Federal court case law 3rd quarter 2022

Lindt & Sprüngli AG (the appellant) has been selling chocolate bunnies wrapped in gold-coloured foil in a practically unchanged shape and design since 1952. The appellant has registered two three-dimensional shape marks for its bunnies.

The complainant is the mother of two children and has been a paraplegic since the age of 21 and is dependent on a wheelchair. Since 2014, she has been receiving assistance contributions from the respondent (IV office of the Canton of Zurich), among others. These are granted for assistance required by the insured person and provided by a natural person (assistant). The amount of the assistance contribution depends on the time required for the assistance. The time for the entire assistance requirement is calculated using a standardised "FAKT2" assessment tool. It is necessary to examine whether the lower court violated federal law when determining the total assistance requirement. According to the complainant, the times calculated by the FAKT2 assessment tool for a single paraplegic with small children do not allow the law to be implemented without discrimination or arbitrariness.

In 2018, the complainant exceeded the speed limit of 100 km/h on the motorway in Austria by 62 km/h after deducting the tolerance. In addition to a fine, she was deprived of the right to use her foreign driving licence in Austria for a period of two weeks.

Recommendation of the Federal Data Protection and Information Commissioner FDPIC on the right to information in international administrative assistance in tax matters The Federal Supreme Court clarified the question of whether the Federal Tax Administration (FTA) must inform all third parties concerned about forwarded data in the case of requests for administrative assistance. According to the Federal Supreme Court, the special legal provisions within the meaning of Art. 18a para. 4 lit. a FADP are sufficiently specific to ensure that non-affected parties can see from the FTA that data can be obtained and forwarded. There is a legal basis for obtaining information about non-affected persons in accordance with the StAhiG. The prior information obligation does not apply due to the special legal basis (Art. 4 para. 3 FADP). It should be noted that this generally applies; however, in individual cases, if the data to be transferred proves to be particularly worthy of protection, it may be necessary to inform the third party in advance (E. 5.3.6.).

Income compensation for service personnel and maternity After completing his training as a businessman, the complainant did around two years of military service as a conscript. During this time, he received the minimum rate of compensation for loss of earnings. After his military service, he took up a position in which he earned around CHF 60,000 per year. He now demanded that his loss of earnings compensation be calculated retrospectively on the basis of this income. The specific dispute was whether he was to be categorised as non-employed or employed. The Federal Supreme Court ruled in favour of the appellant, as he credibly argued that he would have taken up the job directly without the military service. This was supported in particular by the fact that he found a job directly after his military service (E. 3.3.). It also did no harm that the appellant filled out his registration cards "incorrectly". This was because he lacked the necessary information (E. 4.). The complainant thus prevailed with his request.

Custody (Art. 64 para. 1 SCC) The detention of an offender is out of the question if it can only be proven that he is involved in a terrorist organisation within the meaning of the Al-Qaeda/IS Act. The Federal Supreme Court rejects the appeal lodged by the Office of the Attorney General against a judgement by the Appeals Chamber of the Federal Criminal Court.

Accident insurance (prerequisite for proceedings) This case concerned the subject matter jurisdiction of an arbitration tribunal in social insurance disputes. Disputes between insurers and health resorts are decided by an arbitration tribunal with jurisdiction for the entire canton (Art. 57 para. 1 UVG). The arbitration tribunal pursuant to Art. 57 UVG has subject-matter jurisdiction for disputes between a service provider (in this case the complainant) and an accident insurer regarding the latter's refusal to pay for the costs of an insured person's stay in an institution due to a lack of appropriateness. Whether a dispute between an insurer and a service provider falls within the material jurisdiction of the arbitration court cannot be assessed in isolation from sometimes complex considerations of substantive law, such as the nature of the legal relationship in question, its specific legal effects and the classification of the underlying legal norms under private or public law (E. 4.3.2.). In the present case, the appellant repeatedly referred to BGE 144 V 138, but according to the Federal Supreme Court was unable to derive anything in its favour from this. This judgement was based on a specific claim for compensation by the service provider against the insurer for partially unreimbursed services in application of the agreed, but now adjusted TARMED tariff structure. In contrast, the dispute to be assessed here revolved around the question of an allegedly generally competition-distorting behaviour of the respondent, without an actual violation of Art. 10 para. 2 UVG or another provision of the UVG having been specifically identified or substantiated (E. 5.5.).

"Overdetention", compensation; arbitrariness, right to be heard Overdetention that does not result from precautionary closed detention within the meaning of Art. 15 JStG does not give rise to a claim for compensation. Preventive closed detention within the meaning of Art. 5 in conjunction with Art. 15 JStG. According to the Federal Supreme Court, precautionary closed detention within the meaning of Art. 15 JStG clearly differs from pre-trial detention within the meaning of Art. 110 para. 7 and Art. 51 StGB and Art. 431 para. 2 StPO in view of its objective. The fact that a (precautionary) placement exceeds the duration of any simultaneous deprivation of liberty is justified - provided it is proportionate - by its educational and/or therapeutic purpose (E. 1.6.5.).

Ordering pre-trial detention, court clerk as substitute judge A full-time court clerk cannot simultaneously act as a substitute judge. The Federal Supreme Court holds that the (undisputed) formal hierarchy between the members of the lower court panel that exists at the same time outside the panel creates at least the appearance of an informal hierarchy within the panel that is likely to impair the internal judicial independence of the persons appointed as substitute judges (E. 5.3.5.).

Sentencing; principle of investigation (Art. 6 StPO), obtaining reports and information (Art. 195 StPO) The Federal Supreme Court held that the cantonal court should have obtained a new criminal record extract on the accused after the conclusion of the evidentiary proceedings. Since the evidentiary proceedings, a new summary penalty order was issued against the accused, which resulted in a criminal record entry. This information would have been relevant for the appeal decision. It is thought-provoking that the public prosecutor's office was able to challenge the decision even though it was aware of the summary penalty order before the appeal hearing and months before the decision, but did not submit it. The practice of the Federal Supreme Court on the disloyal behaviour of defence lawyers who submit objections "too late" comes to mind here.

Collocation This appeal relates to the question of the limitation period for a claim filed in bankruptcy, which is based on an English judgement. The authorisation is the subject of a dispute in a negative schedule of claims procedure. While the High Court, applying the law of the state of the judgement (England), denied that the claim was time-barred and confirmed the schedule of claims of the defendant co-creditor, the appellant considers the respondent's claim to be no longer enforceable. He primarily criticises the non-application of English law and a violation of Art. 96 lit. a BGG (E. 3.). In the present case, however, the lower court correctly based its decision on English law. It therefore did not violate any law when it based the limitation period for the disputed claim (as requested by the complainant) on the English law of the state in which the judgement was rendered and included all questions relating to the legal influence of time on the obligation (commencement, duration, preservation of the limitation period for the judgement) (E. 3.3., 3.4).

Simplified merger; indirect shareholdings (Art. 23 para. 1 lit. b FusG) In the present case, the question is whether the requirements for a facilitated merger pursuant to Art. 23 para. 1 lit. b FusG are met. The provision requires that someone (or a group of people) "owns all shares of the corporations involved in the merger" that grant voting rights. It was controversial whether the requirement in Art. 23 para. 1 lit. b FusG to own all shares is also fulfilled if the shares are not held directly but indirectly via one or more (in each case fully controlled) intermediate companies. This was denied by the lower court and the commercial register office, but affirmed by the appellant (E. 3.). The Federal Supreme Court admits that there are plausible reasons from an economic point of view to authorise such a simplified merger (E. 5.2.2. f.). However, the legislator has legislated differently. The law provides for a numerus clausus of permissible reorganisations and, in particular, a numerus clausus of permissible mergers (E. 6.1.). Consequently, the requirements for a simplified merger pursuant to Art. 23 para. 1 lit. b FusG are only met if the legal entity, the natural person or the legally or contractually affiliated group of persons directly owns the (voting) shares of the companies involved in the merger (E. 6.4.).

Decision of the residents' council of 25 March 2019 (debt brake initiative) Based on a successful popular initiative, an amendment to the municipal bylaws was submitted to the Aarau Residents' Council. The residents' council ultimately adopted a slightly modified amendment. It was now disputed whether this amendment was in line with the popular initiative. The voters and, in particular, the initiators, can appeal on the grounds of the guarantee of political rights (Art. 34 para. 1 BV), claiming that the implementation decision does not correspond to the content of the initiative, dilutes it or barely reflects it. The text of the initiative must be interpreted in accordance with the recognised principles of interpretation (E. 2.1.). The Federal Supreme Court came to the conclusion that the implementation text was not compatible with the initiative text. The decisive factor here was in particular "what the voters had to expect" (E. 2.3.).

Building objection, structure plan, utilisation plan The revision of the cantonal structure plan of the canton of Graubünden showed that the municipality of Klosters-Serneus is one of those municipalities whose residential, mixed and centre zones are oversized and should therefore be reduced (E. 3.5.). Nevertheless, three building licences were granted in the municipality of Klosters. Consequently, the question to be examined was whether the granting of building permits without prior adjustment of the size of the building zones would contradict the federal law requirement that oversized building zones must be redimensioned (see Art. 15 RPG) (E. 3.6.). Under the given circumstances - namely the proven oversizing of the municipality's building zones, the location of the plots in question and the advanced age of the land use planning - the municipality would have been obliged to examine whether the allocation of the building plots to the residential zone or the building zone was still justified with regard to Art. 15 para. 1 and 2 RPG before granting the building permits to the respondents. Before the already initiated review of the building zones across the entire municipal territory had been completed, it should not have issued any building permits for the building projects (E.3.6.3.).

The present dispute centres on the general deduction for contributions to restricted pension plans pursuant to Art. 9 para. 2 lit. e StHG and Art. 33 para. 1 lit. e DBG. The complainants were of the opinion that the contributions made by the complainant to the tied pension scheme totalling CHF 1,100 were fully deductible (E. 2.1). The Federal Supreme Court held that nothing can be deduced from Art. 37a para. 1 DBG and Art. 11 para. 4 StHG on this question (E. 4.2.3.). However, in view of the importance of building up a tied personal pension provision in the absence of occupational pension protection, it was justified to include BGSA income in the calculation of the pensionable income pursuant to Art. 82 BVG in conjunction with Art. 7 para. 1 lit. Art. 7 para. 1 lit. b BVV 3 to take into account the so-called large pillar 3a contribution (E. 5.4.). The appeal was therefore upheld (E. 6.).

Planning permission; building project outside the building zones (horse keeping) This case concerned a complex planning application in connection with the keeping of horses. In particular, the Federal Office for Spatial Development (ARE) lodged an appeal against the corresponding authorisation. First of all, it had to be examined whether the ARE was authorised to appeal at all (E. 1.). The various problem areas were then addressed (summarised in E. 11.).

Compensation for loss of earnings for service personnel (assessment of compensation) It was disputed on which salary the respondent's compensation for loss of earnings for civilian service after completing his education (bachelor's degree in economics) should be calculated. The respondent had obtained his bachelor's degree immediately prior to his service. The cantonal court considered that the bachelor's graduate should have been credited with a hypothetical starting salary based on a "normal" full-time position (E. 5.4.1.). The Federal Supreme Court overturned this and held that it was necessary to determine whether it was more likely that the appellant would have taken up a "normal" position as an economist or merely an internship. It came to the conclusion that the internship would have been more likely, which is why the complainant should only be credited with an internship salary (E. 5.4.2.).

Accident insurance (causal link) The complainant suffered an accident in 1989 while working on a building site. He was subsequently confined to a wheelchair and received DI benefits from Suva. In 2019, he was diagnosed with a right shoulder injury resulting from a car accident in 2015. In the same year, the complainant also fell in his wheelchair and injured his left shoulder. Suva denied an obligation to pay benefits for the accident concerning the left shoulder because the complainant was not insured with it for the accident and there was also no adequate causal link to the accident in 1989. Consequently, the question was when an accident constitutes a further accident (in particular E. 6.3.). In this case, the Federal Supreme Court denied an adequate causal link between the events (E. 7.4.).

Entry in the civil status register of a birth abroad (surrogacy) The judgement is related to the recent judgement 5A_545/2020 (07.02.2022). The parents conceived a child abroad via a surrogate mother. The sperm donation came from the father. The question then arose as to how the child should be registered in Switzerland. In this decision, the main question was the applicable law. Swiss law applies to the registration in the civil status register of the intended parents of a child born in Georgia by a surrogate mother who reside in the canton of Aargau. As the sperm donor, the intended father can establish his legal paternity immediately by recognising the child. The intended mother then has the option of adopting a stepchild, whereby the adoption authorities should proceed quickly, generously and pragmatically in such cases.

Matrimonial protection measures Spousal maintenance in matrimonial protection proceedings was in dispute before the Federal Supreme Court. From a procedural point of view, it is interesting that the Federal Supreme Court states that although a cross-appeal is not admissible before the Federal Supreme Court, the respondent can assert all grounds for appeal in his response to the appeal in order to criticise any errors in the cantonal decision that could be detrimental to him in the event of a different assessment of the case by the Federal Supreme Court (E. 4.). Furthermore, the Federal Supreme Court defines the "maintenance due" in matrimonial property protection in a cautionary manner. The maintenance due is to be distinguished from the minimum subsistence level and is not limited to this in favourable circumstances. On the contrary, both spouses are entitled to the continuation of maintenance up to the amount of the determined former joint standard within the scope of the available means as long as the marriage exists (E. 5.). A temporal limitation of the maintenance contribution necessary to achieve the maintenance due is alien to the law of spousal maintenance; as long as the marriage bond exists - and thus in particular in matrimonial protection proceedings - the equality principle underlying Art. 163 ZGB, according to which, as already mentioned, both spouses are entitled in the same way and, in principle, irrespective of criteria such as life style and duration of marriage, to the continuation of the jointly lived standard within the framework of the available means; the only limiting factor here is actual or hypothetical self-sufficiency (E. 5.).

Cancellation or reissue of the residence permit The complainant contested the cancellation of his residence permit. He invoked the protection of private life in accordance with Art. 8 ECHR (E. 4.1.). The fact that the complainant had left Switzerland for eight months in 2018/2019 was particularly critical. The Federal Supreme Court held that the protection of private life under Art. 8 ECHR should enable a foreign person to remain in Switzerland in order to maintain the social relationships that have developed. However, the corresponding right of residence only concerns the extension of the residence permit, not the granting of a new one (E. 4.6.). According to Art. 61 para. 2 AIG, the residence permit expires after six months if the foreign national leaves Switzerland without deregistering. The legislator has thus based the expiry on a formal criterion (E. 4.7.). This means that the residence permit expired by operation of law due to the stay abroad in accordance with Art. 61 para. 2 AIG and the invocation of Art. 8 ECHR was unfounded, as the issue in this case was a new issue and not an extension (E. 4.8.).

State and municipal taxes of the Canton of Lucerne, 2019 tax period The question at issue was how to determine the appellant's place of residence in a tax law context. The Federal Supreme Court stated in advance that the objective burden of proof for domicile lies with the tax authorities, but that the latter may rely on circumstantial evidence (E. 3.1.). Domicile under tax law is based on the domicile under the Civil Code. According to established Federal Supreme Court case law, however, the criterion of the intention to remain permanently in Art. 23 para. 1 ZGB, Art. 3 para. 2 DBG and Art. 3 para. 2 StHG is not to be understood as meaning that it depends on the taxpayer's inner will. Rather, residence is determined solely on the basis of the totality of objective facts recognisable to third parties, in which the intention of the person concerned to remain permanently is manifested (E. 3.2.1. f.). If a person maintains contacts with several places, the place with which he or she has the stronger ties must be taken into account when determining tax residence (E. 3.2.3.). The present case raised the question of how the above principles for determining the domicile of married taxpayers apply if the taxpayer maintains a joint residence with their spouse, but at the same time maintains a relationship with their children at another location and also stays overnight at this other location with a certain regularity. A preponderance of the relationship with the spouse or partner is to be assumed in any case if the taxable person does not (or no longer) need to look after their children or if the childcare expenses are of secondary importance, either because they are not entitled to sole custody or not at all, or because the children are already at an advanced school age or have even reached the age of majority (E. 3.5.2.). As the complainant's children were already of an advanced age or even of full age, his residence was established with his partner.

Direct federal tax, 2014 tax period In dispute and to be examined in the case itself was the legal question under federal law as to whether the book profit arising from the sale of a partial package of less than ten per cent in a target company entitles the holder to a participation deduction if a partial package of at least ten per cent of these participation rights has never been sold before (E. 4.1.). The Federal Supreme Court denied this possibility in this constellation and dismissed the appeal.

Fiction of withdrawal pursuant to Art. 407 para. 1 lit. c StPO In this judgement, the Federal Supreme Court interpreted the fiction of withdrawal in accordance with Art. 407 para. 1 lit. c of the Code of Criminal Procedure. According to the Federal Supreme Court, the fiction of withdrawal also applies if the complainant is in contact with his lawyer but nevertheless does not designate a proper domicile for service. In such a case, the complainant "cannot be summoned" (E.1.9.2.). A summons via the Official Gazette (Art. 88 StPO) is not possible because Art. 407 StPO has an "independent meaning" (E.1.6.2.).

Violation of traffic regulations; arbitrary assessment of evidence The Federal Supreme Court ruled that penalty orders that were not personally signed were invalid. Referral to court does not remedy this defect. In accordance with Art. 356 para. 2 of the Code of Criminal Procedure, the court of first instance decides on the validity of the penalty order and the objection. If the summary penalty order suffers from formal defects, it is invalid. This also applies to penalty orders that are invalid due to the lack of a (handwritten) signature. The issuing of a valid penalty order is therefore a prerequisite for the substantive judgement of the case by the court. Subject to the following explanations, the referral to the court neither replaces the summary penalty order nor cures the formal defect (E.1.5.1.).

Disability insurance (disability pension) The complainant was awarded a disability pension from 1 August 2015 to 31 August 2016. The subject of the judgement was in particular the ability to reintegrate. The corresponding clarifications were not made by the lower court, which is why the appeal was upheld (E. 7.).