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Conditions for the commercialization of software specially designed for telecommunications equipment or systems in Switzerland?

 

 

The importation and marketing of technologies or software designed for telecommunications equipment or systems, in or from Switzerland, involves several legal aspects, tax law, copyright, and also other less known aspects.

Indeed, Switzerland has a law as of 13 December 1996 on the control of goods usable for civil and military purposes and specific military goods (LCB). There is also an ordinance from 25 June 1997 on the export, import and transit of goods usable for civil and military purposes and specific military goods (OCB). These provisions impose strict conditions.

This law applies to dual-use goods and specific military goods that are subject to international agreements. The Swiss Government determines which goods are covered by this law.

According to this law, the word “goods” includes products, technology and software. The term “dual-use goods” means goods that can be used for both civilian and military purposes. For the purposes of this Act, technology is defined as information not available to the public and not used for basic scientific research, which is necessary for the development, manufacture or use of items.

This law could apply, for example, to a system, which overcomes SSL encryption of online account services, and allows the collection of data from targets, the identification of target accounts, the automatic retrieval of archived messages, contacts and calendars.

The Swiss government can introduce licensing and reporting requirements for the use of, import, export, transit and brokerage of such goods. It may also order surveillance measures in respect of such items.

In this context, import permits shall be issued only for persons having their domicile, registered office or place of business in the Swiss customs territory or in a Swiss customs enclave. SECO (State Secretariat for Economic Affairs) may require company descriptions, order confirmations, sales contracts or invoices, and final declarations from the final recipient. Import permits are valid for two years.

Failure to comply with these conditions may be a criminal offence. For example, the transfer from Switzerland of technology or software to recipients abroad or the brokering of such technology or software, or failure to observe the conditions and charges laid down in a license is punishable by imprisonment or a fine of up to CHF 1 million or, in serious cases, by imprisonment for up to 10 years, and the custodial sentence may be accompanied by a fine of up to CHF 5 million.

It is therefore highly recommended that before taking any action in Switzerland in relation to software, it is advisable to be well informed about the provisions applicable to the case in question.

 

tianze.zhang@graduateinstitute.ch