TPF, 22.12.2025, RR.2025.83, RR.2025.84
Facts
The Cologne Public Prosecutor's Office (Germany) is conducting several criminal investigations into C., his spouse A., and other defendants, on suspicion of aggravated money laundering, aggravated tax fraud, professional gang fraud, and participation in a criminal organization. These investigations concern so-called "Cum/Ex" transactions, a financial scheme aimed at obtaining undue tax refunds.
In this context, the Cologne Public Prosecutor's Office submitted a request for mutual legal assistance to Switzerland, seeking the transmission of bank documents relating to accounts held at Bank D. by C., A., and the company B. AG (of which A. is the Chair of the Board of Directors). The Public Prosecutor's Office of the Canton of Grisons, responsible for execution, ordered the bank to produce the required documents and subsequently authorized their transmission to the German authorities in a final decision dated May 13, 2025.
A. and the company B. AG filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court, requesting that the transmission of the documents be refused.
Law
The Court reiterates that mutual legal assistance between Switzerland and Germany is primarily governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and its protocols, supplemented by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) for matters not otherwise addressed.
To grant legal assistance, the facts described in the request must be sufficient to examine the conditions for assistance, in particular the principle of dual criminality (the facts must be punishable in both Switzerland and Germany), the absence of a predominantly political or fiscal offense, and compliance with the principle of proportionality.
The Court refers to its established case law, confirmed by the Federal Supreme Court, according to which "Cum/Ex" schemes can be classified, prima facie, as professional fraud within the meaning ofArt. 146 para. 2 of the Swiss Criminal Code (SCC). As professional fraud is a felony, it constitutes a predicate offense to money laundering (Art. 305bis SCC).
Regarding the statute of limitations, the Court notes that the ECMA contains no provision establishing it as a ground for refusal. According to case law, this is a qualified silence, meaning that the statute of limitations under Swiss law is not an obstacle to legal assistance between states party to the ECMA.
Application to the specific case
The Appeals Chamber joins the two appeals for reasons of procedural economy and confirms the standing of the account holders to appeal.
It finds that the statement of facts in the request for legal assistance is sufficiently detailed and contains no manifest gaps or contradictions. The appellants' challenges regarding the veracity of the facts are deemed inadmissible, as it is not the role of the legal assistance authority to assess the evidence of the foreign proceedings.
The Court confirms that the condition of dual criminality is met. The facts described correspond to professional fraud (Art. 146 para. 2 SCC), which is a predicate offense to money laundering (Art. 305bis SCC). The question of whether A. had knowledge of the criminal origin of the funds is a matter of substance to be decided by the German judge.
The Court rejects the appellants' other arguments:
- The argument that mutual assistance regarding direct tax offenses is excluded is dismissed. The anti-fraud agreement between Switzerland and the EU is not applicable, and mutual assistance is based on the ECP.
- The statute of limitations defense is not applicable under the ECP.
- The challenge to the jurisdiction of the German authorities is rejected, as it does not appear to be manifestly arbitrary.
- A German court decision ruling that a prior search of C.'s home in Switzerland was illegal is irrelevant to the legality of the transfer of bank documents obtained through other means.
- The partial dismissal of one of the German proceedings against C. has no effect as long as the request for mutual assistance has not been withdrawn by the requesting authority.
The Court notes that all grievances raised have already been rejected in previous proceedings involving the same appellants.
Outcome
The Federal Criminal Court rejects the appeals to the extent that they are admissible. The court costs, set at 3,000 CHF for each appellant, are to be borne by them.
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