The Official Journal of the European Union has published on February 17th, 2009 the Council Decision of December 18th 2008 the Cooperation Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests and the accompanying Final Act.

The objective of the Agreement is to extend administrative and mutual legal assistance in criminal matters between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, so as to combat the illegal activities.

Scope of the European Community and Swiss Confederation Agreement

The Contracting Parties will provide each other with mutual assistance to combat illegal activities to which this Agreement applies, in particular in preventing and detecting operations and other acts of commission and omission contrary to the relevant legislation and in conducting investigations relating thereto.

The Agreement will be applicable to the administrative and criminal prevention, detection, investigation, prosecution and repression of fraud and any other illegal activity to the detriment of the Contracting Parties’ respective financial interests concerning:

• Trade in goods contrary to customs and agricultural legislation.
• Trade contrary to tax legislation applicable to value added tax, special taxes on consumption and excise duties.
• The charging or retention of funds — including their use for purposes other than those for which they were initially granted — from the budget of the Contracting Parties or budgets managed by them or on their behalf, such as grants and refunds.
• Procedures for the award of contracts by the Contracting Parties.

The Agreement also covers the seizure and recovery of amounts due or wrongly received as a result of the previously referred illegal activities.

The scope of the Agreement includes the laundering of the proceeds of the activities covered by the Agreement provided that the activities which constitute the precursor offence are punishable under the law of the two Contracting Parties by a penalty involving deprivation of liberty or a detention order of a maximum period of more than six months.

Each Contracting Party will designate one or more central unit empowered to process requests for administrative assistance. These units shall call on all competent administrative authorities for the execution of the assistance requested. At the request of the authority of the requesting Contracting Party, the authority of the requested Contracting Party will as far as possible exercise surveillance over trade in goods in breach of the legislation. Such surveillance may relate to a person suspected on reasonable grounds of having participated or of participating in the commission of such illegal activities or having carried out preparatory acts with a view to the commission of such illegal activities, as well as to the premises, means of transport and goods connected with such activities.

Requests for banking and financial information

Where required conditions are met for adminission of letters rogatory for search or seizure, the requested Contracting Party will execute requests for assistance in obtaining and transmitting banking and financial information, including:

• The identification of, and information concerning, bank accounts opened at banks established in its territory and where persons under investigation are the account holders, authorised signatories or in effective control.
• The identification of, and all information concerning, banking transactions and operations conducted from, to or via one or more bank accounts or by specified persons during a specified period.

To the extent authorised by virtue of its law governing criminal proceedings for similar domestic cases, the requested Contracting Party may order surveillance of banking operations conducted from, to or via one or more bank accounts or by specified persons during a specified period, and transmission of the results to the requesting Contracting Party.

The decision to monitor transactions and transmit the results will be taken in each individual case by the competent authorities of the requested Contracting Party and will comply with that Contracting Party’s national law. The practical details regarding the monitoring will be determined by agreement between the competent authorities of the requesting and requested Contracting Parties.

In addition to the purposes of the assistance procedure for which it was supplied, information and evidence transmitted in the course of the assistance procedure may be used for the following purposes:

• In criminal proceedings in the requesting Contracting Party against other persons who participated in the commission of the offence for which assistance was given.
• Where the infringements on which the request is based constitute another offence for which assistance ought also to be given.
• In proceedings for the confiscation of the instrumentalities and proceeds of offences for which assistance ought to be given and in proceedings for damages in respect of infringements for which assistance had been given.

Cooperation between both parties is established on reciprocal basis. Therefore, the authority of the requested Contracting Party may refuse a request for cooperation where the requesting Contracting Party fails repeatedly to take action on a request for cooperation in similar cases.

This Agreement with the Swiss Confederation regarding fraud and some other illegal activities, comes just a few days after the adoption by the Commission of two new proposals for Directives aimed to improve mutual assistance by Member States, specially for tax evasion and fraud.