TPF, 06.25.2026, RR.2025.183
Facts
The Munich tax authorities (Germany) are conducting criminal proceedings against A. for various tax offenses.
In this context, the German authorities submitted a request for mutual legal assistance to Switzerland on October 25, 2024.
This request sought, in particular, to obtain authorization to search the residence of A. and the premises of his company, A. GmbH, and requested the presence of German tax investigators during these operations (Facts, p. 2).
On October 1, 2025, the Public Prosecutor's Office of the Canton of Zug, acting as the executing authority, issued an interim decision to proceed with the request.
It ordered the searches and authorized the presence of German tax investigator B., provided that the latter committed in writing not to use the information obtained before the final conclusion of the mutual assistance proceedings (Facts, p. 2).
On November 17, 2025, the two designated German investigators, B. and C., signed declarations of guarantee to that effect.
The searches were carried out on November 18, 2025.
According to the official reports, the German investigators were present but did not actively participate in the searches due to the objection of A.'s spouse (Facts, pp. 2-3).
On November 26, 2025, A. and his company, A. GmbH (hereinafter: the appellants), filed an appeal with the Appeals Chamber of the Federal Criminal Court.
They challenge the decision authorizing the presence of the foreign agents, the search warrants, and the conduct of the operations, claiming that the German agents allegedly took photographs of documents with their mobile phones.
They seek, among other things, the annulment of the decision authorizing the presence of the agents and a finding that their actions were unlawful (Facts, p. 3).
Law
Mutual legal assistance between Switzerland and Germany is governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and various bilateral and multilateral agreements.
Domestic law, in particular the Federal Act on International Mutual Assistance in Criminal Matters (IMAC), applies on a subsidiary basis (legal considerations, pp. 4-5).
In principle, an appeal is only possible against the final decision that concludes the mutual assistance proceedings (Art. 80e para. 1 IMAC).
A separate appeal against an interlocutory decision is only admissible in exceptional cases, particularly if it causes immediate and irreparable prejudice (Art. 80e para. 2 IMAC) (recital, pp. 5-6).
The presence of persons participating in foreign proceedings (agents, experts) during the execution of mutual assistance measures is an interlocutory decision that can only be challenged separately if it causes such prejudice (Art. 80e para. 2 let. b IMAC) (recital, p. 6).
According to the established case law of the Federal Supreme Court, the mere presence of foreign agents does not, as a general rule, cause immediate and irreparable prejudice.
Such prejudice is only recognized if there is a risk that secret information could be disclosed and used prematurely in the foreign proceedings, even before the decision on granting mutual assistance has become final (Art. 65a para. 3 IMAC) (recital, p. 7).
This risk is mitigated if the Swiss executing authority takes appropriate precautions.
The standard and sufficient measure consists of requiring foreign agents to provide a written undertaking not to use the information collected before the conclusion of the mutual assistance proceedings in Switzerland
Under the principle of trust between states, it must be presumed that this undertaking will be honored (recital, pp. 7-8).
Application to the specific case
The appellants challenge several interlocutory decisions, including the one authorizing the presence of the German agents.
For their appeal to be admissible at this stage, they must demonstrate the existence of immediate and irreparable prejudice (recital, p. 6).
The Court finds that the executing authority took the precautions required by case law.
The two German agents present, B. and C., signed declarations of guarantee in which they committed not to use the information obtained before the end of the proceedings.
These written guarantees are sufficient to rule out the risk of premature use of the information and, consequently, the existence of irreparable prejudice (recital, pp. 7-8).
The fact that agent C. was not specifically named in the initial decision authorizing the presence does not change this conclusion, as he also signed a declaration of guarantee.
Even the photographs that the appellants allege were taken by the German agents would be covered by this non-use undertaking (recital, p. 8).
As the appellants failed to demonstrate the existence of immediate and irreparable harm, the admissibility requirement for appeals against interlocutory decisions has not been met (recital, p. 8).
Outcome
The Appeals Chamber does not consider the appeal (Ruling 1).
The court costs, set at 3,000 CHF, are to be borne jointly and severally by the appellants (Ruling 2).