Federal court case law 1st quarter 2022

Admissibility of an expropriation This case concerned the complaint of a landowner whose land was expropriated for the expansion of the Tüfentobel landfill site (operated by the City of St. Gallen). The Federal Supreme Court held that the need for landfill sites had been identified in accordance with the provisions of the Environmental Protection Act and that there was therefore a public interest in the expropriation (E. 3.). Furthermore, the federal government or the canton could transfer the right of expropriation to third parties. Such a transfer would enable the City of St. Gallen to carry out such expropriations outside of its municipal territory. It is not ruled out that a political municipality may have to carry out public tasks outside of its municipal territory (E. 4.).

Property gains tax of the Canton of Zurich, tax period 2012 This case concerned a "real estate asset swap" in which the entire property portfolio of a pension fund was transferred to the Zurich Investment Foundation. The tax office of the City of Zurich rejected the deferral of the real estate gains tax. The Administrative Court overturned this decision and deferred the property gains tax. The Federal Supreme Court confirmed this decision. In particular, it is worth mentioning that the tax deferral provision of Art. 80 para. 4 BVG ("apportionment") applies to the present constellation.

Disability insurance (disability pension; disability income) The Federal Supreme Court does not consider it appropriate to change its previous case law on determining the degree of disability on the basis of the LSE salary tables. There are no serious objective reasons for a change in practice.

Extradition to the Republic of Armenia An extradition decision by the Federal Criminal Court is cancelled by the Federal Supreme Court. According to the Federal Supreme Court, healthcare in Armenian prisons is currently not sufficiently guaranteed. Under these circumstances, it cannot be sufficient for the Armenian authorities to give assurances that medical care will be provided in the respective medical service departments of the penal institutions, in the prison hospital or, if necessary, in medical facilities run by the health authorities (E. 4.6.).

Entry in the civil status register of births abroad (surrogacy) A married couple had twins born by a surrogate mother in Georgia. The sperm was donated by the husband and the egg by the wife. There was therefore no biological relationship between the twins and the surrogate mother. In Switzerland, the couple wanted to have the twins entered in the civil register as their children. According to the Federal Supreme Court, Swiss law applies in such a case, which does not permit surrogacy (in particular E. 6.4.). The legal mother is therefore the Georgian surrogate mother, as she "gave birth" to the children. The husband can recognise the children (E. 7). However, Swiss law does not recognise maternity. The wife must adopt the twins if she wishes to become their legal mother (E. 8.5.).

Public personnel law (termination of public employment) An SBB employee was dismissed during his probationary period. The employee contested the termination. It was disputed whether the probationary period had been extended in the event of illness in accordance with clause 22 CLA or had already expired when the notice of termination was issued. According to the Federal Supreme Court, the probationary period was extended by the number of sick days. This was because the CLA did not contain any explicit rules in this regard and therefore Art. 335b para. 3 CO applied on a subsidiary basis (E. 5.2.3.2).

Principle of public access, request for access to archived files This was about the right to inspect files archived in the Federal Archives. These are subject to certain retention periods. However, exceptions apply to persons of contemporary history. The Federal Supreme Court therefore draws on its case law from the right of personality under the Swiss Civil Code and decides that an asylum seeker whose case was discussed in the media is a "relatively well-known personality" (not a relative or absolute person of contemporary history), which leads to a balancing of interests between inspection on the one hand and the protection of personal integrity on the other (Art. 13 and 18 VBGA).

Share purchase agreement; international jurisdiction, jurisdiction agreement, Art. 3 IPRG In particular, a company demanded the remaining purchase price from a share purchase agreement from a company organised under the law of the United Arab Emirates. The company relied on a jurisdiction agreement. However, according to the lower court, this jurisdiction agreement had not been signed by persons authorised to represent the company, which is why the lower court denied its jurisdiction. In response, the plaintiff company argued that the lower court could also have relied on the emergency jurisdiction pursuant to Art. 3 IPRG (E. 5.2.2.3.). However, this was denied with the argument that emergency jurisdiction within the meaning of Art. 3 PILA could not be established by the fact that the contracting parties had failed to conclude a valid jurisdiction agreement if they had been able to do so - as in casu. Furthermore, the invalidity of a jurisdiction agreement does not automatically mean that there is a legal protection waiting period covered by Art. 3 PILA, especially since the plaintiff did not sufficiently demonstrate Art. 3 PILA before the lower court. The appellant should have (possibly) already submitted Art. 3 PILA before the lower instance (E. 5.2.2.3.).

Accident insurance (reduction in benefits; revision) This case concerned the question of whether the Administrative Court of Bern violated the law by leaving the appellant's pension at a degree of disability of 55% and confirming the reduction in benefits of 20% and the refusal of a helplessness allowance. With regard to the degree of disability, the Federal Supreme Court clarified the question of whether the characteristic "age" can justify a deduction in the table salary (E. 3.6.). According to the Federal Supreme Court, the lower court had not violated federal law by denying the requirements for a deduction from the table salary (E. 3.7.). With regard to the reduction of benefits, the Federal Supreme Court stated that a reduction does not require a crime or offence, but merely gross negligence (in this case a motorbike accident). However, the relevant requirements for reconsideration were not met (E. 5.5.5.). Finally, the Federal Supreme Court denied the claim for helplessness compensation (E. 8.4.).

Unsealing This case concerned the unsealing of IT devices. An unsealing decision of the Federal Criminal Court was contested. The Federal Supreme Court stated that the Federal Criminal Court had previously followed its own practice (E. 2.4.). The Federal Supreme Court declares this practice to be unlawful (E. 2.5.). In particular, the Federal Supreme Court points out that it must be ensured that the investigating authority is in no way involved in the unsealing and mirroring as a real act and is not given the opportunity to access the files stored on the seized devices until the unsealing decision is made, nor does it have any authority to issue instructions to the authorised organisation or person (E. 2.6.). In the present case, the procedural error was so serious that the data on the electronic devices could no longer be utilised (E. 4.2.).

Robbery, attempted grievous bodily harm; charging principle The Federal Supreme Court commented on the legal qualification of robbery (E. 1.2., 1.5. f.). A violation of the accusation principle was first raised: the subjective elements of the offence were insufficiently described in the indictment. According to the Federal Supreme Court, however, with regard to the elements of intent, a reference to the statutory offence following the description of the facts of the case is generally sufficient as a sufficient description of the subjective characteristics if the offence in question can only be committed intentionally. The description of the objective facts of the offence is sufficient if it reveals the circumstances from which it can be inferred that there was intent (E. 1.4.3.). In the second part of the judgement, the Federal Supreme Court addressed the issue of attempted grievous bodily harm, whereby a violation of the accusation principle was again at issue (E. 2.). In the indictment, the defendant was accused of having accepted to "seriously injure" his victim. The Federal Supreme Court did not accept this (E. 2.5.). "Serious" was not to be equated with grievous bodily harm within the meaning of Art. 122 StGB. Accordingly, the accusation principle was violated on this point (E. 2.5.2., 2.5.5.). Finally, the Federal Supreme Court commented on the consequences of this violation and whether the case could be dismissed for the purpose of extending the indictment. This was possible, as one defendant had already requested the correction of the indictment in both the first and second instance and his request had not been dealt with correctly to date (E. 2.6., in particular 2.6.8.).

Pursuant to Art. 271 para. 1 SchKG, the creditor can have the debtor's assets located in Switzerland seized for a claim that is not covered by a pledge. For the execution of the attachment order, Art. 275 SchKG refers to the analogous application of Art. 91-109 SchKG on attachment. However, no mention is made of Art. 89 DEBA, which instructs the debt enforcement office to execute the attachment immediately or to have it executed by the debt enforcement office at the place where the property to be attached is located. This means that there is no provision that clearly stipulates the execution of the attachment by way of legal assistance in accordance with the attachment regulations (E. 3.2.). The Federal Supreme Court came to the conclusion that a uniform enforcement area with a Switzerland-wide attachment includes an execution of the attachment coordinated by the debt enforcement office in analogous application of Art. 89 SchKG (E. 3.4.4.).

Employment contract; bonus This case concerned the qualification of "variable salary" agreed in the employment contract. As the term "bonus" is not defined in the Swiss Code of Obligations, it must be examined on a case-by-case basis whether an agreed bonus is to be qualified as a gratuity within the meaning of Art. 322d CO or as part of the salary within the meaning of Art. 322 CO. According to the case law of the Federal Supreme Court, a distinction must be made between three situations; a bonus can be: (1) a variable salary, (2) a bonus to which the employee is entitled and (3) a bonus to which the employee is not entitled (E. 3.1.). The Federal Supreme Court commented on the different legal consequences of the qualifications (E. 3.1.1. et seq.) and then confirmed the opinion of the lower court via the interpretation of the contract that the agreed "variable salary" was actually a non-genuine bonus (2) (E. 3.3.2., 3.3.4., 3.4.). Consequently, a bonus was in principle owed (E. 3.4., 3.1.2.1.). It is also interesting to note that the Federal Supreme Court qualifies the cancellation due to lack of purpose pursuant to Art. 242 ZPO as a final decision within the meaning of Art. 308 para. 1 lit. a ZPO, which is subject to appeal if the amount in dispute pursuant to Art. 308 para. 2 ZPO is reached. If the amount in dispute is not reached, it is subject to appeal as a final decision pursuant to Art. 319 lit. a ZPO (E. 6.5.).

Loss of earnings compensation for employees and maternity (Covid-19) The complainant applied for compensation for loss of earnings as a self-employed physiotherapist. The application was rejected. In this case, the question arose intertemporally as to which regulation was applicable. The Federal Supreme Court explained the applicable principles, in particular with regard to permanent circumstances (E. 3.2.1.) and concluded that the lower court had applied the correct ordinance (E. 3.2.2.). Subsequently, the term "current tax assessment" was to be interpreted in accordance with Art. 2 para. 3bis in conjunction with Art. 5 para. 2 second sentence of the Covid-19 Ordinance Loss of Earnings. The Federal Supreme Court came to the conclusion that the term "current tax assessment" refers to the year 2019 (E. 5.3.).

Multiple qualified robberies (particularly dangerous offences), outpatient measure to accompany the sentence A robbed an elderly couple and, at a later date, a goldsmith's workshop. In both cases, he bound, gagged and threatened his victims. It was disputed whether the incidents each constituted simple or aggravated robbery. The Federal Supreme Court confirmed that both cases constituted aggravated robbery within the meaning of Art. 140 no. 3 para. 3 SCC (E. 2.). The Federal Supreme Court did not accept an arbitrary sentencing (E. 3.). However, the cantonal court had violated the prohibition of aggravation by ordering an outpatient measure, although the criminal court had decided not to order such a measure. The cantonal court thus violated Art. 391 para. 2 of the Code of Criminal Procedure and the outpatient measure ordered was cancelled (E. 4., 5.).

Distribution of legal costs B AG was operated by A AG. As a result, B AG made a legal proposal and filed an action for a declaratory judgement in which it requested a declaration that the amount claimed was not owed. The request for a declaratory judgement was not granted as there was no interest in legal protection. B AG was ordered to pay 4/5 of the court costs and A AG 1/5. The court costs charged to A AG were justified on the grounds that although it had won the application for non-intervention, it had lost several procedural applications (E. 2.). A AG lodged an appeal against this with the Federal Supreme Court.

Matrimonial protection, division of jurisdiction between matrimonial protection court and divorce court The Federal Supreme Court ruled that the matrimonial protection court must take into account facts that only occurred after the divorce proceedings were initiated, but which were brought before the matrimonial protection court in due form and time (E. 4.5.).

Daily sickness benefits, Art. 40 VVG In principle, the insurer bears the burden of proof for facts that are intended to prove a fraudulent justification of the insurance claim (E.3.3.). With regard to the standard of proof, the Federal Supreme Court held that the standard of proof of preponderance of probability presupposes a lack of evidence. With regard to the subjective intention to deceive, such a need exists (i.e. preponderance of probability). In contrast, there is no general lack of evidence (i.e. strict standard of proof) when proving the objective requirement of the presentation of untruthful facts (E. 3.4.3.).

Modification of child maintenance, passive legitimisation In its previous case law, the Federal Supreme Court assumed that the public authority that advances maintenance contributions must be included as a party with passive legitimacy in a modification process (see BGE 143 III 177). The Federal Supreme Court is now changing this practice. In future, only the maintenance debtor and the child will be parties to an action for modification, irrespective of whether and from when the maintenance contributions are advanced by the local authority (E. 6.7.).

Robbery etc.; scope of the appeal If it is requested in the statement of appeal that all convictions be set aside, but at the same time individual convictions are specified in the statement, the remaining points are deemed not to be contested (E. 2.5.). The Federal Supreme Court also commented on the right to attend hearings. The appellant should have expressly requested a repetition of the disputed questioning in the appeal proceedings at the latest. It assumes a waiver (E. 4.2.3., 4.4.2.). The next issue was the usability of a forensic report prepared by the police. The complainant alleged a violation of the right to be heard. However, the Federal Supreme Court argued that any violation of the right to be heard had been cured by the fact that the accused did not comment on the expert opinion after inspecting the files and had thus waived his right to be heard (E. 5.5.2.). Finally, the Federal Supreme Court commented on the violation of the prohibition of acceleration (2015 indictment), but dismissed the appeal because it was not sufficiently substantiated (E. 9.).

Unemployment insurance (unemployment benefit) A was refused unemployment benefit as a "genuine cross-border commuter". The question was whether A fulfilled the eligibility requirements of "living in Switzerland" pursuant to Art. 8 para. 1 lit. c AVIG. According to the Federal Supreme Court, to fulfil the eligibility requirement of residence under Art. 8 para. 1 lit. c AVIG, it is sufficient to have an actual or "habitual" residence in Switzerland with the intention of maintaining this residence for a certain period of time and to have the main focus of one's life here during this time (E. 4.3.). The Federal Supreme Court also comments on the distinction between genuine and non-genuine cross-border commuters (E. 5.3.).

Jurisdiction, place of fulfilment pursuant to Art. 5 No. 1 Lugano Convention The case concerned a dispute between a Swiss AG and a company in the Netherlands. The Dutch company claimed an amount from a contract in Switzerland. The question arose as to the local place of jurisdiction pursuant to Art. 5 No. 1 Lugano Convention. The connecting factor is the place of delivery. This is determined by the contract, subsidiarily by the actual place of delivery or is to be determined subsubsidiarily "in another way" (E. 4.2.). The Federal Supreme Court then applied this principle to the present case (E. 4.3.). The place of fulfilment was at the place of collection of the purchased goods in Switzerland, which established a place of jurisdiction in accordance with Art. 5 No. 1 Lugano Convention.