“Crypto Affair”: export licence applications to remain suspended

In December 2019, the State Secretariat for Economic Affairs (SECO) suspended general export licences for encryption devices and filed a criminal complaint with the Office of the Attorney General against unknown person(s) for violations of the Goods Control Act in February 2020.

In June 2020, the Federal Council suspended various individual export licence applications submitted in January and February 2020 by Crypto International AG and TCG Legacy AG – formerly Crypto Group AG and now in liquidation – until the investigations by the Office of the Attorney General are completed. The Federal Council instructed SECO to inform the companies concerned accordingly. In July 2020, SECO issued rulings suspending the individual export licence applications. Another export licence application submitted by TCG Legacy AG after the Federal Council's decision was also temporarily suspended by the lower instance. The two companies lodged an appeal before the Federal Administrative Court (FAC) against the suspension decisions.

Suspension decision remains in force

The FAC dismisses the two appeals without entering into the substance of the case as far as the suspension of individual export licence applications submitted to the Federal Council in June 2020 is concerned. The court has concluded that the suspension decision is an "act of government" ("acte de gouvernement") based primarily on political considerations remaining in the responsibility of the government, which is why it is beyond judicial challenge. The FAC has also determined that international law does not grant any right to judicial review either, as the contested suspension decisions neither conclude the proceedings nor are intended to prejudice the main issue.

As the court dismisses the appeals concerning the individual export licence applications submitted to the Federal Council in June 2020 without entering into the substance of the case, the respective suspension decision remains in force. The examination of these individual export applications remains suspended until the Office of the Attorney General reaches its decision.

The court has come to a different conclusion regarding the individual export licence application filed after the decision of the Federal Council. As there is nothing in this decision to suggest that it would also cover future applications, the FAC has upheld the appeal and quashed the suspension decision in question.

These judgments may be appealed to the Federal Supreme Court.