Facts
On October 14, 1998, ABB Asea Brown Boveri (ABB) and Elsag Bailey Process Automation N.V. (Elsag Bailey) announced a public takeover offer. In the run-up to this acquisition, there were conspicuous purchases of Elsag Bailey shares and options from October 2 to October 13, 1998. Among the buyers was the Y. Bank, which acquired 9,700 Elsag Bailey shares on October 12, 1998.
On October 21, 1998, the U.S. Securities and Exchange Commission (SEC) requested administrative assistance from the Swiss Federal Banking Commission (EBK) pursuant to Art. 38 of the Federal Act on Stock Exchanges and Securities Trading (BEHG). The EBK complied with this request on May 27, 1999 and ordered that the information and documents on the share purchase transmitted by the Y. Bank be disclosed to the SEC.
A., B., C. and D.X. appealed to the Federal Data Protection Commission and filed an administrative court appeal with the Federal Supreme Court against this. They argued that the EBK's decision violated Art. 38 para. 2 BEHG and Art. 6 of the Data Protection Act (DSG).
Considerations
The Federal Supreme Court stated that the Data Protection Act is generally also applicable to the administrative assistance procedure under stock exchange law. However, the legislator has created a specific data protection regulation in the BEHG that takes precedence over the DSG.
Pursuant to Art. 38 para. 2 BEHG, the EBK may only transmit non-publicly accessible information to foreign supervisory authorities if the recipients are bound by official or professional secrecy and compliance with the principle of specialty and the principle of the long arm appears to be ensured. This is (not yet) the case in relation…