme Court examined, however, whether the disclosure of the data was permissible under the general police powers clause. It found that FINMASA and the Federal Council had erroneously assumed that they were acting within the framework of ordinary law. The general police powers clause, however, as a constitutional emergency power, can replace a missing legal basis and legitimize interventions in fundamental rights if it is necessary to protect public order and fundamental legal interests of the state or…