Federal court case law 1st quarter 2023

In this case, the Federal Supreme Court ruled on an appeal against the Administrative Court of the Canton of Zug. On the one hand, the appellant is demanding reimbursement of the personal contributions provisionally paid plus interest to the compensation office and, on the other, compensation of CHF 6,000. The Federal Supreme Court clarified whether and, if so, from what point in time excess payments on account are to be regarded as "overpaid contributions" within the meaning of Art. 16 para. 3 AHVG and deduced that the forfeiture periods of Art. 16 para. 3 AHVG for the corresponding claim for reimbursement begin to run with the definitive determination of contributions (E.4.5.3).

As an employer with a permanent establishment in Switzerland, the Dutch company Uber B.V. must pay AHV contributions for 2014 for drivers of UberX, UberBlack and UberVan. The same applies to Rasier Operations B.V. with regard to UberPop drivers. Both companies are obliged to provide the compensation fund of the Canton of Zurich with information on the wages paid.

As an employer with a permanent establishment in Switzerland, the Dutch company Uber B.V. must pay AHV contributions for 2014 for drivers of UberX, UberBlack and UberVan. The same applies to Rasier Operations B.V. with regard to UberPop drivers. Both companies are obliged to provide the compensation fund of the Canton of Zurich with information on the wages paid.

This case concerned so-called "flottante" persons for whom the obligation to provide support is not clear. It was discussed whether there was a legal loophole in the ZUG in this respect. The Federal Supreme Court denied this (E. 7.2.2. et seq.). If the municipality in which the hospital is located, i.e. the PG Münsterlingen as the place of residence, is responsible for the cost reimbursement regarding Respondent 1 (mother), the lower court rightly assumed that for Respondent 2 (child), due to the lack of one of the cases listed in Art. 7 para. 1 to 3 lit. c ZUG, namely the lack of (support) residence of respondent 1, the catch-all provision of Art. 7 para. 3 lit. d ZUG (place of residence) applies (E. 7.2.4.).

The complainants renovated a farmhouse. The main question was whether they could deduct the costs incurred for the renovation from their taxable income as maintenance costs in accordance with Art. 32 para. 2 DBG. In this judgement, the Federal Supreme Court introduces a change in practice. According to the intention of the legislator, for all work on a newly acquired property - as with all other property costs (see E. 4.1) - it must be clarified individually on the basis of their objective-technical nature - and with the co-operation of the taxpayer (Art. 126 para. 1 and 2 DBG) - whether they serve to restore the property to its previous condition, i.e. whether they have a value-preserving effect. If this cannot be determined, it must be assumed in the area of income tax in accordance with the norm theory (Art. 8 ZGB analogously) at the expense of the taxpayer that the costs do not serve to restore the property and therefore cannot be deducted. (E. 4.6.).

The Federal Supreme Court confirms the very limited right of appeal against rejected requests for evidence in preliminary proceedings. In this case, the appellant requested a new forensic expert opinion. He feared an actual disadvantage as the expert opinion was not in his favour. The Federal Supreme Court dismissed the appeal. A legal disadvantage would have been necessary (E. 3.3., 3.5.).

In this judgement, the Federal Supreme Court deals with a road traffic offence from Aargau. The judgement becomes the leading judgement due to two sub-areas. On the one hand, the Federal Supreme Court comments on SVG checks in the border area between Switzerland and Germany (E.1). On the other hand, the FSC discusses the conformity of video surveillance with the FADP and the criminal law usability of the recordings in question (E.2), an extremely topical issue. With regard to the data protection component, the complainant argues that the video surveillance in the car park in question, for which he was ultimately convicted, would be unusable under Art. 141 para. 4 of the Code of Criminal Procedure. In particular, the recording in a private car park should not be used to investigate traffic offences on public roads outside the airport's sphere of influence. He based his argument on Art. 4 para. 4 FADP, according to which such a purpose of the personal data obtained in the car park was not recognisable to him (E.2.1). The Federal Supreme Court states that the parking ticket, the parking regulations and the car park's website all make reference to the fact that the recordings are used to prevent and investigate unlawful acts and are made available to the law enforcement authorities (E.2.2). Whether this fulfils the requirements of Art. 4 para. 4 FADP is left open by the FSC. Nevertheless, the private interests of the car park in terms of security would prevail, which is why the recordings were lawfully collected and could be used in criminal proceedings (E. 2.4.1.f.).

In the present case, it was disputed whether an association should be subject to the Suva insurance obligation. The purpose of the association A., section Z., is to safeguard the rights and interests of its members in road traffic and in all areas relating to transport policy, the economy and mobility. According to Art. 66 para. 1 lit. f UVG in conjunction with Art. 77 lit. f UVV. Art. 77 lit. f UVV, employees of companies that store, clean, repair or provide motor vehicles must be insured with Suva (E.3.1.f.). In the present case, it is disputed and must be examined whether the complainant is an organised or an unorganised company. Furthermore, the appellant denies that it carries out an activity that leads to compulsory insurance of its employees with Suva (E.5.). The BGer dismissed the appeal and confirmed the subordination of the appellant's employees to Suva on the grounds that, although it is a structured business, the auxiliary and ancillary businesses are objectively connected to the main business in accordance with Art. 88 para. 1 UVV (E.5.2.3.). Due to the insurance obligation of the main business, the entire business is subject to the insurance obligation (E.5.2.3.).

A hospital reported an independent doctor (complainant) to the supervisory commission because she had treated a patient improperly. The Canton of Geneva then imposed a fine (Art. 43 para. 1 lit. a MedBG). The cantonal authorities largely relied on the hospital's statement of facts, as the patient did not want to release the doctor from medical confidentiality (Art. 321 para. 1 StGB) and the doctor had not submitted a corresponding application to the supervisory authority (Art. 321 para. 2 StGB) despite repeated requests to do so. In material terms, it can be left open whether doctors can invoke medical confidentiality in disciplinary proceedings at all. In any case, the complainant should have asked the competent authority to release her from medical confidentiality. In administrative proceedings, the parties are obliged to co-operate in the investigation of the facts (Art. 22 LPA/GE [RS/GE E 5 10]).

In the context of the implementation of social health insurance, a public task of the Confederation is fulfilled and the implementing body is subject to stricter data protection rules than companies without such a function. Notwithstanding the joint organisation of Avenir Assurance Maladie SA and Mutuel Assurances SA, which are separate legal entities, the latter is a third party within the meaning of Art. 84a para. 5 KVG vis-à-vis the former. If the conduct of a social health insurer is in question, the characteristics of the organisation of the health insurer must be taken into account, which must be compatible with the legal data protection regime to which it is subject as a federal body within the meaning of Art. 3 lit. 5 FADP. Personal data can only be passed on with the consent of the person concerned, which is not given in the present case. The supervisory authority requires social health insurers to select and set up separate data processing channels if the use of the same personal data flows for compulsory health insurance and for insurance under the VVG harbours a potential for abuse.

A gynaecologist in Geneva removed a patient's uterus following a misdiagnosis. The patient reported the doctor to the supervisory commission, whereupon the canton of Geneva imposed a three-month ban on practising. The gynaecologist lodged an appeal under public law. Federal law conclusively regulates the professional duties of persons who practise a university medical profession under their own professional responsibility (Art. 40 MedBG). Cantonal provisions are compatible with the principle of the primacy of federal law (Art. 49 para. 1 BV) insofar as they specify or concretise the duties under Art. 40 MedBG. This applies in particular to the general clauses concerning the diligent and conscientious practice of the medical professions (Art. 40 lit. a MedBG) and the safeguarding of patients' rights (Art. 40 lit. c MedBG). In this respect, Geneva law must be taken into account insofar as it expresses generally recognised rules and principles in Switzerland.

The Geneva Cour de justice has ruled that a taxpayer can deduct legal fees for the enforcement of maintenance claims from her taxable income. The Federal Tax Administration lodged an appeal in matters of public law. Post-marital maintenance payments received as well as child maintenance are subject to income tax (Art. 23 lit. f DBG). The expenses required to generate taxable income (production costs) can be deducted from this income (Art. 25 DBG). This is a general principle that also applies to those types of income for which this is not expressly regulated by law. However, a "qualified close connection" between the expenses incurred and the income earned is required. In the case of legal fees, the Federal Supreme Court has never yet affirmed the existence of such a connection. There is also no sufficient connection between maintenance income and legal fees. This is particularly the case because divorce proceedings regularly involve non-financial claims or financial claims that do not constitute taxable income (e.g. matrimonial property disputes) in addition to maintenance payments. It is impossible to clearly separate out the part of the legal fees relating to the maintenance claim. In addition, maintenance debtors cannot deduct their legal fees - the judgement of the lower court would have resulted in unequal treatment of the (former) spouses.

A popular initiative in Geneva is calling for an amendment to the cantonal law on development zones (LGZD/GE [RSG L 1 35]) with regard to the issuing of neighbourhood plans: the cantonal government will continue to have the final say on neighbourhood plans (see Art. 26 RPG). However, not only the cantonal department will now be able to submit a draft neighbourhood plan, but also the landowners concerned. If several neighbourhood plans are submitted, a communal referendum should decide which draft the cantonal government should deal with. The relevant cantonal authorities have declared the initiative partially invalid, as the Geneva cantonal constitution does not provide for such a communal vote. The initiative committee is lodging an appeal in matters of public law. Every canton adopts a democratic constitution (Art. 51 para. 1 BV). All cantonal constitutions must provide for a directly elected parliament, the separation of powers and a constitutional initiative and referendum. Apart from these minimum requirements, the cantons are free to decide which content they wish to regulate at constitutional level. In particular, they are not obliged to include all important norms or only important norms in their constitutions. According to the case law of the Federal Supreme Court, new political rights require a formal legal basis, but whether this must be in the constitution or in a simple law depends on cantonal law. The cantonal constitution of Geneva regulates the cantonal and communal direct-democratic means in detail (Art. 52-72 KV/GE). However, it does not prohibit the creation of additional popular rights by law. In addition, the popular right demanded by the initiative relates to a very limited area of spatial planning. It also corresponds to the spatial planning principle of public participation (Art. 4 RPG; Art. 134 KV/GE). Approval of the appeal in matters of public law.

The municipality of Lancy (Canton of Geneva) granted a licence to A. AG with public billposting. In 2018, its competitor B. AG contacted the municipality and asked when the billposting would next be put out to tender. B. AG never received a reply. In 2019, Lancy extended A. AG's licence without a public tender and concluded a ten-year billposting contract with the company. As soon as B. AG learnt of this, it turned to the Geneva administrative courts. The latter declared the renewal decision null and void and ordered Lancy to put the billposting contract out to tender again. With regard to the fate of the licence relationship, it referred the parties to the civil courts. The municipality of Lancy and A. AG lodged an appeal in matters of public law.

The municipality of Lancy (Canton of Geneva) granted a licence to A. AG with public billposting. In 2018, its competitor B. AG contacted the municipality and asked when the billposting would next be put out to tender. B. AG never received a reply. In 2019, Lancy extended A. AG's licence without a public tender and concluded a ten-year billposting contract with the company. As soon as B. AG learnt of this, it turned to the Geneva administrative courts. The latter declared the renewal decision null and void and ordered Lancy to put the billposting contract out to tender again. With regard to the fate of the licence relationship, it referred the parties to the civil courts. The municipality of Lancy and A. AG lodged an appeal in matters of public law.

The Geneva police applied to the public prosecutor's office to open an investigation into suspected human trafficking against family A. The public prosecutor's office then ordered the installation of cameras outside the house, which was authorised by order of the compulsory measures court on 17 November 2017. This surveillance system was in operation from 22 January 2018, but new findings made it necessary to extend the surveillance. On 21 February 2018, the public prosecutor's office applied for a three-month extension of the measure, which was approved the following day. The complainants demanded that the decisions of the compulsory measures court of 17 November 2017 and 22 February 2018 be revoked, that the unlawfulness of the secret surveillance be established and that the image carriers be destroyed immediately. They argue that the public prosecutor's request for an extension of 21 February 2018 was submitted late, as the order of the compulsory measures court of 17 November 2017 authorised the surveillance until 20 February 2018. According to Art. 274 para. 5 of the Code of Criminal Procedure, which applies to other technical surveillance measures pursuant to Art. 281 para. 4 of the Code of Criminal Procedure, the compulsory measures court can grant authorisation for a maximum of three months and if an extension is necessary, the public prosecutor's office must apply for this before the deadline expires. After careful interpretation, the Federal Supreme Court concludes that evidence obtained between the end of the authorised surveillance period and the receipt of the application for an extension must be regarded as absolutely unusable. The surveillance carried out on 21 February was therefore unlawful and the recorded data had to be destroyed immediately.

In the case of a jointly operated agricultural business within the meaning of Art. 40 para. 1 of the Civil Code, the spouse is not entitled to service of a payment order if it is not also the family home (Art. 169 of the Civil Code). Art. 153 para. 2 lit. b CC does not contain a legal loophole in this respect.

According to case law, claims wrongly made in Swiss francs must be rejected. The judge must establish the non-existence of the claim and dismiss the claim as unfounded due to a breach of Art. 84 para. 1 CO. However, the creditor has the option of filing a new claim in a foreign currency. This is because the subject matter of the new action in foreign currency is not identical to that of the original action in Swiss francs. However, the limitation period for a foreign currency claim is also interrupted if the creditor files a request for arbitration in Swiss francs, regardless of the further course of the proceedings. This is because the creditor has thereby duly notified an official body of his intention to pursue payment of his claim and this intention was recognisable to the debtor in good faith. Furthermore, it would be difficult to see why the limitation period for a claim in foreign currency could be interrupted by a debt enforcement request in Swiss francs, but not by a request for conciliation in Swiss francs (E. 6).

In this case, the Federal Supreme Court ruled that, in the case of full-time employment, an exceptional settlement of the holiday pay entitlement due to monthly fluctuations in the salary owed was ruled out. In view of the software and time recording systems available today, the calculation of holiday pay no longer appears unreasonable, even in the case of monthly wage fluctuations. The protective purpose of Art. 329d CO would be undermined if, in the case of a full-time workload, it were possible to deviate from the prohibition on compensation due to fluctuations in the salary owed (E. 2.2.3.). As the compensation of holiday pay with the current salary could cause difficulties in the case of irregular employment, the Federal Supreme Court has exceptionally authorised deviations from the otherwise mandatory legal text of Art. 329d CO in such cases. However, one material and two formal requirements had to be examined for this (E. 2.2.1.):

In the specific case, the complainant exceeded the speed limit of 40km/h by 49km/h, which is why he was penalised for a gross traffic violation. He lodged an appeal against this penalty order, in which he questioned the accuracy of the speed measurement. The expert opinion commissioned by the public prosecutor's office came to the conclusion that the complainant had been travelling at least 50 km/h too fast. The complainant then withdrew his objection. The public prosecutor's office nevertheless brought charges, namely for blatant speeding. The Federal Supreme Court stated the following: If an objection is lodged against a penalty order, the public prosecutor's office takes the further evidence required to assess the objection. It then decides whether to: uphold the summary penalty order; discontinue the criminal proceedings; issue a new summary penalty order; bring charges (E. 1.1.2.). After taking the evidence, the public prosecutor's office proceeds in accordance with Art. 355 para. 1 lit. c or d of the Code of Criminal Procedure. The public prosecutor's office is not bound by its original summary penalty order if the factual or legal situation changes and therefore the sentence or sanctions also change. In addition, the prohibition of "reformatio in peius" no longer applies. Depending on whether the sentence is still suitable for the new factual or legal situation, the public prosecutor's office must issue a new summary penalty order or otherwise file an independent indictment with the court of first instance in accordance with Art. 324 ff. of the Code of Criminal Procedure. For new offences, an investigation must be opened in accordance with Art. 309 of the Code of Criminal Procedure. With regard to these new offences, various special features of Art. 355 para. 2 and Art. 356 of the Code of Criminal Procedure can no longer be applied (E. 1.1.2.). If an objection has been lodged, the accused person's power of disposal is withdrawn until the public prosecutor's decision on the new outcome of the proceedings in accordance with Art. 355 para. 3 lit. a-d of the Code of Criminal Procedure (E. 1.2.). The objector can only make use of his right of withdrawal if the public prosecutor's office adheres to the summary penalty order within the meaning of Art. 355 para. 3 lit. a of the Code of Criminal Procedure by referring it to the judge.

Cantonal social insurance (premium reduction) The complainant's entitlement to premium reductions for 2020 was in dispute. In particular, it was disputed whether the cantonal law, in this case Zurich, was in conformity with federal law (E. 2.). The appellant prevailed with his specific review of the law. In the case to be assessed here, this meant that the health services were not able to reject the complainant's claim to premium reductions for 2020 with reference to Section 62 para. 2 KVG in conjunction with Section 16 para. 2 aVEG. § KVG or the tax estimates for 2017 and 2019 (E. 5.7.).

Authorisation According to Art. 7 para. 2 lit. b StPO, the cantons may provide that the prosecution of members of their executive and judicial authorities for crimes or offences committed in office is dependent on the authorisation of a non-judicial authority. In this decision, the Federal Supreme Court explained that and why private individuals who are entrusted with public duties may or must be prosecuted without authorisation within the meaning of Art. 7 para. 2 lit. b StPO (E. 3.4.5.). According to the new decision, private individuals who have only been entrusted with public duties are not to be protected (E. 4.4.).

Abuse of authority; arbitrariness, prosecution principle In this case, a police officer was charged with unnecessarily using pepper spray against the manager of a nightclub. The Federal Supreme Court commented in detail on the offence of Art. 312 SCC, abuse of authority (E. 1.3.).

Debt collection and bankruptcy law (attachment order) The appeal to the Federal Supreme Court was prompted by the execution of an attachment order by the tax authorities, which was issued on the basis of a freezing order for direct federal taxes in the amount of CHF 65,000,000 (E.2.).

Criminal proceedings; request for release from custody In the present case, the Federal Supreme Court had to rule on whether the public prosecutor's office has a right of appeal against decisions of the compulsory measures courts regarding the ordering, cancellation or extension of pre-trial detention or preventive detention of accused persons. The right of appeal of the public prosecutor's office in these situations was already discussed and rejected by the legislature as part of the revision of the Code of Criminal Procedure (E. 2.3. f.). In accordance with the intention of the legislature, the Federal Supreme Court confirms that the public prosecutor's office has no right of appeal against decisions of the compulsory measures courts on the ordering, extension and cancellation of pre-trial detention or preventive detention of accused persons (E. 2.4.).

Criminal proceedings; request for release from custody In the present case, the Federal Supreme Court had to rule on whether the public prosecutor's office has a right of appeal against decisions of the compulsory measures courts regarding the ordering, cancellation or extension of pre-trial detention or preventive detention of accused persons. The right of appeal of the public prosecutor's office in these situations was already discussed and rejected by the legislature as part of the revision of the Code of Criminal Procedure (E. 2.3. f.). In accordance with the intention of the legislature, the Federal Supreme Court confirms that the public prosecutor's office has no right of appeal against decisions of the compulsory measures courts on the ordering, extension and cancellation of pre-trial detention or preventive detention of accused persons (E. 2.4.).

Value added tax, tax periods 2018-2020 After ceasing its operating activities, B. AG wanted to develop a previously used factory property into a residential complex and then sell it to an investor. As an interim use, the building was initially to be let to third parties. B. AG wanted to opt for taxation of the rental performance. Not long after the start of the interim utilisation, B. AG sold the property to A. AG. The FTA then issued a declaratory ruling to A. AG stating that A. AG was not entitled to deduct the input tax incurred in connection with the demolition. A. AG lodged an appeal.

Citizenship and aliens law: Revocation of settlement permit A Spanish national had his permanent residence permit revoked because he was receiving social assistance for several months due to an operation and the associated inability to work. According to Art. 63 para. 1 lit. c AIG, the settlement permit can be revoked if the foreign national is permanently and significantly dependent on social assistance (E. 4.1). According to established Federal Supreme Court case law, the concrete risk of social welfare dependency must still exist at the time of the contested judgement (E. 4.5). In the specific case, however, the complainant had not been receiving social assistance for eight months, but an AHV pension (due to early retirement) with supplementary benefits (E. 4.7). According to case law, supplementary benefits to AHV/IV do not fall under the concept of social assistance. The grounds for revocation of dependency on social assistance within the meaning of Art. 63 para. 1 lit. c AIG therefore no longer existed at the time of the contested judgement. (E. 4.5). The settlement permit could not be revoked.

Inheritance law (division of an estate) The starting point for this decision was an inheritance distribution action filed in 2003 (!). The facts of the case were that the deceased had concluded an inheritance agreement with four of the five beneficiaries during his lifetime. Among other things, the distribution of the public limited company (AG) in the estate, of which the deceased was the sole shareholder, was regulated. It was then agreed that the share capital would be divided equally among all the beneficiaries. Exceptions to the distribution were only agreed with regard to the voting shares (A.a). In particular, the allocation of the AG shares was disputed (E.2.), whether the added value resulting from their allocation was subject to compensation (E.3.) and whether the testator's gifts during his lifetime were to be compensated (E.4.). In doing so, the BGer addresses, among other things, the difference between an inheritance contract and a testamentary disposition and the consequences of this distinction with regard to the interpretation of the text passages in question (E.3.2.ff.). The BGer states that an inheritance contract can also contain testamentary provisions in addition to contractual provisions. Whether a certain clause contained in the inheritance contract is of a contractual or unilateral nature depends on whether the contracting party of the testator had a recognisable interest in binding the testator (E.3.3.). Furthermore, the BGer dealt with the question of whether gifts by the AG controlled by the deceased to the beneficiaries and their general partnerships in the sense of an "indirect gift" pursuant to Art. 626 para. 2 ZGB are subject to compensation. For this to be the case, the legal independence of the legal entities would have to be broken and an abuse of law on the part of the testator would have to be proven in the context of an "inheritance law" intervention (E.4.3.2.f.). However, the Federal Supreme Court concludes that the concept of fairness and equal treatment enshrined in Art. 626 para. 2 of the Swiss Civil Code takes precedence and that the focus should not be on the "abuse" of the legal independence of the legal entity controlled by the testator in the case of an indirect benefit, but on the fact that the testator grants his descendants a pecuniary advantage free of charge and thus also reduces his own assets (E.4.4.3.).

Spatial planning and public building law (partial amendment of the law of the Canton of Basel-Stadt of 5 June 2012 on the promotion of housing [WRFG/BS]) The content of the present Federal Supreme Court case law is the legislative competence of the cantons with regard to tenancies under civil law and when a corresponding law is to be classified as public or private law. The voters of the canton of Basel-Stadt approved the popular initiative "Yes to REAL housing protection!" in November 2021. The proceedings before the Federal Supreme Court concerned the new Section 8a WRFG/BS, according to which the authorisation required to convert, renovate or refurbish a property in times of housing shortage is made dependent on whether the current tenants are entitled to a right of return (E.1.1.2.). The Federal Supreme Court does concede that the cantons have the right to take measures such as the present authorisation requirement to combat rental shortages. However, the cantons are not permitted to intervene directly in contracts between landlords and tenants, as federal civil law regulates this matter conclusively (E.4.2.2.). This is questionable in particular due to the aforementioned "right of return" of the tenants in the new cantonal authorisation practice (E.4.4.1.). In order to assess whether the disputed "right of return" is a provision of civil or public law, the court refers to the theory of interests, the theory of function and the theory of subordination (E.4.4.4.). Particularly with regard to the theory of interests, the "right of return" primarily focusses on the interests of the private tenants. No sufficient restrictions would be imposed that would prioritise public interests or socio-political objectives (E.4.4.5.). Against this background, the Federal Supreme Court partially upheld the appeal and only ordered the cancellation of the return condition (E.6.).

Collocation (time limit for filing an action) This case concerned the deadline for filing an action to contest the schedule of claims pursuant to Art. 250 para. 2 SchKG. The question was whether the court holidays pursuant to Art. 145 ZPO or Art. 63 SchKG apply to the action to contest the schedule of claims. According to the Federal Supreme Court, the court holidays provision of the ZPO may take precedence, even if the event triggering the deadline is a debt enforcement act and therefore the debt enforcement holidays could (also) apply. Art. 145 para. 4 ZPO therefore does not have a comprehensive exclusionary effect vis-à-vis the court holiday regulation of the ZPO (E. 4.2.).

Ownership of springs The Federal Supreme Court provides an almost textbook-like and comprehensive statement on the topics of springs, public waters, brook springs and private springs within the meaning of Art. 704 para. 1 CC.

Residence permit, family reunification First of all, an interesting consideration regarding the language used before the Federal Supreme Court. According to E. 1.5., an appeal can also be lodged in French, even if the proceedings are conducted in German. However, the judgement is then issued in German. In this case, it was disputed whether the lower court was right to refuse family reunification due to the concrete risk of significant and continued dependence on social welfare. In this context, the Federal Supreme Court addresses the relevant requirements and proportionality (E. 4.).

Matrimonial protection measures, spousal maintenance, dispositional maxim Spousal maintenance is subject to the principle of discretion. Nevertheless, according to the Federal Supreme Court, it is not arbitrary to increase spousal maintenance in the event of a reduction in childcare maintenance, even without a corresponding request.

Lugano Convention, guarantee The Federal Supreme Court had to decide for the Lugano Convention whether the appellant, as a beneficiary third party, can be held against the jurisdiction clause in a genuine contract in favour of third parties if it brings its claim under this contract in another forum (E. 4.). The Federal Supreme Court came to the conclusion that the applicable jurisdiction clause was effective. The Bernese courts therefore have no jurisdiction with regard to the contractual claims asserted by the appellant and the lower court was right to decline jurisdiction (E. 4.9.). The Federal Supreme Court went on to consider possible liability arising from the law of simple partnership or from an aroused group trust, but denied both claims (E. 5.). Finally, the concept of suretyship was interpreted (E. 7.).

Arbitration proceedings, revision Two parties reached an agreement in arbitration proceedings. The arbitrator then set the procedural costs. These procedural costs were successfully challenged before the Federal Supreme Court. The arbitrator lodged an appeal against this with the Federal Supreme Court. The legitimacy of the appellant, i.e. the sole arbitrator, who was not a party to the main proceedings, but the adjudicating authority, was in question (E. 1.2.). The Federal Supreme Court came to the conclusion that the sole arbitrator's authority to file an appeal against the Federal Supreme Court's ruling of 3 May 2022 was affirmed insofar as his fee was reduced and court costs were imposed on him (E. 1.2.3.).

Value added tax, tax periods 2006 to 2009, aeroplane This case concerned A AG, which was entered in the register of persons liable for VAT. It was the owner of an aeroplane and it was questionable how it should be treated for VAT purposes. Subject to special circumstances, a company cannot be accused of abusive behaviour by registering in the register of persons liable for VAT if the law obliges the company to register. However, the accusation of tax avoidance cannot generally be made as long as it has not been established that the chosen structure justifies the company's subjective tax liability - as well as the obligation to report to the register. Without a subjective tax liability, the company cannot deduct input tax or realise tax savings. With this in mind, it was also necessary to clarify the extent to which services provided by an aircraft ownership company for private use by the beneficial owner or related parties can be considered a commercial activity that entitles the company to deduct input tax (E. 5.3.).

State and municipal taxes of the Canton of Thurgau, withholding tax, 2017 tax period The complainant considered his rights under the Agreement on the Free Movement of Persons to have been violated. The Federal Supreme Court commented in particular on the relationship between the withholding tax and the taxation in the ordinary assessment (E. 6.4.).

Fundamental rights, amendment of the Cantonal Police Act of 6 May 2020 The Federal Supreme Court partially upholds an appeal in connection with amendments to the Solothurn Cantonal Police Act. Among other things, it cancels a provision on automated vehicle searches that would have enabled data to be compared with all registers of persons and property searches. Furthermore, automated vehicle searches may not be ordered until supplementary regulations on various aspects of data protection are in force.

State and municipal taxes of the Canton of Aargau, tax period 2017, deduction pillar 3a The complainant debited his postal account on 29 December 2017 in favour of his pillar 3a account. However, simply debiting the account is not sufficient. According to the Federal Supreme Court, it is crucial that the contribution is credited to the taxpayer's pension account in the relevant calendar year. Only then can a contribution be used exclusively and irrevocably for the appellant's occupational pension scheme and be deemed to have actually been made (entry into the pension scheme cycle) (E. 4.1.).

Value added tax, tax periods 2012-2015 A municipality had a new community centre built. It was undisputed that the property management department of this municipality was in principle entitled to deduct input VAT incurred in connection with the construction and rental of the new community centre in accordance with Art. 28 para. 1 of the VAT Act. However, it was disputed whether the property management department received the funds for the construction of the community centre in the form of a subsidy or another public-law contribution in accordance with Art. 18 para. 2 lit. a MWSTG and whether the input tax deduction should therefore be reduced proportionately in accordance with Art. 33 para. 2 MWSTG. In particular, the concept of subsidy was interpreted (E. 3.5). The Federal Supreme Court came to the conclusion that the funds made available to the property management department for the construction of the community centre did not constitute subsidies or contributions under public law in accordance with Art. 18 para. 2 lit. a MWSTG (E. 3.7.).

Deletion of comments in SRG online forums and social media channels: legal recourse via the SRG ombudsman's office and UBI The deletion of a comment on an editorial contribution by the Swiss Broadcasting Corporation (SRG) in one of its online forums or social media channels can be legally contested. Whether the author's freedom of expression has been unlawfully infringed in an individual case must be examined by the Independent Complaints Authority for Radio and Television (UBI) following a prior attempt at mediation by the SRG ombudsman's office. The commentary function is used to exchange opinions and form opinions about the editorial contribution. If SRG offers such forums for expressing opinions outside of its programming, it must act as far as possible in accordance with fundamental rights and take account of its role as a provider of radio and television services licensed throughout Switzerland. By deleting comments or the individual, temporary or permanent exclusion of persons from the comment function, SRG interferes with the freedom of expression of those affected. This means that legal recourse must be available that fulfils the requirements of the Federal Constitution (Article 29a BV). This is stated in the Federal Supreme Court's press release of 29 November 2022. The actual grounds for the judgement are not yet available. Internal note: The subject of the present judgement was apparently only the deletion of a commentary by the SRG, which affirmed that the SRG had interfered with freedom of expression. At first glance, it does not seem clear what impact this judgement will have. The question arises as to whether the SRG must now generally respect freedom of expression in its regulation of commentaries (which is to be feared) or whether the SRG can generally dispense with the commentary function. What is already clear is that this judgement will entail an almost unsustainable amount of additional work for SRG and complaints bodies. The reasons for this judgement were published on 05.01.2022: The Federal Supreme Court ruled that the SRG is bound by fundamental rights in connection with the commentary function (E. 2.3.). By deleting comments, the SRG interferes with the freedom of expression of those affected. Adequate legal recourse must therefore be available (E. 3.1.). The civil, criminal and supervisory legal recourse to which the SRG and the UBI refer - apparently privileged by the legislator in the present problem area - does not fulfil the constitutional requirements of Art. 29a BV (E. 3.2.2.). Only legal recourse to the UBI as a specialised court (and judicial lower instance of the Federal Supreme Court) is suitable to meet the requirements of Art. 29a BV (or Art. 13 in conjunction with 10 ECHR) (E. 3.3.4.).

Accident insurance (proceedings before the court of first instance; free administration of justice) In dispute and subject to review was whether the Administrative Court of the Canton of Thurgau violated federal law by rejecting the appellant's request for the appointment of attorney B as a free legal representative for the cantonal appeal proceedings. It did so on the grounds that she was not registered in the cantonal register of lawyers. According to the Federal Supreme Court, this application of § 81 para. 2 VRG/TG violates, in particular, Art. 29 para. 1 and 3 BV and Art. 61 lit. f ATSG (E. 7.2.). The appeal was therefore upheld and attorney B was appointed as a free counsellor.

Accident insurance (proceedings before the court of first instance; free administration of justice) In dispute and subject to review was whether the Administrative Court of the Canton of Thurgau violated federal law by rejecting the appellant's request for the appointment of attorney B as a free legal representative for the cantonal appeal proceedings. It did so on the grounds that she was not registered in the cantonal register of lawyers. According to the Federal Supreme Court, this application of § 81 para. 2 VRG/TG violates, in particular, Art. 29 para. 1 and 3 BV and Art. 61 lit. f ATSG (E. 7.2.). The appeal was therefore upheld and attorney B was appointed as a free counsellor.