The four gold refineries in Switzerland are not required to reveal the origin of their precious metal. In a decision, the Federal Administrative Court (TAF) gave more weight to commercial secrecy than to the requirement for greater transparency.
In February 2018, the Society for Threatened Peoples (SPM) demanded from the Federal Customs Administration (AFD) the publication of the names of the gold suppliers of the four largest Swiss refineries for the period from 2014 to 2017. NGO invoked the federal law on the principle of transparency in the administration in force since 2004.
The SPM notably justified its request by the fact that it needed this information for the reports it was preparing on this topic. The organization also invoked the overriding public interest, deeming it important to know whether the imported gold is mined under decent and environmentally friendly conditions.
The AFD initially rejected the SPM’s request, then changed its mind after a mediation procedure conducted by the Federal Data Protection and Transparency Officer (FDPIC) and ordered the disclosure of the data. The refineries appealed this decision to the TAF.
“Protectable interest in maintaining secrecy”
In a judgment published Thursday, the TAF agreed with the refiners and admitted their appeals. AFD did not take a decision in accordance with the law. The information requested is part of the private sphere of gold importers, who have a private interest worthy of protection in keeping the secret.
In addition, the object in question is covered by tax secrecy, which gives it priority over the principle of transparency, can we read in the motivation of the judgment. Tax secrecy offers absolute protection to the information in question, regardless of the other purposes for which the data is collected and used. The previous instance incorrectly applied the exception rule.
SPM notes the TAF’s decision with great disappointment, it wrote in a statement, adding that transparency is the basis of clean and fair gold trading. For her, importers can now hide behind commercial secrecy and are not accountable to anyone for the origin of the raw material and the risks associated with it.
Insufficient control measures, according to the Society for Threatened Peoples
The numerous scandals of recent years prove, however, that the existing control measures are not enough, continues the SPM. Transparency on the origin of imported gold is necessary to independently verify that no dirty gold arrives in Switzerland. This is why the SPM requires in principle more transparency in business relations.
The Federal Council, for its part, is in favor of voluntary measures on the part of the gold mining sector and greater transparency, while recognizing that the import and export statistics available do not make it possible to clearly determine the origin of gold nor its production process. In March 2021, Parliament refused to pass such regulations when revising the Money Laundering Act.
Switzerland is the main hub of the international gold trade: two-thirds of the world’s precious metal is refined and processed there. The origin of gold and the conditions under which it was mined are not always clear.
The judgment of the TAF is not final and may be appealed to the Federal Court. SPM will “seriously consider” an appeal, its co-director Christoph Wiedmer told Keystone-ATS.
(Judgment 16.03.2022 concerning appeals A-741/2019, A-743/2019/A-745/2019 and A-746/2019)