Federal court case law 1st quarter 2024

In February 2020, the Schaffhausen electorate approved the "Transparency Initiative". Instead of implementing it, the Cantonal Council planned to weaken it with motion no. 2021/7 of the FDP "More transparency - but with a sense of proportion", whereupon the "implementation initiative" was launched. The Federal Supreme Court stated that voters would be faced with a dilemma if the motion were not put to the electorate at the same time as the implementation initiative (E. 4.4.3). This would not guarantee a differentiated vote, which is why the Cantonal Council would have to decide on the validity of the "implementation initiative" and compare it with the constitutional amendment based on the motion as a counter-proposal in a referendum. Finally, it should be mentioned that the Federal Supreme Court also indirectly commented on the validity of the implementation initiative, even though this is the responsibility of the Schaffhausen Cantonal Council ("prima vista everything speaks in favour of declaring the implementation initiative valid") (E. 4.4.5).

In order to be entitled to short-time working compensation, the loss of working hours must be determinable or the working hours must be sufficiently controllable (Art. 31 para. 3 lit. a AVG). Sufficient controllability of the loss of working hours presupposes that there is an operational working time control in the sense of the requirement of daily continuous recording (E. 5.1.2) and that the documents are kept for five years. In the present case, the appellant subsequently submitted documents that should have proven the company's control of working hours. The Federal Supreme Court upheld the view of the lower court that the documents must be "obviously authentic" in order to be taken into account, which was not the case here. The appellant would have submitted the documents immediately if they had already been available at the time of the inspection (E. 5.1.2).

If the disability assessment is based on table salaries, the most recent statistical data, i.e. the most recent data published at the time of the ruling in relation to the time of the start of the pension, must be taken into account (E. 4.2; E. 5.2). In a ruling dated 20 December 2022, the appellant was granted a graduated disability pension with retroactive effect from 1 February 2022 (E. 5.2). With regard to publication, the Federal Supreme Court stated that the relevant table must be published at the time of the decision (in casu: 20 December 2022) - but not already at the time of the pension downgrading (E. 5.3).

The relevant mutual legal assistance agreements with Russia continue to apply and Switzerland is in principle obliged to provide mutual legal assistance (E. 2.2; BGE 149 IV 144). According to Federal Supreme Court case law, the person whose extradition is requested can primarily invoke Art. 2 IMAC (E. 4.2). In the present case, the respondent's requirements for invoking Art. 2 IMAC (E. 4.2) were not met (E. 4.3). The duration of a coercive measure (in casu: seizure) must be examined under three different aspects (E. 5.1). The complaint that the proceedings in the requesting state took too long is only successful in Swiss mutual legal assistance proceedings if the person concerned can invoke Art. 2 IMAC and the delay in the proceedings is contrary to public policy. According to Art. 17a para. 1 IMAC, the competent authority must deal with the request expeditiously and decide without delay. The Federal Supreme Court assumes that even a serious violation of the requirement of swift execution does not lead to a refusal of legal assistance (E. 5.1). Finally, it must be examined whether the interference with the guarantee of ownership associated with the maintenance of the seizure is no longer proportionate (E. 5.1). In casu, the freezing of the account lasted more than eight years. On the one hand, the interference is not minor. On the other hand, the public and private interests in the ordered measure that conflict with the interests of the respondent are significant because there is a risk that the subsequent confiscation of the assets of presumably criminal origin or their handover to injured parties could be thwarted if the account freeze is lifted. However, the duration of the proceedings cannot be criticised and, accordingly, a violation of the guarantee of property rights must be denied (E. 5.2).

As far as can be seen, this was the first time that the Federal Supreme Court had ruled on the new grounds for detention under Art. 221 para. 1bis of the Code of Criminal Procedure. In this leading judgement, it examined the "qualified risk of repetition" ground for detention under the old and new law. In contrast to the "simple" risk of recidivism (Art. 221 para. 1 lit. c StPO), no relevant previous offence is required. In contrast, the prognosis for recidivism must not only be unfavourable, but very unfavourable in the case of a qualified risk of recidivism. The complainant was remanded in custody as part of a criminal investigation for intentional homicide and other offences. The complainant asserted a violation of Art. 221 para. 1bis lit. b of the Code of Criminal Procedure (E. 1.2.), although the lower court, in accordance with the required psychiatric report, established numerous risk factors to be classified as serious, which made the risk of recidivism with regard to renewed, even serious, offences of violence appear to be moderate to increased (E.3.5.). The Federal Supreme Court ultimately confirmed that a sufficiently significant (serious and immediate) probability of new serious violent offences was to be affirmed in the present case.

Infringement of Art. 2 para. 1 of the Federal Act on the Prohibition of the Groups "Al-Qaeda" and "Islamic State" and Related Organisations; obligation to state reasons, requirement of certainty, freedom of expression and media freedom, etc.

When assessing the question of the relationship between the obligation to make an advance withdrawal of vested occupational benefits and the entitlement to social benefits, the Federal Supreme Court found that the principle of subsidiarity does not take absolute precedence over pension protection (E. 6.5 and E. 7.4). It stated that an early withdrawal at the age of 60 was possible in principle and that a recipient of social benefits could be requested to make an early withdrawal, but that this should not lead to the entire vested benefit assets already being used up when the age limit of 63 is reached for the early withdrawal of the AHV pension (E. 7.3.2). The calculation of the use of funds should then be based on the needs calculation of the supplementary benefit, as the appellant would no longer have been fixed at the minimum subsistence level under social law if he had withdrawn his vested benefits early (E. 7.3.3).

It is not clear from the provision whether the hypothetical income pursuant to Art. 14a para. 2 ELV is gross or net income. This differentiation is relevant for the assessment of the question of whether the hypothetical social contributions to be paid are to be deducted. The Federal Supreme Court states that the deduction was denied in previous rulings on the grounds that the existence and amount could not be determined (E. 3.2.1). In the present case, however, the social security contributions were actually paid and were therefore no longer available to cover living expenses. Accordingly, Art. 10 para. 3 lit. c ELV also applies in cases of Art. 14a para. 2 ELV, which is why the mandatory social insurance contributions must be deducted (E. 3.2.2).

In the present case, the Federal Supreme Court considered that although child maintenance is formally structured as an entitlement of the child, in economic terms it is due to the parent providing care (E. 5.3.1). This is calculated on the basis of the difference between the basic needs under family law and the net income of the parent providing care (E. 5.3.2). This means that a higher income of the parent providing care is directly reflected in the amount of maintenance owed (E. 5.3.2), as the parent providing care can cover the basic needs themselves, or at least to a greater extent, as a result of the increased income. Accordingly, a modification of the childcare maintenance is to be made if the change that has occurred is permanent and substantial; a more extensive overall consideration of childcare maintenance is not permissible (E. 5.3.3). Consequently, for the first time, the Federal Supreme Court affirmed that no unreasonable imbalance is required for the modification of child maintenance. The situation is different for cash maintenance, which covers the direct costs of the child and where the circumstances of the individual case can be taken into account (E. 5.3.1).

The Federal Supreme Court states that the limitation period begins to run on the day following the day of the offence, whereby the time at which the offender carried out his criminal activity is decisive (E. 1.2.3). The time of the offence of failure to declare withholding tax is defined as the submission of the annual financial statement or, if none is submitted, after the expiry of the 30-day declaration obligation pursuant to Art. 21 para. 1 VStV (E. 1.2.3). The Federal Supreme Court then confirmed its case law according to which a penalty order issued in adversarial proceedings is deemed to be a judgement of the first instance (E. 1.3.3). This case law does not violate Art. 6 para. 1 ECHR or Art. 30 para. 1 BV, as an appeal against the penal order is judged by a criminal court - i.e. a court that has full jurisdiction (E. 1.3.4). Finally, it had to be decided how to proceed if, in the absence of a taxable person, a decision on the obligation to pay can no longer be made under administrative law (E. 2.4.1). After commenting on the Federal Council's dispatch on Art. 73 VStR (E. 2.4.3), the Federal Supreme Court came to the conclusion that in cases in which the preliminary question of the obligation to pay or repay cannot (or can no longer) be decided under administrative law for whatever reason, the files can be transferred to the competent public prosecutor's office for the attention of the competent criminal court on the basis of Art. 73 para. 1 sentence 1 VStrR even without the existence of a legally binding decision on the obligation to pay or repay (E. 2.4.4).

The Federal Supreme Court confirmed that a distinction must be made between any chance finds obtained through mutual legal assistance and those from surveillance pursuant to Art. 269 et seq. StPO must be differentiated (E. 5.6; BGE 143 IV 270 E. 4.7). Although the Swiss authorities rely on specific and detailed grounds for suspicion, according to the Federal Supreme Court, this is not a chance discovery within the meaning of Art. 274 in conjunction with Art. 278 CCP. Art. 278 StPO, as the evidence obtained through mutual legal assistance was also to be used in the offences investigated to date (E. 5.8). Whether this evidence was lawfully obtained by the American authorities and can therefore be utilised is not a matter for the compulsory measures judge, but for the judge of the merits to decide (E. 5.8).

The Federal Supreme Court found that an application by the administrator is mandatory for an extension of the definitive debt restructuring moratorium pursuant to Art. 295b SchKG. An extension without an application by the administrator or at the request of the debtor or a creditor cannot be derived either historically (E. 3.5 et seq.) or from the purpose (E. 3.6 et seq.) of the provision. If the administrator does not apply for an extension of the definitive debt restructuring moratorium or does not do so in good time and the definitive debt restructuring moratorium expires, this has the same effect as a cancellation during the definitive moratorium (Art. 296b SchKG) and results in bankruptcy (E. 4).

Screening method: From the 2017 statistical year, the screening method (statistical method) applies for auditing the cost-effectiveness of services. The screening method is characterised by its two-stage regression analysis and represents the "first step" in the performance audit; it is used to detect doctors with conspicuous costs (E. 4.3.2 and E. 4.4.1). If the result of the screening is conspicuous, an individual case analysis is necessary in a "second step", whereby this should not be confused with the conventional analytical test method (E. 5.2.4). Accordingly, the screening does not establish uneconomical treatment - but only conspicuous costs - and therefore cannot form the basis of a reclaim; rather, the claim must be based on a complete case-by-case examination (E. 5.3.1 and E. 5.6). As a result, the screening method is not a method of proof that would justify a reversal of the burden of proof (E. 5.3.2). Furthermore, the Federal Supreme Court found that the tolerance margin should also be estimated as a supplement of 20 to 30 points to the reference index with the new screening method (E. 5.4).

Three-year period for registering a community lien: In this decision, the Federal Supreme Court had to decide for the first time the question of how to calculate the three-year period for registering a community lien in accordance with Art. 712i of the Swiss Civil Code. Different methods of calculation are used both in doctrine and in cantonal case law. The Federal Supreme Court held that the grammatical interpretation of the provision does not provide a clear answer as to how the time limit should be calculated (E. 6.2.1.7). The purpose of the community lien is to minimise the risk of uncollectability of the contribution claims owed by the condominium owners, as these may be the only assets of the community property (E. 6.2.1.10). The community lien is not a direct statutory lien that enjoys a ranking privilege and priority right of realisation, i.e. the principle of seniority applies. In order to fulfil the meaning and purpose of the provision, the starting point for the retroactive calculation of the three-year period must be based on the request for registration of the community lien, whereby the due date of the contribution claim marks the starting point (E. 6.2.1.10 in conjunction with E. 6.2.1.1). By way of illustration: If a contribution claim is due on 30 September 2020, the request for registration of the community lien would have to be submitted on 30 September 2023 at the latest (E. 6.2.1.2).

In this case, the question to be answered was whether the pensions from the Bavarian Medical Pension Fund (BÄV) should be taxed at 40% as life annuities or whether they should be fully recognised for tax purposes. Due to the tax residency, it was undisputed that the pension benefits from Germany are taxable in Switzerland (E. 4.1.1.). With regard to the qualification of the BÄV benefits, the Federal Supreme Court stated that the pension network in connection with compulsory insurance is most comparable to the Swiss AHV and, in the case of voluntary continued insurance, to the occupational pension scheme (E. 4.3.2.2.). For the majority of the period, i.e. the pensions from contributions were taxable as income from occupational pension provision during the period of voluntary insurance with the BÄV (E. 4.3.2.4.). According to case law and literature, the transitional provisions pursuant to Art. 204 DBG are not applicable, as the provision only applies to income from BV institutions, which must be from registered pension schemes, from pension solutions pursuant to Art. 331 para. 1 CO or from vested benefits policies (E. 5.3.1.). The non-application of Art. 204 DBG also does not lead to a violation of the prohibition of discrimination pursuant to Art. 2 FMOPA, as the facts of the case cannot be compared with those of a person who moved to Switzerland from abroad, as the complainants voluntarily continued an insurance solution taken out abroad and the contributions to the BÄV were never tax-deductible in Switzerland (E. 5.4.2.4.).

According to the case law of the ECtHR, a state party may grant further compensation in addition to the compensation already awarded by the ECtHR under Art. 41 ECHR, either in the form of additional money or in another form, e.g. the mitigation of a sentence imposed (E. 2.2.). Following a violation of the Convention established by the ECtHR, an appeal to the Federal Supreme Court must be conducted (E. 2.3). An appeal to the Federal Supreme Court based on a judgement of the ECtHR serves exclusively to compensate for non-financial disadvantages (cf. Art. 122 lit. b BGG e contrario). This means that the cantonal proceedings, which are conducted on the basis of the revised Federal Supreme Court judgement, cannot again extend to financial aspects on which the ECtHR has already ruled. In casu, there is no domestic legal basis for additional financial compensation for the unjustly suffered deprivation of liberty after the ECtHR has judged and awarded such compensation (E. 2.4.2.).

In the present case, the question arose as to whether the premiums for daily sickness allowance insurance fall under the general insurance deduction (see Art. 33 para. 1 lit. g DBG and Art. 9 para. 2 lit. g StHG; respectively § 41 para. 2 StG/SO, E. 3.). Specifically, organic deductions (profit costs; Art. 26-32 DBG), general deductions (also known as inorganic deductions, Art. 33 and 33a DBG) and social deductions can be deducted (Art. 35 DBG, E. 4.) In order to assess whether the premiums for daily sickness benefits insurance qualify as profit costs, the criterion of voluntary payment of the premiums must be taken into account (E. 5). In the present case, the daily sickness benefit insurance premiums were not paid voluntarily. There is a qualified close connection between the expenses incurred and the income earned, which is why half of the daily sickness benefit insurance premiums passed on to the taxpayer must be qualified as profit costs in casu (E. 5.4). Thus, half of the premiums for daily sickness benefits insurance passed on by the employer to the taxpayer as an employee are deductible from taxable income as profit costs for direct federal tax as well as for state tax in the canton of Solothurn for the 2018 tax period as part of the professional expense allowance (Art. 26 para. 1 lit. c DBG in conjunction with para. 2 DBG) (E. 5.5.).

A Singaporean company and its subsidiary initiated arbitration proceedings against the People's Republic of China on the basis of Art. 13 para. 3 ISA 1985 and demanded a declaration of various violations of the Investment Protection Agreement 1985 and compensation for the resulting damages. According to Art. 6 para. 2 ISA 1985, the legality of an expropriation or a measure having equivalent effect must be reviewed by the state courts of the contracting state concerned at the request of the investor concerned. In addition, according to Art. 6 para. 1 and 3 ISA 1985, the contracting states are obliged to ensure that sufficient protection against such measures and adequate compensation within the meaning of the agreement is guaranteed on their territory. The arbitral tribunal does not have to decide whether the contracting states have fulfilled this obligation. It can be assumed that the arbitration clause in the ISA 1985 must be interpreted objectively in accordance with the principles set out in Art. 31 et seq. of the Convention and that the jurisdiction of the arbitral tribunal as defined in the treaty cannot be interpreted more narrowly or more broadly depending on whether or not the contracting states have complied with their obligations under the treaty to be interpreted. The arbitration tribunal cannot be accused of violating Art. 31 VRK. Due to a lack of legal relevance, the complainants' complaint was not addressed (E. 5.4.2.).

Art. 1 para. 1 lit. a no. 2 of the FTA Property Costs Ordinance designates contributions to the repair or renewal fund (Art. 712l CC) of condominium communities as deductible maintenance costs, provided that these funds are only used to cover maintenance costs for the common facilities (E. 4.2.). A renovation fund is considered a special fund to finance future maintenance and renovation work (E. 4.3.). Art. 1 para. 1 lit. a no. 2 of the FTA Real Estate Costs Ordinance equates the contribution to the renewal fund with the definitive outflow of funds in terms of time (E. 4.5.) In the present case, the complainant, as the buyer of a condominium unit, requested to be able to deduct from taxable income the amount that he paid to the seller for the share in the renewal fund. Such a payment is qualified as the consideration paid by the buyer to the seller for the sale of movable assets in the form of the share in the renewal fund, does not accrue to the renewal fund and is at no time regarded as maintenance of the property (E. 4.6.). Even if the complainant's ability to pay appeared to be reduced to the same extent as that of the condominium owner who pays the same amount into the renewal fund in the same year, this would not mean that the complainant would also have to claim a tax deduction for this as a matter of constitutional law. (E. 5.2.) Consequently, no federal law was violated by denying the deduction of the complainant's payment to the seller of the condominium unit (E. 7.).

The European Court of Human Rights (ECtHR) found that Switzerland had violated Art. 14 in conjunction with Art. 8 ECHR in its judgment 9C_617/2011 of 4 May 2012. Art. 8 of the ECHR. Art. 122 BGG stipulates that the revision of a decision of the Federal Supreme Court may be requested on the grounds of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR) if the European Court of Human Rights has established in a final judgement (Art. 44 ECHR) has established that the ECHR or the protocols thereto have been violated, or has concluded the case by means of an amicable settlement (Art. 39 ECHR) (Art. 122 lit. a BGG), compensation is not suitable to compensate for the consequences of the violation (Art. 122 lit. b BGG) and the revision is necessary to remedy the violation (Art. 122 lit. c BGG) (E. 2.2.). The Federal Office of Justice declared that the applicant would be paid the amount for the lost pension benefits after the proceedings were cancelled. However, the applicant did not dispute the calculation of the amount of the back payment in a substantiated manner. The appellant was also unable to demonstrate that, under these circumstances, a Federal Supreme Court judgement approving the appeal would be necessary for other reasons. Insofar as the request for revision could be granted at all, the revision proves to be unnecessary within the meaning of Art. 122 lit. c BGG in order to remedy the violation of the Convention due to the willingness of the Swiss Confederation to pay the pension benefits in arrears. The proceedings are therefore dismissed as irrelevant to this extent (E. 3.1.).

The aim of pension deferral is to ensure that persons are placed in the same position during the period in which they draw their pension as if they had drawn their AHV pension on reaching normal retirement age. This purpose is taken into account by calculating the supplement based on the sum of the deferred monthly amounts in accordance with the average calculation stipulated in Art. 55ter para. 2 in conjunction with para. 1 AHVV (lower percentages), with adjustment to salary and price trends (para. 5). A supplement based on the pension applicable at the time of the call, including adjustment of the supplement calculated in this way to the development of prices and income, on the other hand, would result in the capitalised value of the pension supplement exceeding the insurable equivalent value of the pension not drawn during the deferral period, which would be contrary to federal law (E. 7.3.2).

The right of the child protection authority to issue instructions provided for in Art. 273 para. 2 CC is linked to an official regulation of personal contact, which is why in the present case - due to the lack of an official order on the right to personal contact - no instructions should have been issued in accordance with Art. 273 para. 2 CC (E. 3.4.1). Nor can the instruction be justified on the basis of Art. 307 para. 3 ZGB. This requires not only that the best interests of the child are jeopardised, but also that the instruction is proportionate. This is not the case here, especially as it is the duty of the authorities to arrange for the child to be professionally informed by a third party or for a corresponding assessment to be carried out. This official duty cannot be fulfilled by issuing instructions to the mother (E. 3.4.3).

The Federal Supreme Court assessed the question of whether the severe hardship as the first waiver requirement for the repayment of excess coronavirus compensation was given in this case. The Federal Supreme Court applied a strict standard when assessing severe hardship, i.e. over-indebtedness must have occurred or be imminent. Although Covid-19 loans are not taken into account as debt capital for the calculation of the coverage of capital and reserves and for the calculation of over-indebtedness in accordance with Art. 24 para. 1 Covid-19-SBüG, they are considered debt capital for accounting purposes (E. 5.4.2 f.). Accordingly, the company was overindebted and the great hardship as the first cancellation requirement for repayment was present (E. 5.4.4).

In the context of divorce, the principle of joint parental custody applies, which may only be deviated from in exceptional cases if this is in the best interests of the child. The allocation of parental custody to one parent also requires that the problems of the parents relate to the child's interests as a whole, which specifically affect the child's welfare. In addition, the situation must be alleviated (E. 4.2). In any case, the allocation of parental custody to one parent is excluded if there is alternating custody. In terms of procedural law, it is interesting to note that alternating custody was no longer in dispute before the Federal Supreme Court, which is why the lower court can no longer return to it when reassessing parental custody (E. 4.4).

The complainant claimed that the investigating authority had violated the nemo tenetur principle in connection with the procedure for the subsequent payment of import duties (Art. 12 VStR) by failing to inform the Chairman of the Board of Directors of his rights to information and co-operation (E. 3.). The Federal Supreme Court came to the conclusion that Art. 12 VStR does not have a criminal purpose, is not part of substantive criminal law and does not constitute a criminal charge within the meaning of Art. 6 para. 1 ECHR (E. 3.2.). With regard to the statute of limitations, the Federal Supreme Court came to the conclusion by interpreting the relevant provision that Art. 12 VStrR grants the federal administration an independent claim to subsequent payment of duties, which is separate from the duty claim (E. 5.2.). Both claims are time-barred independently of each other (E. 5.3.). It must therefore be decided separately for the claim under duty law and the claim for subsequent payment of import duties in accordance with the relevant legal standard whether the claim is time-barred (E. 5.4.).

In the expert opinion, the alcohol level did not refer to the time of the offence, but incorrectly to the time of the blood sample. Nevertheless, the expert opinion is upheld, as the alcohol concentration at the time of the offence was ultimately not decisive for the assessment of the ability to control, because the expert also took into account other factors such as alcohol habituation, the offence situation and the behaviour of the complainant during the offence (E. 1.5.2. f.). In the present case, the conditions for ordering a measure for young adults and for outpatient therapy were met (E. 2.2.). However, the decision to order a measure for young adults is restricted by the prohibition on under-representation, as the measure would have to be cancelled after the age of 30. This would mean that the "two-thirds limit" of the prohibition of minimum measures would not be observed. The fact that the expert opinion favours a measure for young adults is not sufficient for an order; rather, the prospects of success must be particularly favourable. However, this was not the case in the present case, which is supported by the therapist's assessment. Since the question of the prospects of success can already be assessed on the basis of the expert's and the therapist's assessment, it is not necessary to examine whether the lower court inadmissibly deviated from the forensic psychiatric report by taking the appellant's advanced age and his lack of understanding as indications that he is not very amenable to the education envisaged in the execution of measures for young adults. (E. 2.4.3.).

The financial statements in accordance with a recognised standard pursuant to Art. 962 para. 2 no. 1 CO should ensure "minimum fair play" and enable minority shareholders to realistically assess the value of their investment. However, practicability considerations and the time and financial resources required for the conversion of the accounting standard are also taken into account (E. 5.4.). The Federal Supreme Court came to the conclusion that the right to request financial statements in accordance with a recognised standard for a specific financial year based on Art. 962 para. 2 no. 1 CO must be exercised no later than six months before the balance sheet date of the financial year in question, at least in the case of public limited companies (E. 6.6.). This means that, at the request of a minority shareholder, a company must retroactively introduce the new accounting standard for the half financial year that has already begun, but it still has twelve months to implement the new standard (E. 6.4.).

This case concerned the reclaiming of benefits pursuant to Art. 35a BVG for the period from 1 May 2016 to 31 May 2021. Art. 35a BVG was revised on 1 January 2021, in particular with regard to the limitation period, which raised the question of the law applicable to the facts of the case (E. 3.2. et seq.). Due to the lack of specialised legal norms, the general intertemporal principles are applicable. Permanent matters that are open in time are to be assessed according to the applicable legal principles (E. 3.2.1.). It should also be noted that the second part of the BVG (thus also Art. 35a BVG) only contains minimum provisions, from which deviations may be made in favour of the insured person (E. 3.2.2.). According to case law on aArt. 35 para. 2 BVG, the relative time limit for the reclaim begins at the time when the pension fund should have recognised the error with reasonable care (so-called second cause). However, the time limit cannot run as long as the benefit has not actually been paid. This principle is applicable by analogy to Art. 35a para. 2 BVG (E. 3.3.1.). Art. 135 CO also applies by analogy under the new law for compliance with the relative time limit (E. 3.3.2.). In the present case, this means that the relative deadline for the benefits from 1 May 2016 to 7 August 2018 had already expired, as the objection was made too late, namely on 23 November 2021 (E. 5.2.3.1.). Art. 95 para. 2 of the Pension Fund Regulations applies to the reclaim from 8 August 2018 to 31 May 2021, as this contains the more favourable provision for the insured person (1-year limitation period; E. 5.2.3.2.). As a result, this means that only the deadline for the reclaim from 23 November 2020 to 31 May 2021 is met (E. 5.2.4.).

If the fund contract expressly provides for this, transfer taxes incurred in connection with a change of fund management company may be charged to the fund assets, provided the change of fund management company is in the interests of the investors. Whether the latter is the case depends on whether the benefits of the fund management company change for the investors outweigh the resulting costs (including the transfer tax). The assessment of this question is the responsibility of the fund management companies involved in the conclusion of the transfer agreement on the one hand and FINMA on the other, which only authorises the change of fund management company if the continuation of the investment fund is in the interests of the investors (Art. 39 para. 5 FinIA) (E.4.5.). Contrary to the appellant, it cannot be said that the levying of the transfer tax effectively makes the change of fund management company impossible (E. 4.6.) Finally, the levying of the transfer tax in the event of a change of fund management company is compatible with the principle of uniformity of taxation (E. 5.2.2.). Furthermore, the Federal Supreme Court states that if the appellant takes over the fund management company without insisting on being able to pass on the transfer tax to the investors, it is responsible for this. Confiscatory taxation, which is in any case only assumed under strict conditions (see BGE 143 I 73 E. 5.1 and 5.2), is in any case not to be seen in this (E.6.). In conclusion, the Federal Supreme Court denies the alleged prohibition of arbitrariness (Art. 9 BV) that the lower court applied cantonal law arbitrarily. The majority of doctrine is in favour of levying transfer tax on every transfer of civil law property and therefore also on a change of fund management, as long as cantonal transfer tax law does not, by way of exception, primarily relate to the economic power of disposal (E.7.2.).

As the employer, the complainant has applied to the Basel-Stadt compensation office for compensation for loss of earnings in connection with the measures to combat the coronavirus for its employee. Another employer of the aforementioned employee has also applied to the compensation office of the Canton of Aargau for coronavirus loss of earnings compensation. The Basel-Stadt compensation office then recalculated the entitlement to coronavirus loss of earnings compensation retroactively from September 2020 and reclaimed the benefits paid to its employee from the complainant. The Federal Supreme Court assessed the reclaim of loss of earnings compensation in connection with the measures to combat the coronavirus. It dismissed the appeal and confirmed the reimbursement obligation for the excess amount paid to the appellant (E.7.1.). The violation of the appellant's right to inspect the files as part of her right to be heard (E.4.2.1.) was also rejected (E.4.4.2.). The appellant also argued that it was in no way comprehensible to her how the respondent had calculated the amounts to be recovered. The Federal Supreme Court replied that the respondent was even entitled to a higher recovery amount. However, due to the prohibition of reformatio in peius (see Art. 107 para. 1 BGG), the appellant cannot be obliged to pay a higher amount than the reimbursement amount determined by the cantonal court (E.7.2.2.).

Pursuant to Art. 9 ATSG, a person is deemed helpless if he or she permanently requires the assistance of third parties or personal supervision for everyday activities of life due to health impairment. The dependency on the assistance of third parties must be regular and substantial in accordance with Art. 37 para. 1-3 IVV (E. 3.2.1). In the present case, it was undisputed that the appellant is not in need of assistance in everyday situations (E. 4.). If there is no need for significant assistance from third parties from the outset, helplessness within the meaning of Art. 9 ATSG cannot be assumed. In the present case, the complainant was regularly dependent on the help of third parties to a considerable extent in only three everyday activities of life, which is why the award of a helplessness allowance due to slight helplessness cannot be criticised (E.4.3.2.3.). On the other hand, in the case of complete paraplegia, a helplessness allowance of a slight degree can be paid without clarification in practice (para. 8068 KSIH). In addition, according to established case law, an insured person who is dependent on a wheelchair is deemed to be helpless in the everyday activity of "getting around/establishing contact"; this applies even if the insured person is able to drive a car or move around largely independently in everyday life. For the affirmation of helplessness in this life activity, it is sufficient that a person who is dependent on a wheelchair due to an inability to walk - regardless of whether complete or incomplete paraplegia is present - is regularly and significantly dependent on the help of third parties in everyday life in order to overcome obstacles in a non-wheelchair-accessible environment (E. 5.3.1.).

If the initial rent is increased by more than 10% and this is not justified by a change in the reference interest rate and/or the national consumer price index, there is a presumption of abuse (BGE 147 III 431 E. 3.3). Rebutting the presumption is a matter of circumstantial evidence, i.e. it is sufficient if the landlord raises reasonable doubts as to the correctness of the presumption. Strict proof of local and neighbourhood custom is not necessary (E. 4.4.1 and 4.4.3). Indications may include comparable properties, statistical data and the duration of the previous tenancy, although it is not necessary for the landlord to list at least 5 comparable properties and for the statistical data to fulfil the requirements of Art. 11 para. 1 VMWG (E. 4.3). If the presumption is rebutted, it is up to the tenant to provide strict proof of the abusive nature of the initial rent (E. 6.2.2).

The Federal Supreme Court found that the legislator intentionally did not regulate multiple employment in the case of pensions in Art. 24 UVV, which is why the provision cannot be interpreted beyond the wording based on Art. 23 para. 5 UVV (E. 5.2.3). A breach of the principle of equivalence is not justified, which is why secondary employment is irrelevant for the assessment of the insured salary (E. 5.3). Although the old version was still applicable to the present case, it can be assumed that the case law also applies analogously to the current version. It is unclear whether the Federal Supreme Court would have ruled in the same way in the event of an accident on the way to work (E. 5.3).

According to Art. 7 para. 2 NCHA, an expert opinion must be obtained from the ENHK in the event of significant impairment. The expert opinion may only be deviated from for valid reasons, i.e. if there are interests of equal or greater national importance (E. 4.1.3 and E. 4.5). The assessment of national importance must be carried out in two stages, with the Federal Supreme Court concluding that the disposal of waste does not outweigh the preservation of the protected landscape (E. 4.5.2 f.).