Federal Supreme Court, 13.03.2026, 2C_416/2025
Facts
The Ukrainian tax authority submitted two requests for administrative assistance to the Federal Tax Administration (FTA) based on the Convention on Mutual Administrative Assistance in Tax Matters (MAC). These requests sought information regarding the banking relationships of seven companies (six Ukrainian and one Cypriot) with a Swiss bank.
The FTA granted these requests through two final decisions. The seven companies concerned appealed these decisions to the Federal Administrative Court (FAC). Alternatively, they requested a stay of the assistance proceedings in Switzerland, citingArt. 23 para. 2 MAC. They justified this request by stating that they had initiated legal proceedings in Ukraine regarding the Ukrainian tax authority's alleged violation of Ukrainian banking secrecy.
In an interlocutory decision, the FAC rejected the request for a stay. It held that Art. 23 para. 2 MAC applied only to assistance proceedings concerning the recovery of tax claims, not to the exchange of information. The companies then filed an appeal in public law matters with the Federal Supreme Court against this interlocutory decision.
Legal Analysis
The Federal Supreme Court first examined the admissibility of the appeal. As it concerns an interlocutory decision, the appeal is only admissible if it could cause irreparable harm (Art. 93 para. 1 let. a LTF). The Federal Supreme Court accepted this condition, reasoning that if assistance were granted and the information transmitted, the proceedings initiated in Ukraine regarding the violation of banking secrecy would become moot, causing irreparable legal harm to the appellants.
Furthermore, in matters of administrative tax assistance, an appeal to the Federal Supreme Court is only permitted if the case raises a legal issue of fundamental importance (Art. 84a LTF). The Federal Supreme Court considered this condition also met. The question of whether the right to a stay provided for in Art. 23 para. 2 MAC applies solely to assistance in recovery or also to the exchange of information is a novel issue that has never been decided before, and its clarification is of importance for future practice.
On the merits, the dispute concerns the interpretation of Art. 23 para. 2 MAC. This provision stipulates that if an action is brought in the requesting state against measures taken under the Convention, the requested state (Switzerland) must stay the proceedings.
To interpret this provision of international law, the Federal Supreme Court refers to the rules of the Vienna Convention on the Law of Treaties (Art. 31 and 32 CV). Interpretation must be carried out in good faith, following the ordinary meaning of the terms in their context, in light of the object and purpose of the treaty. Preparatory work, such as the MAC "Explanatory Report," may serve as a supplementary means of interpretation. The Court also recalls that tax administrative assistance is governed by the principle of speed (Art. 29 para. 1 of the Federal Constitution.) and the objective of an exchange of information that is as broad and effective as possible.
Application to the specific case
The appellants argue for a broad interpretation of Art. 23 para. 2 of the MAC. They put forward two main arguments:
- Grammatical argument: The provision mentions actions regarding recovery "in particular," which suggests that this is merely an example and that other types of actions may also justify a suspension.
- Systematic argument: Article 23 is located in Chapter IV of the MAC, which contains general provisions applicable to all forms of assistance (exchange of information, recovery, service of documents), rather than in Chapter II, which deals specifically with recovery.
The Federal Supreme Court rejects this line of reasoning by conducting a comprehensive analysis of the provision:
- Contextual interpretation: The Federal Supreme Court analyzes the entirety of paragraph 2 of Article 23 of the MAC. It notes that while the second sentence provides for suspension, the third sentence specifies that, "however," the requested State may take "conservatory measures to ensure recovery." This direct and exclusive link to the concept of recovery in the sentence immediately following the one regarding suspension strongly indicates that the scope of the suspension is limited to recovery proceedings.
- Teleological interpretation (based on purpose): The objective of the MAC is to ensure an effective and rapid exchange of information. Interpreting Art. 23 para. 2 of the MAC as allowing the suspension of an information exchange procedure for any action brought in the requesting State would run counter to this goal and the principle of speed. This would open the door to dilatory tactics that would strip the assistance of its substance.
- Interpretation using preparatory work: The Federal Supreme Court refers to the MAC "Explanatory Report." This document unequivocally confirms that the suspension was designed exclusively for cases of assistance in recovery. The goal is to prevent the requested State from proceeding with the forced execution of a tax claim whose existence or amount is contested in the requesting State, thereby protecting the taxpayer and the requested State from potential claims for damages.
The Federal Supreme Court concludes that the combination of these interpretation methods leads to a clear result: the right to suspension of the procedure provided for in Art. 23 para. 2 of the MAC is limited to cases of assistance for the recovery of tax claims (Art. 11 et seq. of the MAC) and does not apply to information exchange procedures (Art. 4 et seq. of the MAC).
In this case, as Ukraine's request concerns an exchange of information and not recovery, the appellants cannot claim a right to suspension. The Federal Administrative Court therefore correctly rejected their request.
Outcome
The Federal Supreme Court dismisses the public law appeal. The incidental decision of the Federal Administrative Court refusing to suspend the proceedings is upheld. The court costs, amounting to 10,000 francs, are to be borne jointly and severally by the appellants.
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