Federal court case law 2nd quarter 2025

In its decision 9C_583/2024, the Federal Supreme Court examined whether the cancellation of an insurance policy was lawful under Art. 40 VVG. The appellant claimed an additional payment in connection with a disability pension from a pillar 3a policy. The Federal Supreme Court confirmed that the lower court based its decision on full evidence, in particular based on observations (E. 3 f.). As the appellant was unable to prove his alleged incapacity for work due to the lack of a medical report, he was unable to provide any counter-evidence for his claimed incapacity for work. The appeal was dismissed.

The Federal Supreme Court overturns a judgement of the Aargau Insurance Court because the complainant's mental state of health was insufficiently clarified (E. 4.6). The IV office relied on a purely file-based assessment by an RAD orthopaedist without psychiatric qualifications and did not take sufficient account of the well-founded information provided by the psychotherapist of many years' standing. The court criticised a violation of the principle of investigation and referred the case back to the IV office for more in-depth clarification of the state of mental health.

The provisional extension of preventive detention ordered by the President of the Court of Appeal of the Canton of Basel-Stadt was disputed after the preventive detention ordered at first instance in appeal proceedings concerning inpatient therapeutic measures had expired. The Federal Supreme Court ruled that as soon as the proceedings are pending before the court of appeal, the latter decides ex officio whether preventive detention is to be extended (E.2.3). This also follows from Art. 388 para. 1 lit. b. Consequently, Art. 227 para. 1 and 2 of the Code of Criminal Procedure do not apply to extensions of detention by the court of appeal (E.2.4.1). According to Federal Supreme Court case law, preventive detention is not periodically reviewed once the matter has been referred to the Court of Appeal. It can continue to order preventive detention until the appeal judgement. The detainee is protected by Art. 233 of the Code of Criminal Procedure, according to which he or she can submit an application for release from custody (E.2.4.2). In this decision, the Federal Supreme Court ruled that there had been a violation of the right to be heard due to the lack of comprehensive access to the files of the lower court. As a result, the appellant's right to reply and right to be heard had been violated (E.3.3.1).

In its ruling of 19 May 2025, the Federal Supreme Court dismissed three appeals against account freezes ordered by the Federal Council in 2022 and 2023. These concerned bank accounts in which persons from the political circle of former Ukrainian President Viktor Yanukovich are beneficial owners. Following Yanukovich's ouster in 2014, Ukraine submitted several requests for mutual legal assistance to Switzerland in order to freeze the accounts of suspected corrupt individuals associated with him. The Federal Office of Justice subsequently ordered the freezing of various accounts of A. Limited and B. Limited at Swiss banks. Due to the war in Ukraine and the resulting inability of the Ukrainian authorities to properly conduct criminal investigations and mutual legal assistance proceedings, the Federal Council ordered the assets to be frozen again in 2023 pending a legally binding decision on their confiscation. The account freezes previously ordered by way of mutual legal assistance were lifted. A. Limited and B. Limited lodged an appeal against this with the Federal Supreme Court. The Federal Supreme Court examined whether the conditions for an administrative freeze pursuant to Art. 4 SRVG were met, in particular whether the lack of possibility of criminal confiscation in Ukraine was due to a failure of the state structures. The complainants argued that Ukraine was not a failed state despite the war and that the authorities could continue to work efficiently. The Federal Supreme Court confirmed that the account freezes ordered by the Federal Council were lawful. In view of the limited functionality of the Ukrainian judicial system as a result of the war, the requirements for an administrative freeze under Art. 4 para. 2 lit. b SRVG were met (E. 6.4). The appeals of the companies concerned were dismissed.

In the present decision, the Federal Supreme Court holds that Art. 15 Fee Ordinance SchKG is not applicable if the first service of a payment order and another service are carried out at the same time and, moreover, that the travelling expenses are not to be apportioned to the individual services, as no travelling expenses are incurred for the first service. It is also not possible to notionally calculate a travelling allowance for both services and then allocate it to both services, notionally to the first service of the payment order and actually to the other service for which a travelling allowance is owed. In the opinion of the Federal Supreme Court, the situation in this case should be considered as if the visit to the other debtor (payment order) had not taken place at the same time as the visit to the complainant (certificate of loss). For the calculation of the travel compensation, a distance of 13.7 kilometres from the debt enforcement office to the complainant must therefore be assumed in the present case, and not - as requested by the complainant - 2.7 kilometres (E. 3.4).

Termination for demolition, like termination for conversion/renovation, is abusive if it is already obvious at the time of termination that the conversion or demolition of the property appears objectively impossible because it is clearly incompatible with the provisions of public law (e.g. monument protection) and the landlord will therefore certainly not obtain the necessary demolition permit (E. 3.6.4.1). In principle, the owner is free to decide for what motive and at what time he wishes to demolish his property, as long as he has an interest worthy of protection and does not proceed in a harassing manner. To assess the seriousness of the stated reason for termination, it is sufficient for the landlord to state a plausible intention or a realisable outline of the further use of the property without having to present a fully developed project. Similarly, it is not necessary to provide more detailed information about the future use if the rented building is in such a poor condition that the need for demolition is obvious, which is why the landlord has an interest worthy of protection in the termination without further ado (E. 3.6.4.2).

In the present case, the request for revision against Federal Patent Judge Bremi based on a reason for recusal discovered after the Federal Supreme Court judgement was in principle admissible pursuant to Art. 123 para. 2 lit. a BGG (E. 4.1). According to Art. 124 para. 1 lit. d BGG, the request for revision must be submitted to the Federal Supreme Court propter nova within 90 days of the discovery of the relevant fact. The term "discovery" refers to certain knowledge. Mere suspicions or even rumours are not sufficient (E. 5.1). It is the responsibility of the applicant to prove the circumstances relevant to meeting the deadline (E. 5.1). In the present case, the appellant did not sufficiently fulfil its burden of proof (E. 5.3). In the present case, the fact that a judge or his law firm filed a priority application on behalf of a subcontractor of a litigant was not sufficient to justify the judge's absence. The asserted new fact was therefore not material within the meaning of Art. 123 para. 2 lit. a BGG, because it would not have been able to clearly justify Judge Bremi's recusal in the present case (E. 6.5).

The judgement concerns an appeal by China against a decision on jurisdiction by an arbitration tribunal in Geneva. The claimant accuses China of having violated the bilateral investment protection agreement with the United Kingdom of 15 May 1986 by expropriating land rights. In principle, an appeal under Art. 190a IPRG can be lodged against a final and partial arbitral award as well as against an interim award. It is necessary that the decision in question is binding for the arbitration court, as only final decisions are open to revision (E. 4.2.). The Federal Supreme Court dismissed China's request for revision as it was based on the confession of a witness, which, however, only came about after the decision on jurisdiction (5.1). According to Art. 190a lit. a IPRG, a revision is excluded if facts and evidence are asserted that only arose after the arbitration decision (E.6.4).

The complainant, a bank, had filed a complaint with the Federal Supreme Court in the context of arbitration proceedings due to an obvious violation of the law. Even if parties attach great importance to confidentiality in arbitration proceedings, this does not alter the fact that the rules on the publicity of proceedings apply in the event of an appeal to the Federal Supreme Court (E. 7.2). However, when weighing up the interests of the parties in excluding the public, the legitimate need for confidentiality must be taken into account accordingly. The aim is to prevent a party from foregoing legal protection through an appeal to the Federal Supreme Court for fear of its affairs being made public. The respondent's request to exclude the public from the proceedings was granted in the present case.

An association lodged an objection to a building permit on behalf of its members. However, the Basel-Stadt building rights commission rejected this. According to Section 4 of the Basel-Stadt Lawyers Act, only someone who is registered in the cantonal register of lawyers may act as a representative. As this was not the case for the association, its objection was not allowed. The complainants argued before the Federal Supreme Court that Section 4 of the Advocacy Act/BS inadmissibly restricted their constitutional right to freely choose a legal representative. The Federal Supreme Court ruled that although the interference with the fundamental right to freely choose legal representation exists, it is justified under cantonal law to ensure the orderly conduct of proceedings (E. 5.4). The exclusion of the association from representation was therefore justified.

The Federal Supreme Court ruled that the approved school contract with the municipality of Will (SG) and the Catholic girls' school Kathi violates two important principles: Firstly, the school violates the requirement of denominational neutrality as it is Catholic in character, which is not permitted in public schools (E. 7.7.). Secondly, the school violates the principle of equality because it only accepts girls (E. 9.3). Single-sex education may be permissible in Switzerland if it serves to compensate for gender-related disadvantages (E. 8.7.3). In this case, however, no such reason for equalisation was found.

Dr A._ was sued by health insurers for allegedly uneconomical treatments in 2019. The arbitration court in Bern ordered him to repay around CHF 156,000.00. The Federal Supreme Court clarified that medical treatments must meet the requirements of cost-effectiveness in accordance with the Health Insurance Act (KVG) (E. 4.1). Treatments that are not medically necessary are considered uneconomical and may therefore not be billed under compulsory health insurance. The so-called screening method is recognised as an admissible and correct procedure for checking cost-effectiveness (E. 4.3). This involves creating a regression index that compares the treatment costs of a doctor with those of a comparison group from similar specialities. In the context of this methodology, there were discussions about the level of the tolerance margin within which deviations from the average value are accepted. While some called for the margin to be increased to up to 30 points, the Federal Supreme Court ruled that a tolerance deduction of 20 points was sufficient (E. 8.2.3). This limit makes it possible to take individual differences in practice style into account appropriately without impairing the comparability of the data. In the specific case, it was also criticised that the arbitration court had not sufficiently taken into account the special circumstances of A.__'s practice in its assessment. In particular, the high proportion of mentally ill patients was not sufficiently included in the performance audit (E. 9.1). The Federal Supreme Court emphasised that in such cases a case-by-case examination is necessary in order to adequately take into account the particular circumstances of the practice and to make a fair assessment. Finally, the Federal Supreme Court clarified that reclaims must be based exclusively on direct costs. The lower court had not fully complied with this requirement when calculating the reclaim and had only taken into account the direct medical costs without applying the relevant provisions in full (E. 10.3). The case was referred back to the court of arbitration for reassessment.

In the present decision, the pedestrian crossing was assessed for the first time in 2015. This revealed that the pedestrian frequency at the location in question was too low (E. 3.3.1). If the paths contained in the plans or parts thereof have to be cancelled, the cantons must ensure that they are adequately replaced by existing or newly created paths, taking local conditions into account (Art. 7 para. 1 FWG). In the opinion of the Federal Supreme Court, the lower court did not take this obligation into account when it limited itself to determining the safety deficits of pedestrian lane no. 1375 based on VSS standard no. 40241 and contented itself with stating that moving the lane would not help and that an alternative location had not been proposed. By failing to clarify appropriate alternative measures, taking into account the local conditions, it incompletely established the legally relevant facts and violated federal law (E. 3.5.1).

The transmission of the data in question - by email or via the PrivaSphere platform - constitutes the preservation process. This seizure process also includes downloading and saving the data in question following the transmission. Thus, in the opinion of the Federal Supreme Court, it was not objectionable that the investigating authority saved the data transmitted to it on a data stick in order to comply with the sealing request, of which it was already aware at that time (E. 3.4.1). According to the Federal Supreme Court, the lower court violated federal law by accusing the investigating authority of a serious procedural violation that led to the rejection of the unsealing request (E. 3.4.2). The problem in this case was that the investigating authority was still able to access the original data after it had been downloaded and saved - at least for the 30 days during which the link to access the data at PrivaSphere was valid. It was therefore immediately requested to delete the edited original data after it had been backed up and sealed so that unauthorised access could be prevented. (E. 3.4.3).

The Federal Supreme Court states that Art. 32 BGS does not directly assign Gespa the task of checking all cantonal small game licences for compliance with federal law.

In the present case, the capital contribution was received by the complainant when her shareholder died. This bequest was therefore not only a capital increase within the meaning of Art. 60 lit. c DBG, but also a capital contribution within the meaning of Art. 5 para. 1bis aVStG (E. 6.5). In order to fulfil the accounting requirement in Art. 5 para. 1bis aVStG, the capital contribution must therefore not only be reported in a separate account in the commercial balance sheet, but this reporting of capital contribution reserves must also comply with commercial and accounting law (E. 7.2). In the case of open capital contributions, the purpose of the reporting obligation is already fulfilled if the company has reported all changes to the separate account to the FTA at the time the repayment is due (E.9.2.2). In the present case, the appellant correctly reported its capital contributions to the FTA (E. 9.3). The situation was different with regard to the distribution of CHF 1,080,000. The company had not even reported the distributed capital contribution reserves to the FTA when the distribution became due. As one of the conditions for the exemption under Art. 5 para. 1bis aVStG was therefore not met, the withholding tax claim arose when the repayment fell due on 21 April 2017 (Art. 12 para. 1 VStG) (E. 10).

According to the Federal Supreme Court, only persons who, as investment advisors or asset managers, causally influence the purchase or sale of taxable documents without themselves being a party to the taxable transaction can be considered intermediaries under Art. 13 para. 3 lit. b no. 2 StG (E. 6.5.1). Furthermore, Art. 13 para. 3 lit. b no. 1 StG only includes as traders persons who exclusively or for a substantial part of their activity engage in trading "for third parties". (E. 6.5.2). The Federal Supreme Court considers the criterion of commercial activity in Art. 13 para. 3 lit. b StG to be fulfilled if the activity of the trader or broker is carried out for profit, economically independently and continuously, whereby it can also be carried out as a secondary activity (E. 6.5.3). The Federal Supreme Court therefore did not classify the foundations as professional intermediaries pursuant to Art. 13 para. 3 lit. b no. 2 StG because they concluded the transactions in question in their own name and no other transactions are apparent that they would have brokered. In addition, the foundations cannot be characterised as professional traders in accordance with Art. 13 para. 3 lit. b no. 1 StG because they bought and sold the taxable documents for their own account and did not carry out this activity on a professional basis (E. 7.6). The requirements for the abusively chosen legal form were also not met in the present case (E. 8.2).

In the opinion of the Federal Supreme Court, the conditions under which the legislator wanted to automatically convert bearer shares into registered shares as of 1 May 2021 regardless of the specific individual case were not met in the present case (E. 3.3.4.2). The same also applied to the shareholders. At the time the company was deleted from the commercial register on 12 January 2005, the notification obligation pursuant to Art. 697i CO did not yet exist. Accordingly, bearer shareholders could not violate it at that time. However, even after the provisions came into force, they would not have been able to fulfil any obligation (which, however, did not exist as long as the companies were deleted) until they were re-registered. Only with the re-registration could the shareholder be subject to a reporting obligation at all, especially since Art. 3 ÜBest OR/2014, in contrast to aArt. 697i CO has not been cancelled (E. 3.3.4.3). The appellant is not dependent on a procedure pursuant to Art. 7 ÜBest OR for registration and the dismissive decision does not harm him in any way. Rather, the company must decide on his registration (E. 3.4). In order to be registered by the court, the shareholder must provide the court with sufficient proof of his shareholder status. He had not done so in the present case (E. 3.5).

In the opinion of the Federal Supreme Court, the fact that death and funeral costs that were only incurred after the date of death of the person receiving EL are not taken into account is justified against the background of the allowance of CHF 40,000 set by the legislator for their settlement (E. 7.1.3). With the use of the term "estate" in the ELG and the wording "assets on the date of death" in the ELV, the initial situation under inheritance law was also taken into account to the extent that the inheritance debts are not taken into account (E. 7.2.2) The Federal Supreme Court therefore comes to the conclusion that margin no. 4720.03 WEL contains a permissible wording with regard to Art. 16a para. 1 ELG and Art. 27a para. 1 ELV (E. 7.3). In particular, it states that the deceased entered into the corresponding debts when signing the care home contract - and thus during his lifetime. The claims of the senior citizens' centre are therefore inheritance debts. Unlike inheritance debts, these are to be taken into account as liabilities when determining the estate in accordance with Art. 16a para. 1 ELG in conjunction with Art. 27a para. 1 ELV. Consequently, the claims would have arisen at the time of death and could therefore be taken into account in the assets at the date of death as part of the estate liabilities due to the wording of Art. 27a para. 1 ELV (E. 8.2).

It is possible for the defendant in the criminal proceedings to file an action for a negative declaratory judgement in civil proceedings, according to which the opponent is not entitled to any claims on a contractual basis, as happened in the present case (E. 2.3.3). The cognition of the criminal court is limited for the action for adhesion brought by the defendant, namely to the non-contractual claims asserted by her. Accordingly, the bar on lis pendens of the respondent's action for adhesion only applies to these non-contractual claims. This action for a negative declaratory judgement cannot be held against the lis pendens of the respondent's action for adhesion as far as contractual claims are concerned. According to the Federal Supreme Court, by assuming lis pendens in the present case, the lower court violated Art. 59 para. 2 lit. d ZPO and Art. 64 para. 1 lit. a ZPO (E. 2.4).

In this case, the Federal Supreme Court considered the municipality's approach of issuing a negative building decision without any substantive coordination with the cantonal authority to be a violation of the coordination requirement under Art. 25a RPG (E. 4.3). In the case of building projects outside the building zone, there are parallel or shared responsibilities of the municipal and cantonal authorities, which must coordinate the content of their decisions due to the close factual connection (E. 4.3.2). Nevertheless, the Federal Supreme Court examined the question of whether Art. 87 para. 3 KRG/GR could be applied or interpreted in accordance with federal law to the extent that a waiver of the forwarding of the application files to the competent cantonal authority would at least be permissible if the municipality refuses the building permit only for reasons that lie within its area of responsibility and which could be answered independently of the questions of zoning conformity and eligibility for exceptional authorisation to be assessed by the cantonal authority. (E. 4.4). In the present case, however, it answered this question in the negative due to the lack of legal conformity of the provision in question with Art. 25 para. 2 RPG and Art. 25a RPG (E. 4.5).

The legal question to be assessed in this case was whether the company in question - and subsequently also the complainant as the motor vehicle liability insurer claimed against by the respondents - can invoke the employer's privilege pursuant to Art. 75 para. 2 ATSG if an accident involving an excavator occurs on a non-public traffic area, or whether the employer's privilege is also breached by Art. 75 para. 3 ATSG in these circumstances (E. 4.3). In order to assess this question, the decisive factor in the present case was whether the company, as the owner of the motor vehicle that caused the accident, was deemed to have compulsory liability insurance within the meaning of Art. 75 para. 3 ATSG. This in turn was assessed on the basis of the provisions of the Road Traffic Act (E. 4.7). According to these, strict liability under Art. 58 et seq. of the Road Traffic Act and the associated insurance do not only come into effect if an accident caused by a motor vehicle occurs on a public road, but also if the vehicle (in use) is not on public property (E. 4.7.6). Confirming the decision of the lower court, the Federal Supreme Court came to the conclusion that the employer's privilege enshrined in Art. 75 para. 2 ATSG does not apply in the present case based on Art. 75 para. 3 ATSG (E. 4.8).

In this case, it was disputed how the tax refund on lump-sum benefits from pension schemes is to be calculated if a partial repayment is made to the pension fund after the early withdrawal (E. 3). Tax rates are not subject to tax harmonisation and Art. 11 para. 3 StHG therefore does not require the cantons to set a progressive tax rate for lump-sum benefits from pension schemes. Against this background, it cannot be assumed that the federal legislator intended to use Art. 83a para. 2 BVG to impose requirements on the cantons regarding the specific calculation of the tax refund and any equalisation of progression. Rather, the cantons must be granted the same regulatory leeway in calculating the tax refund as they have in calculating the taxes on the advance withdrawal on the basis of their tariff sovereignty. (E. 4.5). If the cantons therefore have regulatory leeway when calculating the tax refund in relation to cantonal taxes, they are not obliged to use the same method for calculating cantonal taxes and direct federal tax (E. 4.6).

According to case law, the provision of Art. 31 para. 4 BV, in contrast to Art. 5 para. 4 ECHR, is to be understood in such a way that it should be possible to appeal directly to the court, not merely indirectly after passing through further administrative instances. It constitutes a special guarantee of legal recourse that goes further than the general guarantee of legal recourse in Art. 29a BV (E. 3.2). It is undisputed that the requirement of sentence 2, according to which the court must decide on the lawfulness of the deprivation of liberty as quickly as possible, is more likely to be complied with in practice if the court is called upon directly and no administrative authority is interposed. However, this urgency no longer applies if freedom is no longer at stake. Rather, in these circumstances it is sufficient if the judgement is made within a reasonable period of time in accordance with Art. 29 para. 1 BV (E. 3.4). The appellant did not submit his application to establish the unlawfulness of various police measures until 10 days after the detention on 1 May 2023. According to the Federal Supreme Court, it is therefore compatible with Art. 31 para. 4 BV if the Court of Appeal came to the conclusion that the cantonal police and thus an administrative authority had to decide on the matter first (E. 3.6).

For an action in stages, it is generally sufficient for the plaintiff to assert its claim to the rendering of accounts in the statement of claim in a sufficiently substantiated manner, as in a separate action for the rendering of accounts. In the present case, the plaintiff has at the same time sufficiently explained why it cannot be expected to quantify the claim (E. 3.6.6). To the extent that the plaintiff has a substantive right to information, it is not required to quantify approximate amounts in the context of the step-by-step action, but can be content with stating a minimum value (E. 3.7.3). If the defendant is promised a net share of a litigation result, he may assume in good faith that the parameters required to calculate this result will be disclosed to him (E. 4.3.6.3). Insofar as the third party entitled to claim does not know the agreement made with the respondent, he need not be aware of this (E. 4.3.6.4). Insofar as the parties invoke their own confidentiality interests, they could have taken these into account in the agreement on net profit sharing. Since they did not do so, the respondent did not have to assume in good faith that these could prevent a review of the promised performance (E. 4.4.1). Defects that could render the obligation to settle accounts null and void may not be dealt with in the second stage (E. 5.3). In the present case, it was also necessary to examine whether the step-by-step action based on the alleged assumption of debt was also admissible against the appellant, although the requests of the first stage were not directed against him (E. 6). In the present case, the Federal Supreme Court considered it appropriate to also allow the action in stages against the party who had cumulatively assumed the principal debt but was not obliged to settle it (E. 6.3.2).

The right to an effective defence guaranteed under constitutional and convention law must not be undermined in practice by an (overly) restrictive arrangement of the specific modalities of free communication (E. 6.1). In order to ensure order and security in the prison, it must in principle be permissible to set specific telephone times for operational reasons or to limit the number and duration of calls (E. 6.2). In the present case, the Federal Supreme Court held that the appellant had a fundamental right to telephone communication with his defence on the basis of Art. 235 para. 4 of the Code of Criminal Procedure and therefore approved his application for a "permanent telephone authorisation" with his defence. The specific arrangements for telephone contact with the defence are the responsibility of the competent enforcement authorities in accordance with cantonal law (E. 6.4).

In view of technological developments and the associated changes in people's usage habits, it is now notorious that privately used smartphones generally contain a large amount of sensitive data that affects the highly personal sphere of their owner. Accordingly, it can be readily assumed that the (complete) search of privately used smartphones involves personal records and correspondence within the meaning of Art. 264 para. 1 lit. b StPO. However, this in itself is not sufficient to justify any secret interests worthy of protection within the meaning of Art. 248 para. 1 CPC and thus no irreparable disadvantage within the meaning of Art. 93 para. 1 lit. a BGG. It follows that a complaint against the unsealing of a mobile phone can only be upheld on the basis of Art. 264 para. 1 lit. b of the Code of Criminal Procedure if the complaining party makes a substantiated case or if it is readily apparent that the interest in protecting their privacy could outweigh the interest in prosecution (E. 2.7).