23 July 2013 – On 11 January 2013, an employee of a Swiss bank obtained an ex-parte interim measure prohibiting the transfer of personal data to US authorities. The interim measure was confirmed by the Geneva Court of First Instance on 21 June 2013.

The background of this litigation is the tax dispute between the USA and Swiss banks. In this regard, the Swiss Federal Council gave various banks an authorisation to cooperate with US authorities to resolve their tax dispute, which includes an exemption from art. 271 of the Swiss Criminal Code for the transfer of requested data to US authorities. However, authorised banks still have to comply with other applicable Swiss law, in particular data protection and employment law provisions.

The Geneva Court of First Instance stated that a cross-border disclosure of employee data to foreign authorities is only permitted if the requirements of art. 328b Swiss Code of Obligations and of the Federal Act on Data Protection (DPA) are met. In the present case, only an overriding public interest could be a valid justification for the transfer of the employee’s data to the US authorities.

The Geneva Court of First Instance considered that the stability of Switzerland as a financial centre may constitute an overriding public interest. Nonetheless, the bank has to balance the interests of the concerned employee and the public interest in each individual case. In the present case, the bank only made general statements about the necessity of data transfers to US authorities, but did not furnish prima facie evidence that the transfer of this specific employee’s data was compulsory.

In contrast, the employee credibly showed the threat of a possible prosecution by US authorities. Therefore, the Geneva Court of First Instance prohibited the data transfer. The decision can be appealed within a period of ten days from notification.