SEM decision on whether or not to open proceedings
The SEM will examine the cases in which the air carrier has failed to transmit API/the necessary personal data on time, or has transmitted incomplete or incorrect data, and might therefore have violated its duty to provide data. The SEM will determine whether or not the severity of the violation(s) of the duty to provide data justifies the opening of proceedings.
If proceedings are opened against an air carrier, they will be conducted in one of Switzerland's official languages (German, French or Italian) exclusively. This therefore rules out proceedings being conducted in English.
Response from the air carrier
The air carrier concerned will be sent a letter notifying it that administrative proceedings have been opened on the grounds of a violation of its duty to provide data. The carrier may respond to the allegation within a set period and offer evidence that it has not violated its duty.
If the air carrier is able to prove that transmission was impossible in an isolated case for technical reasons for which it was not responsible, or that it has taken all necessary and reasonable organisational precautions to prevent a violation of its duty to provide data, the proceedings will be suspended. However, if the carrier is unable to provide this proof, the SEM will issue a sanction ruling against it.
Sanction rulings against air carriers are subject to appeal (Art. 44 APA).
The appeal must be lodged with the Federal Administrative Court within 30 days of publication of the ruling (Arts. 50 and 47 APA).
Enforcement (Arts. 39–40 APA)
The SEM is responsible for enforcing the rulings it issues, and the decisions of the competent courts in the event of an appeal.
Judgment of 31.01.2017 in the appeal case A-1679/2016
The procedure is governed by the Federal Act on Administrative Procedure (APA; SR 172.021). In principle the authority is required to investigate the facts here, as under administrative criminal law, but the principle of ex-officio investigation is qualified by the parties’ duty to cooperate. The standard of proof is less strict and it is sufficient that the authority is persuaded that a fact is true, even if there is no absolute certainty. In certain circumstances, there is a legal presumption that the duty to provide data has been violated. Culpability does not constitute an independent element of the offence (E.4.3.2. and E.4.3.3).
The sanctions provided for in Art. 122b of the Foreign Nationals and Integration Act (FNIA) are primarily intended as a deterrent. An airline should only be required to pay if it repeatedly violates the duty of care or the duty to provide data in a similar way, or if an individual infringement is particularly serious (E.4.3.4). In cases that cannot be considered minor, unless they prove that they were not at fault, airlines are ordered to pay a mandatory flat-rate sum of CHF 4,000 for normal cases, or CHF 12,000 for serious cases. These amounts are payable for each individual flight for which there is a failure to provide data. A decision not to open proceedings or not to impose a sanction is only possible in minor cases (E.4.4.1). There are two types of minor case: the first is a scenario where it is probable that no sanction will be imposed because it is likely that exculpatory evidence can be successfully provided; in the second, the sanction is waived because the nature of the violation or violations of the duty to provide data make the sanction appear unnecessary in view of its intended deterrent effect, both with regard to the airline that has violated the duty to report passenger data and with regard to the other air carriers subject to the duty to report passenger data . A ‘case’ can also involve several flights. The question of whether a case is minor, normal and not minor, or serious must therefore be answered on the basis of an overall assessment. Depending on the answer, the sanction must either be waived, or a sanction of CHF 4,000 or CHF 12,000 must be imposed for each flight in the case (E.4.4.2).
The API data must be transmitted within a few minutes of departure, regardless of the duration of the flight (E.4.4.5). If the data do not comply with the API interface specifications, in accordance with Art. 122b para. 2 FNIA they must be classified as inaccurate (E.4.4.7).
The Federal Administrative Court did not address the question of whether the sanction under Art. 122b FNIA should be regarded as a form of criminal charge under Art. 6 para. 1 ECHR (E.4.4.4).
Judgment of 27.04.2020 in the appeal case A-1384/2019
The duty to provide data serves no purpose if the content of the API data records is defective. Defective passenger data also make automated processing impossible or lead to incorrect search results, so that simpler and quicker border checks and the efficient use of limited human resources are made impossible. As a consequence, any data package that fails to meet the formal requirements of the API interface specifications or includes incorrect passenger data, even in the most minor respects, is deemed to be inaccurate in terms of Art. 122b para. 2 FNIA (E.4.3).
When the situation is considered in its entirety, it seems appropriate to not to consider as ‘minor cases’ individual flights, which, when considered on their own, do not entirely frustrate the purpose of the duty to provide data a priori, and to impose a sanction of CHF 4,000.- per flight (E.5.5; confirmation of the case law).
According to the case law of the European Court of Human Rights, Art. 122b para. 1 FNIA has a ‘criminal-provision’ character, with the result that Art. 6 ECHR applies (E.7.2.2). Statutory presumptions of fact and of law may be permitted under national law provided they are not understood as absolute, serve a legitimate purpose, remain within sensible limits and still permit the court to appraise the evidence gathered. The importance of the case and the safe-guarding of rights to a proper defence must also be taken into account. The accused must always be given an appropriate opportunity to present counter-evidence (E.7.3.2). The ‘offence’ set out in Art. 122b para. 2 FNIA contains both the basis for a presumption (data pursuant to Art. 104 para. 3 FNIA not transmitted on time, incomplete or inaccurate) and a consequence of the presumption in the form of a legal presumption (a violation of the duty to provide data). The airlines are however entitled to offer counter-evidence with regard to the basis for the presumption or, if applicable, counter-evidence with regard to the legal presumption (see Art. 122b para. 3 lit. a and b FNIA). As a result, this is (simply) a case of shifting the burden of proof. Shifting the burden of proof and placing it on the airlines seems reasonable. The legal presumption has a permitted objective in that it broadly counteracts the threat of a lack of evidence and thus enables Switzerland to meet its international obligations effectively. Because the airlines can lead evidence to counter it, the legal presumption also falls within reasonable limits (E.7.7.3).
As a consequence of its duty to provide the data laid down in Art. 104 FNIA, the airline is responsible for checking the data to ensure they are accurate and correcting the data if necessary, insofar as it arranges for the API data to be recorded by third parties such as passengers. If it fails to do this, it will be held responsible for the faulty recording of the data unless it can prove that it was not at fault in accordance with Art. 122b para. 3 FNIA (E.7.3.4).
Last modification 02.03.2021