This is an automatic translation, which is why errors may occur
The business community supports the current revision of the CCP. In particular, it welcomes the fact that both the Council of States and the National Council recognize the importance of professional secrecy protection for in-house lawyers and approve such protection. The National Council took a big step towards the Council of States and rejected the Federal Council’s proposal and instead continued its deliberations on the basis of the Council of States’ version. In doing so, it made important adjustments that massively improve this important instrument in terms of its practicality.
The version adapted by the National Council on the basis of the work of the RK-S and the Council of States can be supported by the business community in the sense of a compromise. We therefore ask you to approve the version of the National Council without further adjustments.
The protection of professional secrecy serves to strengthen Swiss small, medium and large companies in international competition. Many countries, also from the EU, have recognized the importance of the introduction of professional secrecy protection and have been positioning themselves accordingly in the interest of their national companies for several years (e.g. Singapore, Germany, Spain). In addition, in October 2021, the OECD adopted a recommendation on transparency and procedural fairness in competition law enforcement. Paragraph 6
recommended that OECD members give special protection to confidential and privileged information and, in particular, ensure that competition authorities are adequately protected against unlawful disclosure of confidential information they possess. In addition, members should introduce or strengthen privileged communications, including in particular “legal privileges” such as professional secrecy protection for in-house counsel.
The need for the introduction of professional secrecy protection for in-house counsel or the right to refuse to cooperate for in-house counsel is undisputed in the councils. What is still open is the concrete form that this should take. The National Council has worked on the Council of States’ version with the aim of reaching a compromise. In doing so, it made important adjustments and, in particular, dispensed with the criterion of reciprocal rights. This is important for several reasons:
- Counter-right prevents the creation of an operating climate of trust and willingness to learn from mistakes
An important goal of professional secrecy protection is to create a climate of trust in companies and thus a willingness to point out mistakes and challenges in the company and to learn from them. This is done with the involvement of specialists from the legal departments. At the same time, however, an open communication culture requires trust in the protection of information. Information that would have to be released to foreign authorities is not shared openly. If, due to a reservation of rights to the contrary, such protection is only confirmed in the course of legal proceedings, the necessary culture of communication cannot develop
Only with a communication culture of openness, however, can the internal compliance of Swiss companies be strengthened. Finally, such strengthening is not only in the interest of the companies and their employees, but also of the general public.
- Counter-law opens the door to circumventing the protection of secrets If a court abroad comes to the conclusion that a foreign law was enacted for the sole purpose of preventing foreign authorities from accessing documents in evidence-gathering proceedings, such a provision regularly turns out to be useless. In addition, the provision according to which the right to refuse to testify should only apply if the opposing party also has a comparable right to refuse to testify at its seat or domicile is out of practice in times of multinational civil proceedings[1]. In practical implementation, the reservation of the counter right would precisely not protect Swiss companies in international civil proceedings, which would result in great legal uncertainty for the company concerned in each individual case.
We therefore ask you to support the version of the National Council for Art. 167a E-ZPO. Since the Council of States has already deviated from the Federal Council’s version, this version now represents a compromise between the Councils. By adopting the solution of the Council of States together with the adaptations of the National Council, you are opting for a solution that is “safer” in practice as well as easier and clearer to implement.
Download statement[pdf]
[1] See the NZZ-Online article of May 28, 2021 by the legal service manager of Georg Fischer AG, Marc. A. Lahusen, Attorney-at-Law, Group General Counsel, in the Appendix
