Federal court case law 1st quarter 2025

With regard to the conversion of the joint ownership into condominium units and their allocation to the respective partners, the question arose in the present case as to whether and, if so, to what extent a sale and the associated property gains tax exists (E. 5). Firstly, even after the division into ordinary co-ownership shares and their allocation to individual members in connection with the dissolution of a community of joint ownership, in particular a simple partnership, there is no connection under company law, but only a connection under property law between the previous members. The community of joint or co-owners can also grant one of its members a legal position comparable to a special right by contract or by means of easements, even if these arrangements may not be as stable as condominium ownership. the creation of such mandatory or limited rights (and possibly obligations) does not constitute a sale of the joint or co-ownership share (E. 5.2.4). According to the practice of the Federal Supreme Court, an economic sale pursuant to Art. 12 para. 2 lit. a StHG requires that the full right in rem is transferred, which was not the case here. Therefore, an application of Art. 12 para. 2 lit. a StHG to the transaction to be assessed here was ruled out (E. 5.3.2). It should therefore be noted that although the allocation of condominium ownership shares, as well as ordinary co-ownership, is subject to a tax settlement, this is limited to quota shifts between the previous members of the simple partnership (E. 5.3.3).

In the present case, the canton had determined that if the main corporate decisions were made at a specific location in its cantonal territory, at least to a significant extent, and the management of the business was carried out, substance from outside the canton would not be detrimental to its tax claim under harmonised cantonal tax law (E. 4.5.2). Due to the fact that the managing director managed the complainant's business and made the main corporate decisions for it and that he most likely did this primarily at his property in the canton of St. Gallen, the Federal Supreme Court concluded that the place of actual management of the complainant was in the canton of St. Gallen during the tax periods in dispute and that the complainant was therefore subject to unlimited tax liability there under harmonised cantonal tax law (E. 4.5.3). Since the complainant was therefore also subject to unlimited tax liability in the canton of St. Gallen after she had already been taxed in the canton of Zug (E. 5), the assessments for the tax periods 2017 to 2020, with which the canton of Zug comprehensively taxed the complainant's profits, violated the principles of intercantonal double taxation (E. 5.3).

In the present case, it was disputed whether the lower court, following the court experts, was right to assume that until the completion of therapeutic measures (still to be carried out) the appellant - subject to this reservation - was 50 per cent unfit for work; furthermore, whether the award of half a disability pension on this basis was in accordance with federal law (E. 2). According to the Federal Supreme Court, the lower court did not violate federal law under the given circumstances by refraining from examining in detail the derivation of the certified incapacity for work on the basis of the relevant indicators (E. 4). The fundamental treatability of a health impairment does not exclude from the outset an inability to work and thus a disability giving rise to a pension (E. 5.1.3). Since in the present case the person concerned does not have it in his own hands to become fully able to work by simply seeking medical treatment on his own responsibility and the consequences of the health impairments cannot be overcome from an objective point of view within the meaning of Art. 7 para. 2 second sentence ATSG, the Federal Supreme Court affirmed a provisional pension entitlement (E. 5.2.2). The degree of disability corresponds to the difference between the hypothetical earned income without disability set at 100 per cent and the disability income estimated at a correspondingly lower percentage (here corresponding to the incapacity to work of 50 per cent) (E. 6).

According to the Federal Supreme Court, the present case is neither a model case of older homeowners who now have an oversized property after the children have moved away or the spouse has died, nor is there a case of hardship that could justify a deduction on the imputed rental value in the form of a deduction for underutilisation. Rather, the takeover of the property by the taxpayer as part of the property settlement was equivalent to a voluntary new purchase, which ruled out a sub-utilisation deduction (E. 3.2). By affirming the possibility of a sub-use deduction in this constellation in principle, the lower court therefore violated Art. 21 para. 2 DBG and thus federal law (E. 5.2). With regard to the Zurich provisions on the deduction for underutilisation, which are in line with the corresponding principles of federal law, reference can be made to the relevant comments on the DGB (E. 6.3).

It is not sufficient for the consignment to reach the recipient's sphere of influence if there are special delivery regulations. In this case, according to the Federal Supreme Court, the actual receipt by the addressee is decisive (E. 4.1). The time limit for lodging an appeal therefore begins to run from the time at which a party is in possession of all essential elements for the successful protection of its rights in accordance with the principle of good faith, even in the event of defective notification. If the legal representative is aware of such an opening defect, it must request the proper opening within a reasonable period of time or lodge an appeal (E. 4.3). In this situation, the proper notification to the appellant's legal representative constitutes the event that triggers the time limit, irrespective of whether the decision - as in this case - was also notified to the appellant personally at the same time. The purpose of Art. 11 para. 3 VwVG is precisely to clarify, in the interests of legal certainty, which notification is relevant for the running of a time limit. (E. 5.1). It is irrelevant whether the legal representative waited a further three days before receiving the copy of the order addressed to her, as there is no obligation to collect a registered letter before the last day (E. 5.2).

The dispute in this case was whether the respondent fulfilled the residency requirement for election to the Council of States (E. 3). The concept of political domicile, as required by cantonal law for elections to the Council of States, is based on the concept of political domicile under federal law. In the absence of deviating cantonal regulations, the circumstances on election day are decisive. Political residence in the canton is therefore an eligibility requirement for elections to the Council of States (E. 3.2). The legal requirement is not a sufficiently close connection to the canton, but the existence of a residence in the canton (E. 5.3). In the present case, the respondent did not move his centre of life and thus also his political domicile from Zurich to Schaffhausen at the time of the election (E. 5.6). Elections to the Council of States under Schaffhausen law are a majority election and therefore a personal election. In the absence of a statutory provision, it is justifiable to fall back on the principle according to which by-elections are normally held for retiring members in majority elections (E. 7).

In the present case, it was disputed whether and, if so, to what extent the new fluctuation reserve formed by the complainant on its securities portfolio in the financial year from 1 January to 31 December 2019 was to be recognised as a business-related expense for tax purposes.

According to case law, hidden profit distributions or other asset dispositions by the sole director or managing director and sole shareholder at the expense of the one-person company limited by shares, which are incompatible with the duty to manage the company's business with due care, fulfil the objective offence of mismanagement within the meaning of Art. 158 SCC if the net assets of the company limited by shares are thereby affected to the extent of the share capital and the tied reserves (E. 1.2.4). However, according to the Federal Supreme Court, a company can also be damaged if it has no net assets at the time of the offence because its debts (borrowed capital) exceed its gross assets. Consequently, over-indebted companies can also be victims of property offences. The scope of protection of Art. 158 SCC therefore does not only cover the net assets (assets less liabilities), but also the entire gross assets of the company, i.e. the sum of all assets (E. 1.3.2).

In the present case, the appellant complains that the lower court violated Art. 311 para. 1 and Art. 318 para. 1 ZPO because it accepted the respondent's appeal despite an inadmissible appeal request (E. 4). In this regard, the Federal Supreme Court agrees with the lower court with reference to para. 64 of the appeal, where the respondent explicitly stated that "[s]hould the higher court, as hoped, assess the question of litispendency within the meaning of para. 16 et seq. of this appeal [affirmation of litispendency], it appears factually and legally appropriate that non-admission due to a lack of procedural requirements pursuant to Art. 59 para. 2 lit. d ZPO [...] be ordered". It is thus sufficiently clear in good faith that the respondent demanded that its action for revocation not be upheld due to other lis pendens (E. 4.1.2). The Federal Supreme Court assumes a two-part concept of the subject matter of the dispute for the identity of the subject matter of the dispute in the case of the so-called negative effect of substantive res judicata (Art. 59 para. 2 lit. e ZPO) (E. 5.2.2). Under the ZPO, there is no compelling reason to base the concept of substantive res judicata and that of lis pendens on different concepts of the subject matter of the dispute in the internal relationship. The objective limits of lis pendens in the internal relationship are therefore also determined according to the two-part concept of the subject matter of the dispute (E. 5.2.13). Furthermore, it had to be examined whether the claims asserted in the two proceedings (from the share purchase agreement and from the loan agreement) were also identical according to the two-part concept of the subject matter of the dispute (E. 6.3.2). The respondent's action for revocation in the (first instance) proceedings, which concerned the non-existence of the loan claim, was already included in the respondent's first action (cancellation or waiver of the loan claim plus interest) in the warranty in kind proceedings. According to the Federal Supreme Court, there was therefore an identity of claims (E. 6.3.2) and the action for cancellation was rightly dismissed (E. 6.3.3).

In the present case, it was disputed whether the special ground for detention of the qualified risk of recidivism is applicable at all to offences against the Narcotics Act (E. 2). According to the Federal Supreme Court, the legislative process for Art. 221 para. 1bis of the Code of Criminal Procedure and the case law suggest that the qualified risk of recidivism should only cover serious violent offences against individual interests (E. 2.3.3). It cannot be ruled out that offences against the NarcA, primarily those under Art. 19 para. 1 lit. c NarcA, possibly in conjunction with a qualifying feature under para. 2, may lead to a concrete impairment of a person's physical or psychological integrity. With the exception of such cases, however, the application of Art. 221 para. 1bis of the Code of Criminal Procedure to narcotics offences is excluded (E. 2.4.1). In the case of an offence against the NarcA, there is therefore no immediate danger to high-value individual legal interests. For this reason, narcotics offences cannot in principle constitute a qualified risk of recidivism (E. 2.4.2).

In connection with disputes regarding electricity tariffs, the Federal Supreme Court states that it is the task of ElCom to rule on such disputes and, in this context, to examine whether the tariffs set by the distribution system operators are lawful and correctly applied (E. 4.2). If the tariff revenues of a distribution system operator - e.g. in 2015 - are higher or lower than the chargeable actual costs resulting retrospectively from the cost accounting (for 2015), the excess or shortfall in revenue must be compensated for via coverage differences in subsequent years when setting future tariffs (E. 4.3). With regard to lawful tariffs, the Federal Supreme Court confirms that the term "lawfulness" cannot mean anything different in the individual tariff review procedure pursuant to Art. 22 para. 2 lit. a StromVG (dispute) than in the procedure pursuant to Art. 22 para. 2 lit. b StromVG (ex officio review). In both cases, lawfulness includes in particular that the tariffs are cost-based, which is determined on the basis of the chargeable costs within the meaning of Art. 14 f. StromVG (E. 5.5.1). In principle, the values and information recorded in ElCom's reporting tool represent a suitable basis for the (two) tariff review procedures pursuant to Art. 22 para. 2 lit. a and lit. b StromVG. A comparison with the documents from the accounting system or the bookkeeping of the distribution system operator can be carried out selectively. A detailed examination is only mandatory if there are indications or ElCom has doubts that the cost accounting or the declared values and information are incorrect. In this sense, ElCom has a certain discretionary power to carry out an audit, which it must exercise dutifully (E. 5.6.2).

With reference to the recent ruling 6B_262/2024 of 27 November 2024, the Federal Supreme Court reiterates that the declarations contained in the Covid-19 loan application form are very different in nature. With regard to the assurances that the company was "significantly impaired economically by the Covid-19 pandemic, in particular with regard to its turnover" and that the borrower would use the loan granted exclusively to secure its current liquidity needs, the document did not enjoy increased credibility within the meaning of the case law on false certification (E. 2.4.1). In the present case, the Federal Supreme Court confirmed the guilty verdict of the lower court with regard to the forgery of documents, in that the complainant stated too high a turnover in the Covid-19 credit application form and thus wanted to obtain the payment of a higher Covid-19 credit (E. 2.5). The complainant's deception was fraudulent. The Federal Supreme Court justified this by stating that the Covid-19 bridging aid was deliberately designed to be unbureaucratic and that, thanks to the simplified processes and the granting of loans on the basis of self-declaration, numerous SMEs struggling to survive were able to receive liquidity assistance quickly. Although it would theoretically have been possible to verify the information on sales revenue, for example on the basis of accounting documents, the purpose of the Covid-19 loan, i.e. the quick and unbureaucratic support that had become necessary, was not provided for in the Covid-19 Solidarity Guarantee Ordinance, at least for loans of up to CHF 500,000 (E. 3.4.2). In addition, the Federal Supreme Court also confirmed the financial loss through triangular fraud (E. 3.4.3).

With reference to the guidelines issued by the FSIO on pensions (RWL) in the Federal Old Age, Survivors' and Invalidity Insurance, the Federal Supreme Court states that the court does not deviate from administrative directives in the present case without good reason if these represent a convincing concretisation of the legal requirements. Rather, this takes account of the administration's endeavours to ensure equal application of the law through internal directives (E. 4.3). In the present case, it was disputed whether a debtor instruction under Art. 132 ZGB on the one hand differs sufficiently from those under Art. 177 or Art. 291 ZGB on the other hand from a social insurance law perspective to justify different treatment (E. 5.2). In Art. 132 para. 1 ZGB, civil law, aware of the fact that the marital union ends with the divorce, stipulates that the civil court can order the debtor of the person obliged to pay maintenance to make the payments in full or in part to the entitled person. According to the Federal Supreme Court, there are no specific reasons why social security law should deviate from the judgements of civil law in the present context (E. 5.4). Consequently, an order issued by the civil court on the basis of Art. 132 of the Swiss Civil Code for the third-party payment of part of the benefits due to the insured person is to be treated in the same way as an order issued on the basis of Art. 177 or Art. 291 of the Swiss Civil Code (E. 5.5).

In the present case, the Federal Supreme Court had to deal with the question of whether the rejection of the free administration of justice can still be challenged retrospectively with the final decision of the first instance. It stated that this was not a legal question of fundamental importance and that the complaint should instead be treated as a subsidiary constitutional complaint (E. 1.3.3). In the present case, the Federal Supreme Court follows the prevailing opinion, according to which the legislator's decision in favour of an obligation to challenge is implicitly to be seen in the direct possibility of challenge provided for by law. Accordingly, the independently issued qualified procedural ruling can no longer be contested with the final decision after the expiry of the appeal period (E. 2.2.3). Accordingly, the Federal Supreme Court dismissed the subsidiary constitutional complaint in this respect (E. 3).

In the present case, it was disputed whether a decision by the Cantonal Council on a cantonal expenditure fell within the sole competence of the Cantonal Council or was subject to a financial referendum (E. 3.2). In this regard, the Federal Supreme Court stated that it was undisputed that the cantonal council decision in question was a new, one-off expenditure within the meaning of the constitutional provisions of Art. 74 para. 1 lit. a of the Constitution of the Canton of Solothurn of 8 June 1986 in conjunction with Art. 80 para. 1 KV/S. Art. 80 para. 1 KV/SO. The legal question to be answered was whether the decision concerned a "road project" within the meaning of § 8ter para. 4 SG/SO and therefore did not have to be subject to a referendum (E. 3.4). The Federal Supreme Court stated that even if one assumes a very broad definition of a road and considers road projects within the meaning of § 8ter para. 4 SG/SO to include not only those relating to the actual road carriageway but also cycle paths and footpaths, ancillary road facilities and expenses for their realisation, railway facilities are nevertheless not included (E. 3.8). In the present case, the approved credit included CHF 5,543,676 for railway installations. This sum also exceeded the threshold of CHF 5 million, above which Art. 35 para. 1 lit. e KV/SO prescribes a mandatory referendum for resolutions of the Cantonal Council on new one-off expenditure. The decision should therefore have been subject to a mandatory referendum (E. 3.9).

In this decision, the Federal Supreme Court deduces from the legislative history of Art. 15 aEnG that the term "agreement" is to be understood as the consent of the federal authority. With regard to the canton concerned, the presumed agreement is not an agreement, but an instrument of coordination (E. 4.5). In the present case, it was disputed whether the recurring operating and maintenance costs associated with the implemented remediation measures within the meaning of Art. 83a GSchG or Art. 10 BGF are also considered "costs for the measures" (E. 5.4). The Federal Supreme Court based its judgement on the report of the UREK-S and stated that it did not indicate that the operating and maintenance costs were costs within the meaning of Art. 34 EnG (E. 5.6.1). This task is the responsibility of the operators of the hydropower plants and represents an aspect of the legally compliant exercise of the licence activity (E. 5.7). Taking into account all elements of interpretation, it follows that the operating and maintenance costs are not considered "costs for the measures pursuant to Art. 83a GSchG and Art. 10 BGF" (E. 5.8).

The Federal Supreme Court had to deal with the question of whether individual condominium owners can challenge the resolution of the condominium owners' association in favour of enforcing the regulations of the condominium owners' association (E. 2.3.3). Doctrinal opinions that comment on this question affirm an obligation to enforce the regulations through legal action if necessary (E. 2.3.4). In the present case, the disputed installation of the floor coverings only affected the relationship between the condominium unit in question and the complainants' condominium unit. Community interests were not affected. As directly affected owners, the complainants have the option of taking action against disturbing immissions in accordance with Art. 679 in conjunction with Art. 684 ZGB. Art. 684 ZGB. The Federal Supreme Court refrains from assessing the risk of evidence in the context of an action based on Art. 679 in conjunction with Art. 684 ZGB. Art. 684 ZGB and assesses this as a reasonable legal remedy available to the complainants (E. 2.4).

In the present case, the Federal Supreme Court had to judge a case in which the FCA had been deceived about the conditions for the granting of guarantees by the fact that the companies reported an excessively high share capital in their balance sheets. This deception had led to guarantees being granted in favour of the shipping companies, which had secured full debt financing for the ships (E. 8.2.3). The Federal Supreme Court disagreed with the assessment of the lower court on the point that guarantees in accordance with the Guarantee Ordinance also fall under Art. 14 para. 1 VStrR when the offence of fraudulent performance is involved (E. 9.2). It summarises that, according to the applicable law, the offence of performance fraud is only committed by anyone who prevents the withdrawal of one of the benefits expressly mentioned in Art. 14 para. 1 VStrR (i.e. licences, permits or quotas). By declaring this variant of the offence applicable to guarantees in accordance with the Guarantee Ordinance, the lower court violated federal law (E. 9.6.6). False balance sheets in terms of content fulfil the objective offence of forgery of documents in the offence variant of false certification pursuant to Art. 251 para. 1 SCC (E. 10.4.2). With the registration form to the commercial register containing false information and the other documents attached - in addition to the initially fraudulent document - an independent deception of the commercial registrar was obtained, which is why there is no unpunishable predicate offence to the subsequent fraudulent obtaining of a false certification by registering the share capital increase with the commercial register office (E. 11.3.3). In connection with obtaining fraud, the general clause of Art. 14 para. 1 VStrR means that any performance attributable to the public sector can be considered as a disposition to perform (E. 12.4.2). The realisation of the offence of benefit fraud under Art. 14 para. 1 VStrR does not require the existence of financial loss (E. 12.4.5). The intercompany loans were contrary to the interests of the Swiss subsidiaries because these loans were made from the protected equity capital and the repayment to the Swiss subsidiaries was highly jeopardised. The Federal Supreme Court affirmed the intent on the basis of the expertise and responsibility of the managing director and thus affirmed the application of Art. 158 SCC (E. 14.5.4). If the assets subject to confiscation are no longer available, the court will recognise a claim for compensation by the state in the same amount. Consequently, the substitute claim is in principle subject to the same conditions as the confiscation. While such substitute claims are inadmissible against uninvolved third parties, they are admissible against assets that are economically owned by the accused person, for example because they have been transferred to a "straw person" through a fictitious transaction (E. 21.2.3). The Federal Supreme Court also stated that 434 of the Code of Criminal Procedure is designed as a causal liability (E. 23.4.2) and in this context denied the existence of a direct causal link between the criminal proceedings conducted against complainant 1 and the personal injury (allegedly) suffered by complainant 2 (E. 23.4.3).

In this case, there was a supplier credit insurance policy between the complainant and the respondent (SERV). There was also a working capital insurance policy between SERV and the financial institution. It was disputed whether the respondent should have paid an insurance benefit under the supplier credit insurance and whether the complainant could have offset this against the claim under the working capital insurance. Referring to its previous statements on the predecessor provision, Art. 11 SERVG, the Federal Supreme Court stated with regard to Art. 17 para. 1 SERVG that compensation could only be considered if the existence and scope of the claim of the Swiss exporter was bindingly established, either because it was recognised by the debtor or because a court had ruled on it (E. 7.2.1). Furthermore, the Federal Supreme Court also affirmed the reasonableness of the judicial determination of the claim in the country concerned by referring to the general terms and conditions for supplier credit insurance. In the absence of a judicial determination, the Federal Supreme Court came to the conclusion that no insurance benefit was owed (E. 7.5.2). Consequently, the defence of set-off raised by the complainant with regard to the reimbursement debt with its claim under the supplier credit insurance was unsuccessful, as the complainant also had no claim to the insurance benefit claimed under the supplier credit insurance (E. 8.5.1). The Federal Supreme Court also did not accept the defence of prevention of repayment within the meaning of Art. 156 CO, as the respondent, as stated above, had no contractual obligation to pay an insurance benefit (E. 8.5.2).

The Federal Supreme Court considered the scope of application of the AFMP to be open in the present case: Since appellant 2 lives and works in Switzerland as an Italian national (and does not also have Swiss nationality), the appellants can in principle invoke a derived right of residence of appellant 1 and the provision on family reunification under the law on the free movement of persons pursuant to Art. 3 para. 1 Annex I AFMP (E. 5.4). The status of a family member who is granted maintenance arises from a factual situation characterised by the fact that the necessary maintenance of the family members is materially ensured by the person entitled to residence, at least in part and regularly to a certain degree (E. 6.1). In the present case, it was not proven that Appellant 2 had provided maintenance within the meaning of Art. 3 para. 1 and 2 lit. b Annex I AFMP and the entitlement to family reunification was therefore denied (E. 6.5).

At issue in this case was the formal validity of the advance care directive and the question of whether it was governed by cantonal law in accordance with Art. 55 SchlT ZGB or whether the involvement of two witnesses analogous to Art. 499 et seq. ZGB is required. To make the validity of the advance care directive dependent on the involvement of two witnesses would mean extending the formal requirements beyond the wording of the law. This is not compatible with the requirement to protect the parties in their trust that the law will be followed as literally as possible (E. 3.5.1). Applying the pragmatic pluralism of methods, the Federal Supreme Court comes to the conclusion that the wording of Art. 361 para. 1 CC is unambiguous insofar as no reference to Art. 499 et seq. ZGB can be inferred from it. Finally, it comes to the conclusion that the public notarisation of the advance care directive is governed by cantonal law (E. 3.5.5).

The enactment known as the Federal Law on Insurance Contracts or Insurance Contract Law (VVG) also includes further provisions on legal relationships with third parties who are not parties to the insurance contract in addition to the direct contractual rules (E. 2.4.5). The protective concept intended by the partial revision cannot justify a different treatment of injured third parties and policyholders under transitional law, but on the contrary speaks in favour of their uniform treatment (E. 2.4.6). In the present case, this means that only the provisions of the new law listed in Art. 103a VVG are applicable to the insurance contract concluded before the amendment of 19 June 2020 came into force. A retroactive effect of other provisions of the new law - in particular with regard to the direct right of claim pursuant to Art. 60 para. 1bis VVG - is excluded by law (E. 2.4.8).

In the present case, the question arose as to whether freezing orders authorise the definitive opening of legal proceedings before they have become formally legally binding (E. 5). Pursuant to Art. 169 para. 1 sentence 2 DBG, freezing orders are immediately enforceable. However, it is not compatible with the ratio legis of Art. 169 para. 1 sentence 2 DBG to intervene in the taxpayer's property and realise it before an administrative court seised has made a substantive decision on the requirements for seizure. The debt enforcement proceedings for the provision of security can therefore only be continued once the freezing order has become final. Accordingly, only the legally binding freezing order constitutes a definitive title of legal seizure within the meaning of Art. 80 para. 2 no. 2 SchKG (E. 6.3.6).

In the present case, the Federal Supreme Court, in agreement with the lower court, affirmed an offence within the meaning of Art. 221 para. 1bis of the Code of Criminal Procedure, in that the complainant had not only carried a folding saw with him during the robberies allegedly committed by him, but had also used it to threaten his victims. This was accompanied by the risk that he could use it in a critical situation and thus seriously injure or even kill the victim. The Federal Supreme Court thus assumed an abstract and, in its concrete execution of the offence, serious offence directed against high-value legal interests, without definitively qualifying the folding saw as a weapon within the meaning of Art. 140 no. 2 SCC (E. 4.5). In addition, the Federal Supreme Court affirmed the risk of recidivism pursuant to Art. 221 para. 1bis lit. b of the Code of Criminal Procedure by relying on the psychiatric report of the lower court, which predicted a risk of recidivism and thus an extension of pre-trial detention (E. 5.2).

At issue in this case was the subject matter jurisdiction of the review action pursuant to Art. 105 para. 1 FusG. The Federal Supreme Court held that the Merger Act was a case of application of the so-called decodification, which should actually be covered by the codification of private law and was split off into a special law under private law. Following a systematic interpretation, it concludes that the decodification implemented with the enactment of the FusG cannot have the consequence that actions under the FusG are no longer considered to be those under the "law of commercial companies". In terms of legislative history, the Merger Act is also "not a legal microcosm", but must be interpreted in conjunction with the norms of the law of obligations, to which merger law belongs in terms of subject matter (E. 2.4.3). From a teleological point of view, the Federal Supreme Court also considers it lawful to designate the Commercial Court as having jurisdiction in such disputes on the basis of its industry expertise or specific knowledge of company law (E. 2.4.4).

The restriction of authorisation to practise the profession at the expense of the OKP is aimed at slowing down the rise in healthcare costs and thus health insurance premiums (E. 7.3.1). According to established case law, the needs clause of Art. 55a KVG pursues a socio-political objective that is permissible with regard to economic freedom, whereby doctors in private practice cannot derive the right to provide services to an unlimited extent at the expense of social health insurance from economic freedom (E. 9; BGE 141 V 557 E. 7.1). A restriction of economic freedom by the ZulaV/BE cannot be recognised or would already be justified by Art. 55a KVG (E. 9). The ZulaV/BE also does not violate the right to basic medical care, as on the one hand authorisation is only restricted where demand is covered or those outpatient specialties of basic care are promoted in which there tends to be a shortage of doctors (E. 10.3). Furthermore, the Federal Supreme Court held that the restriction is neither arbitrary (E. 14.1 ff.) nor in breach of the principle of good faith (E. 15.1 ff).

The protection of sources for media professionals is absolute, i.e. there is no balancing of conflicting interests if the offence to be investigated is not listed in the list of exceptions in Art. 172 para. 2 of the Code of Criminal Procedure (E. 3.3.1). The term "persons involved" within the meaning of Art. 172 para. 1 of the Code of Criminal Procedure includes not only journalists in the strict sense, but also all persons who are involved in the preparation, production and distribution of media products if, due to their activities, they could become aware of details protected by editorial secrecy (E. 3.4; E. 4.1.1). The legislator generally prioritises the relationship of trust between an informant and a media professional over the need to clarify the facts in criminal proceedings. Media professionals only have to disclose their source if the legal and fundamental rights requirements for this are met. As the offence of breach of official secrecy is not covered by the list of exceptions in Article 172 paragraph 2 of the Code of Criminal Procedure, the protection of sources applies without restriction in this specific case (E. 4.1.2).

The surviving spouse could not exert any influence on a premarital waiver because the waiver took place at a time when the deceased was not yet subject to a marital maintenance obligation. In principle, it is difficult to reconcile the premarital waiver of assets by the deceased spouse with the stated purpose of the law. In contrast to an unproven reduction in assets, these are actual debts, the offsetting of which is clearly regulated by law (E. 6.3).

In the present case, it was disputed whether the request for the unlock code constituted an actual interrogation of the accused within the meaning of Art. 157 et seq. of the Code of Criminal Procedure and whether a corresponding notice should therefore have been mandatory. The collection of an unlock code from an accused person during the house search (and therefore when there is already suspicion of an offence) as part of informal questioning - without prior instruction within the meaning of Art. 158 para. 1 of the Code of Criminal Procedure - constitutes an inadmissible undermining of the "nemo tenetur" principle. This means that the evidence cannot be utilised in accordance with Art. 158 para. 2 of the Code of Criminal Procedure (E. 2.5.1). In casu, a strict remote effect was not assumed and the application of Art. 141 para. 4 of the Code of Criminal Procedure was affirmed (E. 2.5.2). It was also necessary to assess whether the threshold for an attempt had already been reached. The Federal Supreme Court stated that the threshold for attempted coercion had not been reached in this case, even with regard to a "general" meeting, at least as long as neither a specific meeting place nor a specific time for the meeting had been agreed (E. 3.4).

The revision of Art. 236 of the Code of Criminal Procedure renders the Federal Supreme Court's case law on the responsibility for deciding on the relaxation of sentences in the early execution of sentences or measures obsolete. The cantonal enforcement authorities are therefore now responsible for deciding on the relaxation of sentences in the early execution of sentences or measures in accordance with the cantonal provisions. The director of proceedings may - under both the old and the new law - officially return the accused person in early release to pre-trial detention or preventive detention if the conditions for early release subsequently cease to apply, for example because a new risk of collusion has arisen. The same must apply if an accused person who was granted early execution of a sentence under the old law could no longer be authorised under the new law (E. 3.7).

The animal owner is responsible for the medical treatment of the animal and also bears the costs. This also applies if the treatment is ordered by the authorities. Article 24 para. 1 TSchG thus standardises a legal case of substitute performance (E. 5). In the present case, the prior search for the owner could be omitted due to the emergency situation and the authority was therefore authorised to carry out the substitute measure immediately without a prior order (E. 5.3). In the present case, a legal relationship under private law thus arose between the public authority to which the police belong and the complainant (E. 5.4). Consequently, the official intervention within the meaning of Art. 24 para. 1 TSchG did not give rise to a legal claim under public law against the municipality for payment of the costs of the veterinary treatment (E. 5.5).

Cost allocation orders regarding contaminated sites can be issued in a staggered manner. It is possible that the cost shares (as a percentage) are first decreed before the exact costs and therefore the amounts to be paid are known. In this case, a second decree is required once the final statement of account is available, which sets out the definitive amounts once the total costs of the remediation are known (E. 3.4.1). Analogous to a creditor of a claim for damages under civil law, the bankruptcy petition does not have to be quantified. Due to the indefinite duration of the financial impact of the circumstances, in this case the reorganisation, the claim can and must then only be sufficiently substantiated in order to be admitted to the schedule of claims, which is carried out as part of a "plausibility check". This is the only way to fulfil the polluter-pays principle in accordance with the USG - in the event of bankruptcy of the polluter in the case of an indefinite duration of the restructuring and its costs (E. 3.4.4). Art. 42 para. 2 CO also has an important function outside of tort law in the sense of an analogous application, where adherence to strict proof would also result in a frustration of the respective legal position; the analogous application is also affirmed in public law if action is necessary within a deadline (E 3.4.6). The facilitation of the burden of proof provided by Art. 42 para. 2 CO also entails a restriction of the burden of proof and substantiation [of the remediation costs] (E. 3.5). The claim for costs under the law on contaminated sites arises when the environmental damage is caused (prior to the opening of bankruptcy proceedings) and is collocatable (E. 3.8).

By transferring assets during his lifetime to a trust company with legal capacity and assets, while at the same time irrevocably waiving any rights to the trust assets, the testator has disposed of his assets during his lifetime. They were excluded from his assets and therefore do not form part of his estate (E. 5.4.2). The trust company in question cannot be equated with a one-man stock corporation and therefore does not justify any recourse (E. 5.4.3.2.2.).

The primary criterion for differentiation from an individual form of accommodation is whether a range of services typical of residential homes is provided (E. 5.2 and E. 5.3). An individual flat in a block of flats can therefore also be considered a home within the meaning of Art. 35ter IVV, provided that it is provided by an organisation that also offers a wider range of services that have the relevant material characteristics of a home (E. 7.1.2). The scope and intensity of the care services provided by the facility must be taken into account when assessing the character of the home. In the present case, the outpatient care services provided three times an hour and 15 minutes per week exceed the relevant materiality threshold of two hours (E. 7.2). Furthermore, the costs for the accompaniment are expressly regulated in the contract for outpatient residential support (E. 7.3).

With a protective brief, a party can pre-empt a super-provisional measure by submitting its counter-arguments to the court in the protective brief as a precautionary measure in the event that the feared application for super-provisional measures is actually filed (E. 4.5). If a corresponding application is received and the court comes to the conclusion that the requested measure cannot be ordered on a super-provisional basis, taking into account the arguments put forward in the protective brief, it will proceed to adversarial proceedings in accordance with Art. 253 ZPO, in which it must be examined whether the requested measure (if not super-provisional, then at least) can be ordered on a precautionary basis (E 4.5.1). If the court comes to the conclusion that the requested measure can be ordered on a super-provisional basis despite taking into account the arguments presented in the protective brief, it will order the super-provisional measure in the first stage. In this case, it is sufficient to notify the applicant of the protective brief only with the decision to issue the super-provisional measure (E. 4.5.2). In the present case, the lower court rejected the application for super-provisional measures without informing the applicant of the protective brief and giving her the opportunity to comment. The required procedure was not observed in the present case and thus the applicant's right to be heard was violated (E. 4.6).

Simplified subsequent taxation in inheritance cases presupposes that the tax authorities are unaware of the "tax evasion", from which the requirement for an application or notification obligation on the part of the heirs can be derived. The decisive factor is the level of knowledge of the tax authorities at the time at which any notification of the sole heir/heiress is made (E. 4.2.3).

The Federal Supreme Court first explained the screening method, which represents the "first step" of the efficiency check (E. 5.4) and the "second step" of the efficiency check, the individual case examination (E. 5.5). An action for reimbursement must be based on the results of the individual case review by the health insurers (E. 6.4.4.; E. 5.6). If the procedure deviates from the specifications agreed in the tariff partnership, there is a methodological violation of Art. 56 para. 6 KVG (E. 6.4.4). Group practices may be measured against a comparison group that is predominantly made up of individual practices, as the costs per patient are decisive (E. 8.1). If relevant "pharmaceutical cost groups" (PCG) were not taken into account in the screening procedure, this does not prejudice the subsequent assessment in the individual case (E. 8.2). Extended opening hours in themselves do not constitute a significant speciality of the practice. However, they must be taken into account as cost-effective if this results in an expansion of medical care (E. 9.1.2). Delegated psychotherapy is offered outside of basic medical care and is subject to a separate performance audit, but only if the psychotherapeutic services have not already been approved for reimbursement (E. 9.2.2). A psychosomatic and socio-medical orientation of the practice as such does not in itself constitute a speciality of the practice; however, it can lead to a comparatively larger proportion of cost-intensive patients, which in turn should be taken into account (E. 9.2.3).

According to the case law of the Federal Supreme Court, assessment errors are not to be corrected but asserted by means of an appeal. If the authority has no (further) right of appeal, the assessment procedure must be retained, except in absolutely exceptional cases (E. 3.3.3.4). The postulate of increased legal certainty that applies in VAT law precludes reconsideration or revocation of a legally binding assessment notice, a legally binding ruling or a legally binding objection decision (E. 3.4.2).

If the company requests the deletion of a position on the grounds that it is not relevant to the subject matter of the investigation, it must first demonstrate that the position violates its business secrets or interests worthy of protection (E. 3.4).

In this case, the relationship between the European antitrust law adopted by the Air Transport Agreement (ATA) and Swiss antitrust law, including the sanction provision of Art. 49a para. 1 CartA, was disputed (E. 5.5). After interpreting Art. 11 para. 2 FCA, the Federal Supreme Court came to the conclusion that the provision does not exclude the application of national law insofar as national law serves to enforce Art. 8 et seq. FCA and that it does not contradict the provisions of the FCA and the European antitrust law thus adopted (E. 5.6). The Federal Supreme Court held that the exchange of information on fuel surcharges constitutes an agreement within the meaning of Art. 8 para. 1 FCA in conjunction with Art. 4 para. 1 CartA. Art. 4 para. 1 KG. The companies concerned generally wanted to exchange information with their competitors and did so in order to be informed about the planned or already completed steps of their competitors (E. 8.5.1.1; E. 8.5.1.3). The exchange of information (E. 8.5.2.2) and the non-commissioning of surcharges (E. 8.6) were at least capable of having as their object, if not their effect, a restriction of competition in the introduction and modification of fuel surcharges (E. 8.7). Although the assessment and calculation of the sanction was not contested, the sanction was nevertheless reduced due to the violation of the acceleration requirement in the appeal proceedings before the Federal Administrative Court (E. 12.4.1; E. 12.5).

In accordance with the interpretation under civil law (E. 4.2.1), only the executor of the will is authorised to conduct the proceedings in post-tax proceedings. On the other hand, the heirs must be granted those procedural rights that are essential to safeguard their interests as jointly and severally liable tax debtors (E. 5.3.3).