Administrative Sanctions under Swiss Law
Administrative sanctions are repressive or preventive measures pronounced by administrative authorities outside any criminal proceedings. They can take very diverse forms: fines, withdrawal of authorisations, professional bans, register entries. Under Swiss law, these sanctions must comply with strict constitutional principles, notably the legality, proportionality and right-to-be-heard principles. PBM Avocats defends individuals and companies subject to sanctions in Geneva and Lausanne.
Types of Administrative Sanctions in Switzerland
| Type of Sanction | Examples | Pronouncing Authority |
|---|---|---|
| Administrative fines | Tax, customs, traffic, planning offences | Tax authority, customs, police |
| Withdrawal of authorisations | Driving licence revocation, trading licence, operating permit | Competent cantonal services |
| Professional bans | Ban on exercising a regulated profession | Supervisory authorities (FINMA, etc.) |
| Register entries | Entry in debt enforcement register, bankruptcy register | Enforcement offices |
| Coercive measures | Seizures, establishment closures, destructions | Competent authorities |
Administrative Financial Sanctions: Fines and Surcharges
Administrative fines are financial sanctions pronounced by administrative authorities without criminal proceedings. They differ from criminal fines notably in that:
- They are pronounced by an administrative authority, not a criminal judge
- They do not in principle create a criminal record
- They are subject to control by administrative courts
- They may be pronounced directly against legal entities (companies)
The most frequent areas of administrative fines:
- Tax law: fines for tax evasion (FTA), contraventions of declaratory obligations
- Customs law: FOCBS fines for illegal importation of goods
- Traffic law: fixed penalty notices and heavy sanctions (RTA)
- Construction law: fines for works without authorisation
- Competition law (COMCO): sanctions potentially reaching millions
FINMA Sanctions in the Financial Sector
The FINMA (Swiss Financial Market Supervisory Authority) has extensive sanctioning powers over banks, insurers, asset managers and other financial actors under its supervision:
- Public reprimand
- Ban on exercising a supervised activity
- Withdrawal of operating authorisation
- Confiscation of illicit gains
- Publication of the decision (shaming measure)
The Proportionality Principle: Limits on Sanctions
Every administrative sanction must comply with the proportionality principle (art. 5 para. 2 Cst.) which comprises three sub-principles:
- Aptitude: the sanction must be suitable to achieve the intended purpose
- Necessity: the least severe sufficient sanction must be chosen
- Proportionality in the strict sense: the sanction must be proportionate to the gravity of the offence and the consequences for the sanctioned person
A disproportionate sanction may be reduced by the appellate court, even if the offence is established. It is important not to limit oneself to contesting the facts but also to discuss the severity of the sanction.
Appeal Remedies against Administrative Sanctions
- Internal objection: with the authority that pronounced the sanction (variable deadline)
- Appeal to the cantonal administrative court: deadline generally 30 days
- Appeal to the FAC: for federal sanctions (FINMA, customs, etc.)
- Appeal to the Federal Supreme Court: for questions of federal law
What is the difference between an administrative fine and a criminal fine?
An administrative fine is pronounced by an administrative authority (tax authority, supervisory authority, building enforcement) for a violation of an administrative rule. It does not create a criminal record. A criminal fine is pronounced by a criminal court for an offence under the Criminal Code or a criminal statute. Administrative fines are generally challenged before administrative courts, not criminal courts.
Does the proportionality principle apply to administrative sanctions?
Yes, the proportionality principle is fundamental in Swiss administrative law (art. 5 para. 2 Cst.). Every administrative sanction must be apt to achieve the intended purpose, necessary (the least restrictive possible), and proportionate to the gravity of the offence. A disproportionate sanction may be reduced on appeal, even if the offence is established.
Can an administrative sanction and a criminal sanction be combined for the same facts?
The accumulation of sanctions is in principle possible when the two proceedings pursue different purposes (administrative: protection of public order; criminal: punishment and deterrence). However, the ne bis in idem principle (art. 11 CPC, art. 4 Protocol 7 ECHR) may limit this accumulation if both sanctions are essentially criminal in nature. The ECHR case law has extended this principle to certain severe punitive administrative sanctions.
What is an administrative driving licence revocation?
The administrative driving licence revocation is a security measure pronounced by the cantonal road traffic authority (vehicle registry) in the event of a serious or repeated traffic violation. It differs from the criminal revocation pronounced by the criminal judge. The minimum duration is set by the RTA (one month for minor offences, three months for moderately serious offences). Appeal is possible before the cantonal court.
How can an administrative customs fine be challenged?
Decisions by the Federal Customs Administration (FOCBS) imposing fines may be challenged by objection to the FOCBS, then by appeal to the Federal Administrative Court (FAC) within 30 days. Customs fines can be significant (customs duty + interest + fines). A specialist lawyer is recommended for substantial amounts.