Federal court case law 2nd quarter 2024

The Federal Supreme Court had to answer the question as to which tariff should be used to remunerate nursing services within the meaning of Art. 7 para. 2 KLV (Health Care Services Ordinance) (E. 5). The interpretation revealed that the applicable tariff for the remuneration of services pursuant to Art. 7a KLV is based on the formal classification of the service provider, i.e. para. 1 applies to nursing professionals as well as nursing and home care organisations and para. 3 to recognised nursing homes (E. 5.2). Accordingly, the services provided by an approved Spitex organisation pursuant to Art. 7 para. 2 KLV to persons in need of care in an inpatient facility that is not a recognised nursing home are to be remunerated in accordance with the tariff for outpatient service providers pursuant to Art. 7a para. 1 KLV (E. 5.4). This also applies to so-called in-house care, i.e. care services provided by the in-house Spitex organisation (E. 8). It also had to be clarified whether the remuneration pursuant to Art. 7 para. 2 in conjunction with 7a para. 1 KLV should be reduced due to the payment of contributions from the cantonal disability assistance organisation (E. 6). Personal benefits under cantonal law (in casu: § 7 BHG) partly coincide with measures pursuant to Art. 7 para. 2 KLV. The question concerns extra-systemic coordination, which is why Art. 69 ATSG is not applicable (E. 6.2). The BHG itself stipulates that disability benefits are only provided subsidiary to social insurance benefits (§ 20 para. 1 BHG). The obligation of health insurance to cover care services remains in place, regardless of whether the costs for the construction and operation of homes for the disabled are now borne by the cantons (E. 6.3).

The Federal Supreme Court initially stated that the requirements for proving victimhood vary. If no criminal proceedings have been initiated, the standard of proof of overwhelming probability applies. If immediate assistance is granted, it is sufficient if a criminal offence justifying the victim status can be considered. The degree of proof is that of prima facie evidence (E. 4.1). In the case of criminal offences that affect a person's mental integrity, the impairment must be of a certain intensity in order to justify victim status (E. 4.2). In the case of urgent benefits, such as emergency assistance, it is sufficient if there are indications that suggest a not insignificant impairment of mental integrity (E. 4.3.1). In addition, victim status as a prerequisite for entitlement excludes gradual gradations depending on the type and scope of the assistance provided (E. 4.4). In order to affirm natural causality, it is sufficient if the incriminated behaviour cannot be eliminated, at least as a partial cause, without also eliminating the psychological impairment that occurred (E. 5.2). According to the case law of the Federal Supreme Court, emergency assistance must always be provided if the situation directly caused by the offence requires a measure that cannot be postponed in terms of both substance and time (E. 6.2).

Due to the temporally relevant facts and the general principles of intertemporal law, the provisions of the AHVG and AHVV in the version valid until 31 December 2023 are applicable in the present case (E. 2.1). It was disputed whether Art. 55bis lit. b AHVV is in conformity with the constitution and the law (E. 3.1). In the case of dependent ordinances, it must be examined whether the Federal Council has complied with the powers granted by law and, if the legal basis does not allow a deviation from the constitution, the court also decides on the constitutionality of the ordinance (E 3.2.2). According to Art. 39 para. 3 sentence 2 AHVG, individual types of pension can be excluded from pension deferral within the meaning of Art. 39 para. 1 AHVG. The statutory deferral options are to be linked to the pension entitlement in principle, but not to any other material conditions (E. 3.3.4). The mere fact that the retirement pension replaces a disability pension is not a serious or reasonable reason to deny the deferral to the insured persons concerned and therefore Art. 55bis lit. b AHVV is arbitrary within the meaning of Art. 9 BV (E. 3.4.3).

In the present case, the Federal Supreme Court decided when a claim for compensation under Art. 429 para. 1 lit. a of the Code of Criminal Procedure applies (E. 2). If the proceedings are discontinued on the basis of Art. 316 para. 3 of the Code of Criminal Procedure, Art. 429 para. 1 lit. a of the Code of Criminal Procedure does not apply as the basis for a claim for compensation against the state. In contrast, the provision of Art. 427 para. 3 of the Code of Criminal Procedure is expressly tailored to the case of a settlement under Art. 316 of the Code of Criminal Procedure. As a rule, the Confederation or the canton bears the costs of the proceedings if the applicant withdraws the criminal complaint as part of a settlement mediated by the public prosecutor's office. However, the agreement must not be to the detriment of the Confederation or the canton in accordance with the principle that agreements cannot be concluded to the detriment of a third party ("alteri stipulari nemo potest", E. 2.2). It is then necessary to agree a reservation in favour of compensation claims to be borne by the state. If issues are not expressly regulated, it can generally be assumed that they should not be excluded from the settlement by the parties in the absence of an express reservation (judgement 5A_89/2021 of 29 August 2022 E. 5.6.2; E. 3.3).

The Federal Supreme Court ruled on the recovery of unlawfully received pension benefits by the IV office of the Canton of St. Gallen. The complainant, who received a full disability insurance pension, was convicted of commercial fraud because he worked as a manager in a car garage despite his disability. The complainant lodged an appeal against the disability insurance office, which cancelled the pension benefits retroactively and demanded repayment of the unlawfully received amounts. However, the Federal Supreme Court confirmed the reclaiming of the unlawful benefits (E. 7.2.3). It found that the administration had issued the recovery order in good time, as the time limits in Art. 25 ATSG are forfeiture periods. If the claim for reimbursement is derived from a criminal offence for which criminal law provides a longer limitation period, this period is decisive (Art. 25 para. 2 second sentence ATSG). In the case of a criminal offence, the limitation period for prosecution must be taken into account; in the case of fraud, this is 15 years (Art. 146 in conjunction with Art. 97 para. 1 lit. b StGB; E. 3.2). The Federal Supreme Court ultimately came to the conclusion that the respondent's decision was not too late, but actually too early. If the IV office had not issued the recovery order as early as possible, it would have had to expect that the Federal Supreme Court would have qualified the recovery as at least partially forfeited (E. 5.1).

In this case, the Federal Supreme Court ruled on the place of residence of a minor. This means that anyone who moves out of the canton loses their previous place of support in accordance with Art. 9 para. 1 ZUG (BGE 149 V 156 E. 4.3). The stay in a home, hospital or other institution and the official placement of a person of legal age in family care do not constitute a place of residence of support in accordance with Art. 5 ZUG (E. 3.2). According to Art. 7 para. 1 ZUG, the minor child shares the parents' place of residence for support purposes, regardless of their place of residence. If the parents do not have a common place of residence under civil law, the child has an independent place of residence for support at the place of residence of the parent with whom he or she predominantly lives (para. 2). It then has its own place of support at the last place of support if it permanently does not live with the parents or one of the parents (para. 3 lit. c). The latter is the case for minors who are under parental care, are economically dependent and do not live permanently with their parents or one of their parents. This provision covers voluntary and official placements without withdrawal of parental custody. The place where the minor child lived or resided together with the parents or one of the parents immediately before the external placement is deemed to be the child's own place of support in accordance with Art. 7 para. 3 lit. c in conjunction with para. 1 and 2 ZUG (BGE 149 V 240 E. 5.2.3.1; E. 3.3).

The Federal Supreme Court dealt with the issue of the profit tax consequences of reissuing treasury shares. It had to examine whether the proceeds from the reissue of repurchased treasury shares as part of the employee share ownership programme constituted a taxable capital gain for the taxable company (E. 2). The decision is based on the principle of authoritativeness. This is subject to corrections based on special provisions with which tax law deliberately deviates from commercial law (E. 3.1). The Federal Supreme Court therefore held that the acquisition of treasury shares initially deprives a company of its assets. In other words, the acquisition of treasury shares constitutes a partial liquidation, the tax consequences of which can only be avoided if the relevant provisions are complied with in qualitative, quantitative and temporal terms. From the company's perspective, the treasury shares do not represent a genuine asset (E. 3.2.3). If the repurchased treasury shares are reissued, the negative item must be reversed under commercial law and, like a capital increase, recognised in equity in a tax-neutral manner (E. 5.4). The Federal Supreme Court recognised that if the treasury shares do not qualify as an asset under commercial law, their reissue cannot be considered a capital gain and therefore not a capital gain. In the opinion of the Federal Supreme Court, the tax administration cannot rely on any tax law correction standard that would allow the "increase in value" of the reissued shares to be taxed. Rather, the capital gain is to be recognised as a tax-neutral capital contribution within the meaning of Art. 60 lit. a DBG (E. 6).

Costs for care and support provided by family members are only reimbursed in accordance with § 16 para. 2 of the Zug Ordinance on the Compensation of Illness and Disability Costs for Supplementary Benefits of 18 December 2007 (ELKV/ZG) if the family members are not included in the EL calculation and suffer a prolonged, significant loss of income as a result of the care (E. 3.5). The Federal Supreme Court found that the lower court did not violate federal law by assuming that the maximum amount of compensation of CHF 90,000 per year corresponds to approximately 2,710 hours, i.e. 338.85 working days, and that the maximum compensation can only be claimed if the entitled person provides full-time support. Furthermore, it is conclusive that the education of the family member providing care is irrelevant and that the compensation is always paid at the same rate (E. 7.3).

The courts of appeal, not the courts of first instance, are responsible for assessing the timeliness of the notice of appeal (Art. 403 para. 1 lit. a StPO). This jurisdiction also applies if it depends on the receipt of a notice of appeal whether the judgement of the court of first instance is to be subsequently substantiated (E. 5). However, for reasons of procedural economy and to avoid circumvention of Art. 82 para. 2 lit. a StPO, it must be possible for the court of first instance to forward the notice of appeal with a request for non-admission to the court of appeal without a written statement of grounds if it considers the notice of appeal to be late. If the court of appeal qualifies the notice of appeal as timely, the judgement of the court of first instance must subsequently be substantiated in writing (E. 5). If the court of first instance rules on the timeliness of the notice of appeal, this decision is null and void (E. 6).

According to Art. 10 para. 2 of the Federal Disability Discrimination Act (BehiG), the costs of proceedings may exceptionally be imposed on a party if it conducts the proceedings wilfully or recklessly. Neither the wording nor the legislative history provide any indication of what is meant by wilfulness and/or recklessness (E. 5.2 f.). The interpretation of Art. 61 lit. fbis ATSG and Art. 74 para. 2 BVG is of particular interest for the interpretation of Art. 10 para. 2 BehiG. A hopeless complaint is not to be equated with wilfulness or recklessness (E. 5.4). Art. 10 para. 2 BehiG also requires an objective and subjective component. The objective component consists of a party obviously taking an unfounded or futile position. Subjectively, this behaviour of the party must be reproachable, whereby the standard is determined by good faith (E. 5.5). These requirements were not met in the present case (E. 6.7).

A change to the passive bankruptcy estate after the conclusion of bankruptcy is excluded. After the conclusion of bankruptcy, neither the bankruptcy office nor its supervisory authority has any competence to answer questions regarding the schedule of claims (E. 4.2.3). On the other hand, the bankruptcy office remains competent to revoke the assignment order despite the conclusion of bankruptcy, which means that the examination and possible declaration of nullity (Art. 22 SchKG) of an assignment order is also possible in principle (E. 4.3.2). In the international context, the principle of the primacy of international law over national law applies, subject to a possible exception: if Parliament has deliberately enacted a law that is contrary to international law, this law takes precedence. When creating or revising the IPRG, there is no evidence that Parliament deliberately wanted to break the old bankruptcy convention with Bavaria (E. 4.5.5). Accordingly, it was not necessary to recognise the German insolvency decree pursuant to Art. 166 et seq. IPRG was not necessary (E. 4.6).

The fact of the criminal conviction is not decisive for the assessment of the unusual nature of the external factor. The decisive factor is not the criminal relevance of the harmful act per se, but that it generally fulfils the elements of the concept of an accident. However, this was not the case in the present case, as the infection with the HI virus occurred through unprotected sexual intercourse and thus in a typical manner (E. 4.4.1 f.). The circumstances of how it led to unprotected sexual intercourse are not decisive (E. 4.4.1). Even the fact that the complainant would have refused unprotected sexual intercourse if she had known about the HIV infection does not change this (E. 4.4.3).

Appeal proceedings are generally oral. The waiver of an oral hearing must, on the one hand, fulfil an exceptional case of Art. 406 of the Code of Criminal Procedure and, on the other hand, it must be examined whether a waiver of a public hearing is compatible with Art. 6 no. 1 of the ECHR (E. 2.1). If a matter is referred back to the Court of Appeal for a new judgement, an appeal procedure limited to the complaints upheld in the Federal Supreme Court appeal proceedings must be conducted (E. 2.4.1). According to unwritten federal law, when reassessing a rejection decision, the lower court must base its decision on the legal judgement on which the rejection is based. If only the legal assessment is still under discussion in the rejection proceedings, the cantonal instance dealing with the reassessment does not have to hold a new oral appeal hearing (E. 2.4.2). In casu, the lower instance disregarded the case law of the Federal Supreme Court on the one hand, as not only legal questions were to be decided in the proceedings, and on the other hand it violated the right to be heard because the appellant was not able to submit any motions for evidence or to comment on the question of his situation in the event of a return to Kosovo (E. 3.2; see also judgement 6B_105/2021 E. 3.5.5).

In the present case, the Federal Supreme Court commented on the security for party compensation pursuant to Art. 99 para. 1 lit. b and d ZPO. According to the landmark judgement BGE 142 III 798, the party appealing against an interim decision must demonstrate that the default consequence of non-admission and thus the legal disadvantage of being prevented from accessing the court is a real threat (E. 1.3). If, on the other hand, a requested security for party compensation is rejected, the complete or partial rejection of an application for security for party compensation can result in an irreparable disadvantage within the meaning of Art. 93 para. 1 lit. a BGG (see BGE 147 III 529, not published in: BGE 148 III 42; E. 1.4). Finally, the legislator did not intend to open up access to the Federal Supreme Court against interim rulings that do not concern jurisdiction or the right to recuse (E. 2.2.1.2).

Multiple commercial fraud, multiple instigation and multiple aiding and abetting of cheque and credit card fraud, multiple commercial fraudulent misuse of a data processing system; sentencing; deportation to another country

The Federal Supreme Court clarifies questions in connection with the CO2 penalty system for vehicle importers. One of the aims of the Federal Act on the Reduction of CO2 Emissions (CO2 Act) is to reduce the CO2 emissions of new vehicles. To this end, manufacturers and importers of vehicles are set CO2 targets by the Swiss Federal Office of Energy (SFOE), and if these targets are exceeded, a CO2 penalty must be paid to the federal government (E. 4.2). In the present case, the Federal Supreme Court assessed how the term "importer" is to be understood according to the teleological method of understanding (E. 5 et seq.). As a result, the term importer under Art. 13 para. 1 CO2 Act cannot be derived directly from the wording. However, from a systematic, historical and teleological perspective, it is clear that the person who places a passenger car on the Swiss market for the first time is deemed to be the importer (E. 5.2.7). The decisive factor is whoever holds the corresponding type authorisation (E. 5.3.4). The Federal Supreme Court also stated that the operation of a CO2 exchange by a major importer and the associated transfer of CO2 emission values are not unlawful (E. 6.3.3).

The Federal Supreme Court confirms that in the present case a lawyer is subject to disciplinary supervision both for his activities as executor and as administrator of an estate (E. 4.1.3). It also confirms the violation of professional rules; in particular, a lawyer appointed as executor must pay the debts of the deceased, must carefully store assets entrusted to him and be in a position to hand them over at any time, and is obliged to submit a detailed invoice on request at any time and not only after the end of the mandate (E. 4.4.4). Furthermore, disciplinary measures that have already been cancelled may be taken into account when assessing the sanction (E. 5.11). The publication of the temporary ban on exercising the profession in the official gazette, as provided for under cantonal law, is to be qualified as a repressive measure in addition to the sanction and is contrary to the conclusive standardisation of disciplinary law in the BGFA (E. 7.9).

If mobile radio installations with adaptive antennas, which were originally assessed according to the so-called "worst-case scenario" and thus without taking a correction factor into account (precautionary emission limitation), are now to be operated using a correction factor and thus without the previously applicable emission limitation, the Federal Supreme Court has ruled that an ordinary building permit procedure must be carried out. The Federal Supreme Court justifies its opinion by stating that the application of the correction factor could lead to power peaks that could be significantly higher than the previous maximum transmission power. The non-ionising radiation is basically imperceptible. This de facto change in operation regularly justifies an interest on the part of residents and the public in a prior check as to whether the authorisation requirements are met (E. 4.2).

What is disputed here is the start of the default interest period or the time at which the corresponding withholding tax claim(s) arises in connection with various payments of monetary value made over the course of the financial years. As hidden profit distributions are not based on a legally binding transaction, but are purely actual transactions, their withholding tax claims already arise at the time of the payment or - if evident from an accounting point of view - the respective booking of the pecuniary benefit (E. 3.2.1). The Federal Supreme Court comes to the conclusion that the withholding tax claim in the present case already arose at the time of the individual bookings of the benefit and is not to be based on the approval of the annual accounts (E. 4.2.).

Withdrawal of cross-appeal due to unexcused non-appearance at the appeal hearing (6B_963/2023); administrative fine; unexcused non-appearance at the appeal hearing (6B_921/2023)

In the present case, the complainant has not shown that Art. 189a para. 1 PILA is applicable (E. 3.3). In any case, failure to comply with the time limit provided for in Art. 189a para. 1 PILA would not lead to a violation of formal public policy, as this is not a fundamental and generally recognised procedural principle (E. 3.4). On the other hand, the Federal Supreme Court affirmed the violation of the right to be heard. By not serving the request for clarification to the appellant and only hearing the appellant's view before issuing the clarification decision, the arbitration court violated both the duty to hear (E. 2.4) and the principle of equal treatment (E. 4.4).

Services pursuant to Art. 25-31 KVG must be effective, appropriate and economical (Art. 32 para. 1 sentence 1 KVG). It was disputed whether the appellant had systematically charged two TARMED items. The lower court affirmed the reimbursement and based its decision on a random case-by-case examination with extrapolation, which it subsequently verified with a control calculation (E. 4.2). Before the introduction of the screening model (judgement 9C_135/2022 of 12 December 2023), this procedure was permissible. For a sample to be representative, a sufficiently large sample must be drawn at random and an estimation procedure must be used to infer the population from the sample. Finally, the usefulness of the results depends on the accuracy required by the purpose of the survey (E. 7.4). In the present case, these criteria were not met, which is why the sample cannot be used as a basis and the case is referred back to the lower court for reassessment (E. 8.1 and E. 8.2).

It can be deduced from the principles of criminal law that the release must be sufficiently specific. The scope of the release must be clear to the client at the time of signing, both factually ("when"?) and quantitatively ("how much"?). In addition, the reason for the release and the scope of the client-lawyer relationship must be described in sufficiently concrete terms. This also means that the client must have an idea of the effects of the release on his own legal sphere. The greater the conflict of interests between the lawyer and the client, the stricter the requirements for the factual and quantitative degree of concretisation of a release clause must be - the conflict of interests is particularly pronounced in fee disputes (E. 5.8). In the present case, the Federal Supreme Court came to the conclusion that the release clause did not fulfil these requirements (E. 6).

The Federal Supreme Court determined in advance that the Fees Ordinance of 23 September 1996 on the Federal Act on Debt Enforcement and Bankruptcy (Fee Ordinance SchKG) applies exclusively to fees and compensation (E. 3.1). Although the service of an order for payment by means of a collection summons is permissible in principle, there is no obligation to pay costs for this, as it is not an official act prescribed by law. The newly introduced Art. 10bis GebV SchKG does not change this (E. 3.2.3). The Federal Supreme Court also found that the notice of attachment must be distinguished from the actual execution of the attachment, which is why a separate invoice is justified. The notice of seizure is therefore not regulated in Art. 20 para. 1 GebV SchKG (E. 3.3.1). The notice of attachment is not a debt enforcement document that must be served in accordance with Art. 64 SchKG, but an order that is served in accordance with Art. 34 et seq. SchKG. The service of the notice of attachment by A Mail (and also by A Mail Plus) is not provided for in the SchKG and is also not prescribed, which is why these costs may not be charged (E. 3.3.2). The certificate of attachment also constitutes the certificate of loss if there were no attachable assets, which is why Art. 20 GebV SchKG applies. The issue of another document is neither necessary nor permissible (E. 3.4).

Firstly, the Federal Supreme Court confirmed that the tax attachment takes precedence over the SchKG attachment as lex specialis and deviates from the generally applicable provisions of Art. 271 et seq. SchKG "in the main concerning the grounds for attachment and the attachment authority" (E. 2.4.1; BGE 148 III 138 E. 3.5.1). The meaning and purpose of tax attachment and pure SchKG attachment do not differ and have the same function in terms of content. They differ primarily in that the same instance is not authorised to trigger them. However, since the two institutions have the same function, it is justified that the same liability provision of the attachment law, i.e. Art. 273 SchKG, is also applied when the same security instrument is used (E. 2.5.4).

Pursuant to Art. 151 ZPO, obvious and notorious facts as well as generally recognised principles of experience do not require proof (E. 2.1). However, such facts must be accepted with caution, as otherwise the principles of evidence and the rights of the parties would be undermined (E. 2.3). While notoriety applies to publicly accessible entries in the Swiss commercial register (E. 2.2; instead of many: BGE 148 IV 7 E. 5.1), this cannot apply to entries in foreign commercial registers (E. 2.3). Since there is generally no second exchange of written submissions in proceedings to open legal proceedings, the respondent's submissions were late and also did not fulfil the requirements of Art. 229 ZPO (E. 3.4 and E. 3.6). This is not affected by the fact that the judge hearing the application for the opening of legal proceedings must examine the three identities ex officio (E. 3.7).

The wording and legislative history of Art. 24 para. 3 AVIG are not clear (E. 7.1.1 and E. 7.5). However, the purpose of the provision is obviously to limit the unemployment insurance compensation payments in the individual control periods to the difference between the interim earnings earned in the control period and the insured earnings and serves as a corrective to combat abuse (E. 7.4 and E. 7.4.1). If a person registered with the unemployment insurance scheme is in gainful employment, the resulting interim earnings within the meaning of Art. 24 para. 1 and para. 3 AVIG must correspond to the salary entitlement acquired and not to the amount of money paid out by the employer (E. 7.4.2 and E. 7.5).

The subject of this decision is an administrative fine imposed on the complainant because her daughter repeatedly attended primary school without a mask during the coronavirus pandemic - despite the obligation to wear a mask and without a medical certificate authorising her to wear a mask. The complainant did not submit a medical certificate or any other evidence and thus failed to fulfil her duty to cooperate (E. 4.7). The Federal Supreme Court rejects the mother's appeal and confirms its case law according to which the administrative fine imposed under school law is not a criminal offence.

An IV pensioner applied for reimbursement of medical expenses for his care. Due to the joint EL calculation of the spouses, not only the recognised expenses (and the allowable income) of the EL recipient are taken into account, but also those of the wife. As a result, the spouses benefit, among other things, from an approx. CHF 10,000 increase in living expenses and from the deduction of an amount for compulsory health insurance (cf. Art. 10 ELG). As the spouse providing care and nursing is not credited with any waived income due to her caring duties, the joint EL calculation leads to a higher entitlement (E. 6.4.6). The Federal Supreme Court upheld the appeal.

The taxpayers declared the property tax value at 60% of the market value and the imputed rental value at 3.5% of this. They also deducted the cost of the furniture, which was purchased together with the condominium, from the acquisition costs. Here, the Federal Supreme Court followed the tax administration, which did not allow this deduction due to the lack of mention in the purchase agreement. The tax authorities, in turn, set the property tax value at 80% of the market value and the imputed rental value at 5.0%. The Federal Supreme Court did not support the argument put forward against this that the property was in a worse position. Specifically, it stated that a "target median value of 70%" is contrary to federal law, whereas an approach of 80% is not objectionable in principle, as the fact that foreign countries do not necessarily have a system of public notarisation of the purchase agreement and entry in the land register must be taken into account. Even if a canton applies a 70% rate to domestic properties and an 80% rate to foreign properties, this does not constitute a systematic disadvantage that cannot be based on a proper justification (E. 3.5.2). This also applies analogously to the imputed rental value. The appeal was ultimately dismissed.

This case stems from a call for tenders issued by the Federal Office for Buildings and Logistics in June 2013. The awarding authority invited tenders for a contract from the Federal Office of Information Technology and Telecommunications for the construction of data transport services. The Federal Supreme Court ruled that the appellant was entitled to compensation for useless expenses incurred in connection with a procurement procedure for the construction of data transport lines in accordance with Art. 3 para. 1 VG. The appeal was partially upheld, the contested judgement was annulled and the case was referred back to the lower court for a new decision (E. 9).

In this decision, the Federal Supreme Court dealt with the question of whether an official act is invalid if it was carried out prematurely and thus in violation of Art. 9 para. 2 and 3 VFRR (E. 2.2). The Federal Supreme Court agreed with the lower court that Art. 9 para. 2 and 3 VFRR is a regulatory provision, the violation of which has no consequences unless the debt enforcement office itself had pressed ahead with the debt enforcement proceedings prematurely on the basis of a premature request for continuation or realisation (E. 3.3).

The Federal Supreme Court dealt with the question of sufficient suspicion in unsealing proceedings for economic offences (E.1.1). Non-custodial coercive measures in criminal proceedings do not require the same level of suspicion as pre-trial detention and preventive detention. Against this background, it would be inaccurate to base the review of reasonable suspicion within the meaning of Art. 197 para. 1 lit. b of the Code of Criminal Procedure on the criterion developed in the published case law of the Federal Supreme Court in connection with the review of urgent suspicion in detention proceedings. Correctly, the only requirement for the assumption of sufficient suspicion in unsealing proceedings is the existence of significant and concrete indications of a criminal offence (E. 3.4). The aim of the unsealing request is to shed light on the grounds for suspicion with the help of the sealed documents. The criminal authority, which will have to make the final decision, should not be prejudged in this regard (E.4.3.2).

In the present case, the Federal Supreme Court assessed the application of a tariff in an individual case and thus the question of whether the respondent invoiced the services it provided in accordance with the tariff (E. 1). Compulsory health insurance (OKP) covers the costs of services that serve to diagnose or treat an illness and its consequences (Art. 25 para. 1 KVG). These benefits include medically prescribed medicines (Art. 25 para. 2 lit. b KVG; E. 5.1). The medicines to be covered by the OKP are determined by the authorities: The Federal Department of Home Affairs (FDHA) issues a list of the preparations, active ingredients and excipients used in prescriptions with a tariff (cf. Art. 52 para. 1 lit. a no. 2 KVG). On the basis of the list principle enshrined in Art. 34 para. 1 KVG, health insurers can in principle only cover the medicinal products specified therein (E. 5.2). The appellant's main complaint is a violation of Art. 52 para. 1 lit. a no. 2 KVG and the tariff protection enshrined in Art. 44 para. 1 KVG (E. 6.2). The Federal Supreme Court found that the preparation of cytostatic infusions by the hospital pharmacy of the respondent falls under the term "manufacturing" within the meaning of Art. 4 para. 1 lit. c of the HMG and that the preparation of the cytostatic infusions was carried out according to the rules of good manufacturing practice for medicinal products in small quantities in accordance with Annex 2 of the Pharmacopoea Helvetica (Ph. Helv.) (E. 9.2.1; 9.4.2.2).

According to previous case law, the electronic monitoring form of execution is permitted if the total sentence does not exceed 12 months in the case of a partially conditional sentence (E. 2.2.4; BGer 6B_223/2021). In the case of the special form of execution of semi-custodial sentences, however, only the unconditional part of the sentence is taken into account (E. 2.2.5; BGer 6B_1321/2016). A change in case law must be able to be based on serious, objective reasons, which must be all the more weighty with regard to the principle of legal certainty the longer the case law to be changed has existed (E. 2.3.1). In the present case, the Federal Supreme Court affirmed the existence of serious, objective reasons for the amendment of the case law and thus confirmed that the unconditionally enforceable part of the partially enforceable sentence and not the total custodial sentence must be taken into account when determining the relevant maximum duration of 12 months for the execution of electronic monitoring in the case of partially enforceable custodial sentences (E. 2.4).

In the present case, the question was whether the plant in question should be categorised as a mixed or hybrid plant and the synergy deduction of 15 %. Like the lower court, the Federal Supreme Court considered that it could not be a mixed plant, as there was a lack of production of electricity from renewable and fossil energy sources (E. 5.4.2). Furthermore, the Federal Supreme Court confirmed that this was a hybrid plant, even though sewage gas is not eligible for support under the feed-in tariff system in accordance with Annex 1.5 para. 2.1.2 lit. g EnFV (E. 5.4.3). Such an installation is covered by Art. 2 lit. a EnFV (E. 5.4.4). On the other hand, the Federal Supreme Court found that the lower court should have applied Art. 16 para. 2 EnFV when assessing the remuneration rate (E. 5.5.2 f.), which is why the case must be referred back for recalculation of the remuneration rate in accordance with Art. 16 para. 2 EnFV (E. 6).

In all three languages, the granting of an assistance contribution requires that an employment contract exists between the insured person or their legal representative and the assistant (so-called employer model) (E. 4.4). It is questionable whether this requirement is also met if the employment contract was concluded with a legal entity that is controlled by the insured person or their legal representative. The Federal Supreme Court noted in advance that the Councils rejected the extension to legal entities, as this was likely to result in additional costs and would run counter to the actual objective of cost neutrality in the area of assistance (E. 4.4.2 et seq.). Although the councils did not consider the present constellation (E. 5.2), this does not alter the fact that they decided in favour of an employer model. Furthermore, it cannot be ruled out that the administrative costs of the legal entity would be compensated with the assistance contribution, which would lead to financial support that is not in the spirit of the legislator (E. 5.3).

The lower court affirmed the actual administration in U., as this appeared "very likely" (E. 3.3). In doing so, the administrative court adopted the wording from the case law of the Federal Supreme Court. This case law of the Federal Supreme Court was based on the notion that both the burden of proof and the burden of proof for taxable facts can be transferred to the taxpayer depending on the situation, provided that the tax authority succeeds in making the occurrence of these facts appear "very probable" (E. 3.6.1). This idea is outdated in two respects: firstly, it conflicts with the maxim of investigation (Art. 46 para. 1 StHG) and secondly, the distribution of the objective burden of proof in tax law is now also based on Art. 8 ZGB. If the wording justifies a reversal of the burden of proof, this must be rejected (E. 3.6.2). However, the situation is different if the wording is qualified as a modification of the standard of proof. A modification must at least be possible for those facts for which full proof is not possible or reasonable due to the nature of the matter - and not only in the specific individual case (E. 3.6.4). Proof of the place of actual administration is such a fact, which is why the wording in this regard is in line with federal law (E. 3.7). The Federal Supreme Court left open whether a general facilitation of proof as in social insurance law should apply (E. 3.6.4).

The question of whether someone is a descendant is determined according to family law. A legal child relationship is a prerequisite, as inheritance law is based exclusively on formal family law relationships (E. 4.4). In the present case, there was a so-called "paying paternity" under the old law, which does not establish a legal child relationship (E. 4.8). In the context of the action for reduction, the lower courts examined, as a preliminary question, whether the appellant was a descendant of the testator, which was not the case. After the death of the testator, the legal relationship to the child could only be established by means of an action for paternity - directed against the testator's descendants (E. 7.1). The paternity action is an action to establish a relationship. Therefore, this question could not be the subject of the reduction proceedings from the outset (E. 7.2). The appellant did not raise an independent paternity action. Although it is true that this was not open to him according to the wording of Art. 13a para. 1 SchlT ZGB, the more recent case law did not assess the admissibility of the paternity action according to the transitional law, but according to Art. 263 para. 3 ZGB (E. 7.4.1). Due to the lack of a legal relationship with the child and the fact that the paternity action cannot be examined on a question-by-question basis, the action was to be dismissed insofar as it was recognised.

Only the FTA can make a binding decision on the responsibility for assessment in the intercantonal relationship (E. 4.1). In casu, the Canton of Bern was not authorised to decide on the responsibility for the assessment of direct federal tax (E. 4.2). The Federal Supreme Court upholds its case law according to which it was concluded that the cantonal tax domicile decision regarding direct federal tax was null and void (E. 4.3). In particular, the decisive factor is whether the defect is so serious and obvious that it would have resulted in nullity even if the decision had not been contested in good time. This is affirmed in the present case because a violation of Art. 108 para. 1 DBG leads to conflicts of jurisdiction being exacerbated instead of being resolved (E. 4.3.5). Furthermore, the tax domicile was disputed. Domicile results solely from the totality of objective facts recognisable to third parties, in which the intention of the person concerned to remain permanently is manifested (E. 5.2). Case law and doctrine recognise that the intention to remain permanently does not only apply to those who wish to remain in a place forever or for an indefinite period of time, but also to those who make the place the centre of their living conditions and personal and business relationships, even if only for a short period of time, thereby giving it a certain stability (E. 5.4). As the centre of life in this case was in Luxembourg, the appellants were liable to pay tax at the appellant's place of residence on the basis of Art. 3 para. 5 DBG (E. 5.8).

The Federal Supreme Court had to decide the question of whether the provision of Art. 26a para. 1 BVG presupposes an effective pension deduction prior to participation in reintegration measures (E. 4.1). After interpreting the aforementioned provision, the Federal Supreme Court concludes that Art. 26a BVG refers to the cancellation or reduction of the disability pension as a result of reintegration from a pension situation. The standard does not apply to situations in which insured persons are retroactively awarded a graduated and/or temporary pension during which occupational reintegration measures took place (E. 4.4). It cannot be deduced from the principle of equal treatment of Art. 8 para. 1 BVG that the three-year protection period of Art. 26a para. 1 BVG also applies in the last constellation. The clear wording and meaning of Art. 26 para. 1 BVG precludes a constitutional interpretation (E. 4.5).

The Federal Supreme Court confirms its case law according to which the narcotics resulting from several transactions must also be taken into account as a whole when assessing the question of a serious case in terms of quantity pursuant to Art. 19 para. 2 lit. a NarcA, even if these do not form a single coherent event in the sense of a natural unit of action (E. 1.5; E. 1.6). This also applies in particular because the offender knows or must know of the total quantity of narcotics used and thus of the associated danger, at least at the time of his last act. This means that several legally independent individual offences that only reach the qualifying quantity limit as a whole must be treated in the same way as a single offence involving a qualifying quantity (E. 1.6.2.1). Whether several offences appear to belong together or whether they constitute independent individual acts is therefore irrelevant to the question of the existence of a serious case in terms of quantity (E. 1.6.3).

The subject of this decision is an administrative fine imposed on the complainant because her daughter repeatedly attended primary school without a mask during the coronavirus pandemic - despite the obligation to wear a mask and without a medical certificate authorising her to wear a mask. The complainant did not submit a medical certificate or any other evidence and thus failed to fulfil her duty to cooperate (E. 4.7). The Federal Supreme Court rejects the mother's appeal and confirms its case law according to which the administrative fine imposed under school law is not a criminal offence.

An IV pensioner applied for reimbursement of medical expenses for his care. Due to the joint EL calculation of the spouses, not only the recognised expenses (and the allowable income) of the EL recipient are taken into account, but also those of the wife. As a result, the spouses benefit, among other things, from an approx. CHF 10,000 increase in living expenses and from the deduction of an amount for compulsory health insurance (cf. Art. 10 ELG). As the spouse providing care and nursing is not credited with any waived income due to her caring duties, the joint EL calculation leads to a higher entitlement (E. 6.4.6). The Federal Supreme Court upheld the appeal.

The taxpayers declared the property tax value at 60% of the market value and the imputed rental value at 3.5% of this. They also deducted the cost of the furniture, which was purchased together with the condominium, from the acquisition costs. Here, the Federal Supreme Court followed the tax administration, which did not allow this deduction due to the lack of mention in the purchase agreement. The tax authorities, in turn, set the property tax value at 80% of the market value and the imputed rental value at 5.0%. The Federal Supreme Court did not support the argument put forward against this that the property was in a worse position. Specifically, it stated that a "target median value of 70%" is contrary to federal law, whereas an approach of 80% is not objectionable in principle, as the fact that foreign countries do not necessarily have a system of public notarisation of the purchase agreement and entry in the land register must be taken into account. Even if a canton applies a 70% rate to domestic properties and an 80% rate to foreign properties, this does not constitute a systematic disadvantage that cannot be based on a proper justification (E. 3.5.2). This also applies analogously to the imputed rental value. The appeal was ultimately dismissed.

This case stems from a call for tenders issued by the Federal Office for Buildings and Logistics in June 2013. The awarding authority invited tenders for a contract from the Federal Office of Information Technology and Telecommunications for the construction of data transport services. The Federal Supreme Court ruled that the appellant was entitled to compensation for useless expenses incurred in connection with a procurement procedure for the construction of data transport lines in accordance with Art. 3 para. 1 VG. The appeal was partially upheld, the contested judgement was annulled and the case was referred back to the lower court for a new decision (E. 9).

In this decision, the Federal Supreme Court dealt with the question of whether an official act is invalid if it was carried out prematurely and thus in violation of Art. 9 para. 2 and 3 VFRR (E. 2.2). The Federal Supreme Court agreed with the lower court that Art. 9 para. 2 and 3 VFRR is a regulatory provision, the violation of which has no consequences unless the debt enforcement office itself had pressed ahead with the debt enforcement proceedings prematurely on the basis of a premature request for continuation or realisation (E. 3.3).