61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

trade, and it was therefore unable – even during the Second World War – to
regulate the trade in securities from occupied areas. Based on its emergency
powers, however, the Federal Council could have adopted special provisions to
protect the owners of securities expropriated by the German occupying powers
– yet it failed to take this step primarily, one assumes, for foreign policy reasons,
but also due to the opposition to such a move from the banks and stock
exchanges. 97
At the level of private (autonomous) stock exchange rules (e.g., commercial
practices, regulations, etc.), the absence of legal precautionary and preventive
measures was partially offset by the introduction of the «affidavit». From
December 1940, official stock exchange trade in Dutch, French, Polish, Danish
and Norwegian titles was only permitted for securities accompanied by an
affidavit testifying that since 2 September 1939, they had been owned continuously
by Swiss citizens domiciled in Switzerland or by legal persons or
companies based in Switzerland. 98 An affidavit was only required for trade on
the stock exchange, however: outside the stock exchange, titles could also
change hands without the affidavit confirming Swiss ownership. Later,
securities were also traded on the stock exchange with «Affidavit L1», which
merely confirmed Swiss ownership from 1 June 1944. Furthermore, from 1943,
shares in Royal Dutch could be traded on the stock market without an affidavit
confirming their origin. 99 By acquiring these shares, the purchaser accepted a
particularly substantial risk, for in view of the considerable difference in price
between titles with and without an affidavit, he could not be acting in good
faith and therefore had to reckon with the restitution of the title to its rightful
owner. 100
The widespread forgery of affidavits carried out in 1941 by Swiss companies was
problematical in terms of criminal law. 101 Under the Federal Criminal Code
which came into force on 1 January 1942 and replaced the cantonal criminal
codes, this was deemed to constitute the forgery of certificates or false certification
(Article 251) and even fraud (Article 148). However, when the Criminal
Code was introduced, theory and practice had not yet been fully developed. 102
It was only with the Decree on Looted Assets of 10 December 1945 that intervention
in the private-law framework for the trade in securities started taking
place: this time-limited emergency legislation created the legal basis for the
restitution of stolen and confiscated securities which had found their way to
Switzerland during the Second World War. 103
«Unclaimed assets»
The legal treatment of «unclaimed assets» owned by Nazi victims shows clear
parallels with the legal practice applied in respect of looted cultural assets and
407