Federal court case law 2nd quarter 2023

Unemployment insurance (bridging benefits) This decision concerned the controversial question of whether or not contribution periods completed abroad should be taken into account when calculating the minimum insurance periods. The contribution periods completed in an EU member state are not to be taken into account if the bridging benefits can be qualified as early retirement benefits within the meaning of Regulation (EC) No 883/2004 of the European Parliament and of the Council. The situation is different if bridging benefits are regarded as unemployment benefits, in which case they must be taken into account. Bridging benefits are benefits of a welfare nature in accordance with Art. 114 para. 5 of the Federal Constitution (unemployment benefits). They cover the period until the normal AHV retirement age is reached and reduce the risk of poverty before retirement age. This covers cases in which labour promotion no longer applies and pension insurance does not yet apply due to age. There are differences to unemployment insurance with regard to the eligibility requirements, the basis for calculation and the financing of bridging benefits. When viewed as a whole and also taking into account the relevant case law of the ECJ, there are several significant differences that allow bridging benefits to be categorised as early retirement benefits in accordance with Regulation No. 883/2004. Therefore, the contribution periods completed abroad are not to be taken into account when calculating the minimum insurance period. The Federal Supreme Court comes to the conclusion that bridging benefits are not unemployment benefits and confirms the decision of the Appenzell Ausserrhoden High Court. The appeal is dismissed.

In this case, the Federal Supreme Court confirmed the ruling of the Administrative Court, which had recognised a child relationship in Switzerland established under German law. The appellants claim, among other things, a violation of public policy pursuant to Art. 17 para. 1 IPRG and demanded the rejection of the recognition and registration of the child relationship of the respondent.

This judgement concerned a dispute arising from a loan agreement between A. AG, domiciled in Switzerland, and B. GbR, a civil-law partnership under German law with its registered office in Germany. In particular, the judgement concerned the plaintiff's right of choice pursuant to Art. 6 (3) ZPO.

Debt collection and bankruptcy law, schedule of claims A judgement of the cantonal supreme court was contested, which, as the appellate court, had to assess the interest in legal protection and the admissibility of the civil law claims in the context of a (negative) action to contest the schedule of claims (Art. 250 para. 2 SchKG). The plaintiffs in the action to contest the schedule of claims (complainants) form a voluntary joint venture within the meaning of Art. 71 ZPO. The first question was whether the plaintiff creditor had an interest in legal protection. If the anticipated bankruptcy dividend for a disputed claim is 0 % - as is to be expected in the specific case - it is unlikely that the action to contest the schedule of claims will result in any monetary gain from the proceedings. In the bankruptcy of legal entities that are to be cancelled after the bankruptcy has been carried out (Art. 159a HRegV), the question arises as to the plaintiff's interest in legal protection in the handling of the action to contest the schedule of claims. The interest in legal protection is only affirmed in exceptional cases (E. 2.3.5.). The Federal Supreme Court came to the conclusion that there was no exceptional case in the present case and that the appeal in civil matters should therefore be dismissed. Furthermore, the appellant had not been able to sufficiently demonstrate that the High Court had breached its duty to state reasons in accordance with Art. 29 para. 2 BV in connection with claims no. 5 and no. 6 (E. 3.4.).

Ecological balance, planning and building law (building permit for high bridge) In this case, the Federal Supreme Court dealt with the planned adaptation of a motorway connection (Freienbach high bridge). Local residents and a company were of the opinion that such a construction project should be authorised as part of a planning approval procedure. The lower courts were of the opinion that this was a structural redesign in the area of motorways within the meaning of Art. 44 para. 1 of the National Roads Act, which only required authorisation from FEDRO. The Federal Supreme Court held that such a construction project requires authorisation in the planning approval procedure for both the connection and the associated elevated bridge.

Criminal offences; unlawful receipt of social security or social assistance benefits; minor case The Federal Supreme Court had to decide whether A. had been rightly convicted and expelled from the country for unlawfully receiving social insurance or social assistance benefits within the meaning of Art. 148a para. 2 SCC. It was disputed whether this was a minor case of unlawful receipt of social insurance or social assistance benefits. The law does not define what constitutes a minor case of unlawful receipt of social security or social assistance benefits. Based on this, the Federal Supreme Court has determined the following values (E. 1.5.9): - CHF 3,000 or less: always a minor case - CHF 3,000 to CHF 35,999: must be assessed on a case-by-case basis. - CHF 36,000 and more: generally not a minor case, unless there are exceptional, particularly significant circumstances that lead to a massive reduction in fault.

State liability, solidarity contribution for victims of compulsory welfare measures and placements before 1981 A. was taken away from his mother shortly after his birth and placed in a foster family by the authorities. He was later adopted by his foster parents. At pre-school and school age, A. was physically abused, severely beaten and economically exploited by his foster parents. In an application dated 12 January 2018, A. asked the Federal Office of Justice to pay a solidarity contribution for victims of compulsory welfare measures and placements in Switzerland before 1981. The Federal Supreme Court had to decide how this application should be handled. The complaint was that the lower court had incorrectly applied Art. 2 AFZG. The Federal Office of Justice was of the opinion that the integrity violations occurred after A.'s adoption. With the adoption by the former foster parents, the respondent was no longer a "stranger" but had become the adoptive family's "own" child with the act of adoption. Accordingly, from the time of the adoption, there was no longer an external placement within the meaning of Art. 2 lit. b AFZFG (E. 4.1.). The Federal Supreme Court ruled that it can make no difference to the child placed by the authorities in a foreign family whether this family committed the integrity violations before the adoption as a foster family or only after the adoption as an adoptive family. The relevant definition of the term suggests that in the case of children who are initially placed by the authorities and later adopted by the parents of the same family, the adoptive family is to be regarded as foreign from the child's perspective even after the adoption (E. 4.6.3.).

Political rights, voting rights; "Hochdorf heizt erneuerbar - ab 2030 erst recht" municipal initiative In this decision, the Federal Supreme Court had to judge whether the initiative "Hochdorf heizt erneuerbar - ab 2030 erst recht" violates property rights. According to the case law of the Federal Supreme Court, there is generally no entitlement to the retention of a legal system once it has been established. The initiative request merely sets a target that is binding on the authorities; it is silent on how to achieve the target. The question of whether the measure demanded by the initiative can be regarded as a proportionate encroachment on the guarantee of property depends on how high the anticipated conversion costs are and who has to bear them. In the present case, if the initiative is accepted, it should be possible for the competent authorities to find a solution for bearing the costs that is compatible with the guarantee of ownership and vested rights in the remaining time within the framework of the implementing legislation.

Political rights, voting rights; municipal initiative "Hochdorf is ready for emission-free vehicles" The Federal Supreme Court had to decide whether the municipal council of Hochdorf was authorised to declare the initiative "Hochdorf is ready for emission-free vehicles" invalid. The complainant argued before the Federal Supreme Court that the allegedly unjustified invalidation of the "Hochdorf is ready for emission-free vehicles" initiative violated his political rights (Art. 34 BV in conjunction with Art. 17 of the Constitution of the Canton of Lucerne). § 17 of the Constitution of the Canton of Lucerne and § 10 of the municipal ordinance of the municipality of Hochdorf) (E. 3). To assess the substantive legality of a popular initiative, its wording must be interpreted in accordance with the recognised principles of interpretation. If a meaning can be attributed to the initiative that does not make it clearly inadmissible, it must be declared valid in accordance with the principle of favourability or the principle "in dubio pro populo" and submitted to a referendum (E. 3.3.). The lower court stated that the landowners or building lease holders would be restricted in the free disposal of their property by the proposed regulation and thus their right of ownership or guarantee of vested rights would be violated. This restriction on ownership is not proportionate within the meaning of Art. 36 para. 3 BV, as it is neither suitable nor necessary for the desired climate protection (E. 3.4.). The complainant, on the other hand, points out that the availability of charging connections at the homes of vehicle owners is repeatedly cited in the literature as a key factor for a rapid increase in the proportion of electric vehicles (E. 3.5.). It is disputed whether the proposed interference with the guarantee of property rights (Art. 36 para. 3 BV) is proportionate. The principle of proportionality requires that a measure is suitable and necessary to achieve the objective in the public or private interest and that it is reasonable for those affected given the severity of the interference with fundamental rights (E. 4.4.). The Federal Supreme Court denied the unreasonableness and considered the initiative to be compatible with the guarantee of property rights (Art. 26 para. 1 BV) (E. 4.7.).

In the above-mentioned decision, the Federal Supreme Court dealt with an appeal against an arbitration award by a rabbinical arbitration tribunal based in Zurich. The parties had signed an agreement in September 2022 according to which their dispute over a monetary claim was to be decided by a rabbinical court of arbitration. The arbitration tribunal issued its decision in January 2023, but without giving reasons. After examination, the Federal Supreme Court found that the contested decision fulfils all the characteristics of an arbitration award within the meaning of Art. 189 of the Swiss Federal Act on Private International Law (PILA). The constitutional prohibition of ecclesiastical jurisdiction was not applicable here, as the regulation of the form and content of the arbitration decision was primarily subject to the parties' autonomy. Depending on the chosen rules of procedure, this could lead to problems in challenging or enforcing the arbitration award, such as in the present case, in which the arbitration award was only opened orally and without reasons. Since Jewish procedural law is characterised by the principle of orality and, accordingly, did not establish the facts of the case, the Federal Supreme Court only had the unfounded decision before it. Accordingly, the appellant could not assert any grounds for contestation under Art. 190 para. 2 IPRG. The Federal Supreme Court dismissed the appeal.

In this judgement, the Federal Supreme Court restricts the prohibition of aggravation. This is justified by the fact that the public prosecutor's office and the private plaintiff were not heard at an earlier stage of the proceedings (E. 2.3.).

The Federal Supreme Court clarifies its case law on money laundering.

The Federal Supreme Court clarifies its case law on money laundering.

Appeal proceedings can be written off if a defence lawyer can no longer reach his client. Such behaviour on the part of the client is contrary to good faith (E. 2.3.).

The complainant involved in the current leading decision of the Federal Supreme Court suffered a whiplash injury in the 1990s following two car accidents. The now 72-year-old became almost 50% disabled and was awarded a disability pension and integrity compensation totalling CHF 2,200.00 per month by what was then ELVIA Insurance (now Allianz Suisse Insurance; hereinafter "Allianz"). Almost 20 years later, Allianz reconsiders its decision (pursuant to Art. 53 para. 2 ATSG) and shortly afterwards discontinues all insurance benefits. Allianz justifies the suspension of benefits by stating that at the time the benefits were awarded, no adequacy test had been carried out in accordance with whiplash practice, i.e. the complainant's disability was not due to an accident, but to an organic, objectively undetectable injury (E. 4.1.).

In one municipality, two competing companies each operated a thermal spa and a fitness centre. One company received contributions from the municipality for the fixed costs of the infrastructure from the income from the spa tax.

In one municipality, two competing companies each operated a thermal spa and a fitness centre. One company received contributions from the municipality for the fixed costs of the infrastructure from the income from the spa tax.

The complainant had obtained and possessed 136 image files with illegal pornographic content by electronic means. He had also disturbed and harassed a 13-year-old girl by telephone, although she had asked him to refrain from doing so. The Federal Supreme Court had to decide how the penalty should be assessed and whether a lifelong ban from the offence was necessary.

In this case, the Federal Supreme Court had to decide how a paragliding accident in which a passenger was injured should be categorised under criminal law. As part of the practical certification test, the complainant braked too hard on a lateral approach, which led to a stall and a hard impact on the ground.

In this case, the Federal Supreme Court had to decide how a paragliding accident in which a passenger was injured should be categorised under criminal law. As part of the practical certification test, the complainant braked too hard on a lateral approach, which led to a stall and a hard impact on the ground.

Based on various requests for mutual legal assistance from Belgium to Switzerland, the public prosecutor's office of the Canton of Zurich ordered the seizure of all bank assets of a Belgian national (E.B.), including those of the companies he controlled. Based on a Belgian judgement, it was proven that E.B. had obtained the money unlawfully.

In this decision, the Federal Supreme Court dealt with the freedom of form of a legal summons and the associated legally sufficient proof of its notification and timeliness. In principle, debt enforcement proceedings can be initiated against anyone at any time without any preconditions. It follows from this that the continuation of debt enforcement proceedings can be suspended simply by submitting a declaration. This can be made, for example, by telephone, fax or e-mail, whereby the legal proposal is valid if the debt enforcement office has no need to doubt the identity of the caller or sender. In the case of an e-mail submission, a strict principle of receipt applies and there are considerable risks of proof. The sender of an e-mail is obliged to request confirmation of receipt from the recipient and to respond in good time if this is not received. It is incumbent on the sender to take certain precautionary measures in order not to run the risk, in accordance with the rules of burden of proof, that the electronic transmission does not reach the competent authority or does not reach it in time within the statutory period (E. 2.1.). In the specific case, the legal proposal submitted by email could not be located at the debt enforcement office and the question arose as to whether a mere screenshot of the email sent by the debtor was sufficient as evidence. The Federal Supreme Court answered in the negative and found that the defendant was unable to provide qualified credible evidence of the timely submission of the objection, as the defendant only proved that an email had been sent, which is not sufficient according to the rules of burden of proof (E.2.4.).

In a referendum in 2021, voters in the canton of Zurich approved an amendment to the cantonal energy law. According to the amendment to the law, stationary electric resistance heating systems for heating buildings and existing centralised water heaters that are only heated directly must be replaced by 2030. Exceptions are regulated in an ordinance. Intentional offences will be punished with a fine of up to CHF 20,000.

In this decision, the Federal Supreme Court dealt with the application of the revised Art. 6 para. 5 sentence 2 StromVG, which came into force on 1 June 2019. In particular, it clarified the question of the tariff calculation for the 2009 and 2010 financial years and the application of the revised standard. In doing so, it came to the conclusion that the procedure of the Electricity Commission (ElCom) objected to by the appellant, according to which all domestic power plants and participations in production units as well as those foreign power plants and participations in production units that serve to supply end consumers in Switzerland, the long-term energy procurement contracts with delivery location Switzerland as well as the purchases on the market and hedging transactions with reference to the territory of Switzerland were taken into account within the framework of the average price method, was correct in the specific case. Furthermore, ElCom's method did not violate Art. 6 para. 1 StomVG (E. 7.5.).

In this specific case, the Federal Supreme Court examined the question of whether the lower court had violated federal law, as it had essentially violated the Ordinance on Health Insurance (KVV) and the Ordinance on Health Care Services (KLV). The specific case concerned a reimbursement amount for a medicine whose price was reduced by 30.5 % by order of the FOPH on 1 February 2018. The FOPH calculated the reimbursement claim on the basis of an international price comparison (APV) and therapeutic cross-comparison (TQV), which was upheld by the Federal Administrative Court. The appellant argued that the reimbursement claim should be calculated solely on the basis of an APV (E.3.1.), which it derived from the transitional provisions of Art. 32 KVG and Art. 67a KVV in conjunction with Art. 37e KLV and Art. 65b para. 2 KVV and BGE 142 V 26. Accordingly, there was a price difference of around CHF 1,279,952.35 between the two calculation methods. The Federal Supreme Court came to the conclusion that the calculation on the basis of the APV and TQV did not constitute a violation of the prohibition of retroactivity and, furthermore, that the principle of reliance pursuant to BGE 142 V 26 would not apply. The appeal was dismissed.

In the specific case, the complainant claimed that she was not included in the recusal proceedings of District Judge Roger Harris, as a result of which the High Court had violated Art. 29 para. 2 and Art. 6 para. 1 ECHR. The Code of Criminal Procedure does not contain any provisions on who is to be involved in the recusal proceedings (E. 2.3.). In judgement 6B_1149/2014 of 16 July 2015, the Federal Supreme Court held that the complaining private claimant should have been treated as a party in the cantonal recusal proceedings (loc. cit., E. 3.3). The duty of the authority deciding on the request for recusal pursuant to Art. 59 of the Code of Criminal Procedure to include the opposing party or parties in the proceedings arises not only directly from the constitutional and convention guarantees, but also indirectly from the principle of the unity of the proceedings: Anyone whose right to a constitutional court is affected and who therefore has a right of appeal (Art. 81 para. 1 BGG), must be able to participate in the proceedings before all cantonal lower courts in accordance with Art. 111 para. 1 BGG. The High Court should therefore have granted the appellant party status in the recusal proceedings (E. 2.5.).

In September 2022, the Zurich public prosecutor's office filed a request for recusal against Vice President Roger Harris in two proceedings before the High Court of the Canton of Zurich. Roger Harris lodged an appeal against the High Court's recusal request with the Federal Supreme Court. The Federal Supreme Court examined the requirements pursuant to Art. 81 para. 1 BGG. The question arose as to whether a court judge affected by the decision to recuse himself was included in the non-exhaustive list in Art. 81 para. 1 lit. b BGG, according to which a legally protected interest in the cancellation or amendment of the contested decision is required. The Federal Supreme Court took the view that the request for recusal would only affect Mr Harris in his official capacity. For this reason, a judge was no more authorised to appeal against the approval of a recusal request submitted against him than against the annulment of a decision issued by him by the appellate court (E. 2.).

In the present case, the Federal Supreme Court examined an appeal against the Federal Patent Court, which wrongly failed to examine the novelty of the invention in accordance with the contingent claim. Following the remittal, this must be done in order to safeguard the right to be heard (Art. 53 para. 1 ZPO and Art. 29 para. 2 BV) in order to resolve the described internal contradiction in the contested decision (E. 3.3.).

In the present case, the Federal Supreme Court dealt with the elements of interpretation of § 22 para. 1 KVGG and clarified the question regulated by cantonal law as to the point in time from which the entry in the list of defaulting insured persons can be made.

In the present case, the Federal Supreme Court dealt with the admissibility of an application for attachment as a definitive title for the opening of legal proceedings (Art. 271 para. 1 no. 6 SchKG), which was based on the arbitration award of the International Centre for Settlement of Investment Disputes (ICSID).

The complainant should have paid CHF 25 in property tax instead of the actual property tax of CHF 0.15. This was because he was not resident in the municipality of U., in the canton of Aargau, where the property was located. He lodged an appeal against this, arguing that this violated the principle of legal equality. According to the Federal Supreme Court, the unequal treatment between residents and non-residents could not be objectively justified (E. 5.4.).

This case concerned the recognition of a foreign bankruptcy decree. Action was taken against this recognition on the basis of Art. 256 para. 2 ZPO. The question arose as to whether the courts were allowed to recognise it or not. According to Art. 256 para. 2 ZPO, orders of voluntary jurisdiction can be cancelled or amended ex officio or upon application if they subsequently prove to be incorrect and are not contrary to the law or legal certainty. The question therefore arose as to whether this was a matter of voluntary jurisdiction. The Federal Supreme Court answered in the negative (E. 3.4.3., 3.5.).

In this decision, the Federal Supreme Court dealt with the conversion date for offsetting with foreign currency receivables in accordance with Art. 124 para. 2 CO (E. 7.6 et seq.). The Federal Supreme Court held that nothing could be derived from Art. 84 para. 2 CO with regard to the question of which conversion date should be used (E. 7.5). It follows from Art. 124 para. 2 CO that the retroactive effect of the repayment to the due date of the set-off claim is also decisive for the conversion rate (E. 7.7). The Federal Supreme Court did not accept the plaintiff's argument that the offsetting party could realise currency gains without risk with such an interpretation. Art. 124 para. 2 CO is dispositive law, which is why deviating regulations can be contractually agreed (E. 7.10).

At issue in this judgement was the right of appeal of a social welfare authority which, with the power of attorney of an IV applicant, contested the rejection decision of the cantonal IV office. The legitimisation to challenge an order or an objection decision with an appeal to the cantonal court is governed by Art. 59 ATSG (E. 5.1). According to Art. 66 para. 1 IVV, the following are authorised to assert a claim: the insured person, their legal representative and authorities or third parties who regularly support or permanently care for the insured person (E. 5.3). The right of appeal must then already exist at the time the appeal is filed and not only when the decision is issued (E. 5.6). The Federal Supreme Court assumed that the financial contribution of the social welfare authority was regular support within the meaning of Art. 66 para. 1 IVV, even if the appellant was initially able to offset the benefits paid against daily unemployment benefits (E. 5.6). The court upheld the social welfare authority's appeal.

The complainant in this judgement was the victim of a violent crime in 1994 and since then has received both a disability pension and a complementary pension from the accident insurance company. The accident insurance company retroactively corrected the complementary pension it had paid out and demanded repayment of overpaid pension benefits totalling CHF 24,416.55. The question of whether legal fees caused by an insured event should be taken into account when calculating a UVG complementary pension within the meaning of Art. 20 para. 2 UVG was then disputed and had to be examined (E. 3.). To this end, the Federal Supreme Court first established by way of interpretation that a distinction must be made between the complementary pension (Art. 20 para. 2 UVG) and ATSG overcompensation rules (E. 5.1). The overcompensation provision in Art. 69 para. 2 ATSG would have a so-called catch-all function, which would only apply if and insofar as the coordination of benefits is not conclusively regulated in an individual law, which is precisely the case for the complementary pension (E. 5.4). According to the above, there is no valid reason why the legal fees claimed should be included in the calculation of the complementary pension within the meaning of Art. 20 para. 2 UVG, contrary to the clear wording of the law (E. 6). The Federal Supreme Court dismissed the appeal accordingly.

In this judgement, the Federal Supreme Court dealt with the question of whether the lower court may examine all legal grounds for the origin of a claim in question in the revocation proceedings. In the cancellation proceedings, only the claim in dispute in the legal opening proceedings is fixed. The basis on which the creditor asserts the legal opening is irrelevant as long as it establishes the disputed claim.

In the present judgement, the Federal Supreme Court had to deal with the question of whether the customs directorate was entitled to make additional claims for unjustified preferential clearance for declarations of origin on the customs invoice (so-called invoice declarations) on which the original signature was apparently missing by mistake.

The appellant filed a claim for an increase in her disability pension and her son's child disability pension. It was disputed and to be examined whether the lower court had violated federal law by denying the obligation of the cantonal insurance fund Appenzell Innerrhoden (respondent, hereinafter: "KVKAI") to pay benefits.

The co-owners of a property sued for cancellation and division of the co-ownership (pursuant to Art. 650/651 ZGB). The property was to be auctioned off publicly by the court and the proceeds, after deduction of costs and taxes, were to be allocated to the co-owners in proportion to their shares. On 8 August 2019, the Basel-Stadt Civil Court essentially ruled that the co-ownership of the property should be cancelled and that the property should be sold at public auction by the Basel-Stadt Debt Enforcement and Bankruptcy Office (hereinafter: "BKBS"). The BKBS had the market value of the property estimated by a company. Subsequently, the co-owners demanded that the valuation be carried out by an independent valuer.

The petitioner requested the Federal Supreme Court to revise the interim award of 13 December 2017 and the final award of 27 May 2020 of the arbitration tribunal seated in Geneva, citing facts and evidence that subsequently came to light (Art. 190a para. 1 lit. a IPRG).

In the present case, the Federal Supreme Court had to decide in the context of an appeal for a decree whether the Basel ban on begging (Section 9 Begging) in its form violates the Federal Constitution, the ECHR, the Agreement on the Free Movement of Persons and other international law standards.

In this decision, the Federal Supreme Court dealt with the question of taxation of the profit from the sale of a property in connection with hidden capital contributions. B AG (with sole shareholder A) acquired the property, which was later sold, for EUR 4,610,000 (CHF 6,851,382 at the time). The property was recognised in the balance sheet at CHF 1,865,995. The carrying amount was adjusted in subsequent years. In 2015, the property was sold at a price of EUR 5,546,357.60. At that time, the carrying amount in the balance sheet was CHF 3,426,930 or EUR 2,850,199.