Federal court case law 3rd quarter 2024

A warning letter regarding the infringement of a copyright cannot destroy good faith. As long as the infringer of the copyright occupies a defensible legal position, there is no bad faith (E. 2.3 f.). In the case of copyright infringement, fault depends on whether the infringer knew or should have known of the existence of the pre-existing property right and its scope of protection (E. 3). The claim of the person whose absolute rights have been infringed for the surrender of the profit is based on the rules of unjust enrichment in the case of good faith and only in the case of bad faith on business fraud (E. 4.1). The agreements concluded in the context of a settlement are not suitable for determining a hypothetical licence fee (E. 4.4).

The Federal Supreme Court held that the date of service of the payment order is to be taken as the date of an "enforced claim" pursuant to Art. 8a para. 3 lit. d SchKG (E. 4.4.2). If the debtor asserts a corresponding application on the grounds that the claim was already paid before the debt enforcement proceedings were initiated, he must provide evidence of the payment (E. 4.5.1).

As a tax judicial authority, the Tax Appeals Commission may not pass judgement on tax years that are not submitted to it for assessment either primarily or in terms of preliminary questions. Such an overstepping of authority results in the nullity of the decision for these tax periods (E. 5.2). A discretionary assessment decision is null and void if the qualified substantive incorrectness is compounded by a serious procedural misconduct on the part of the assessment authority (E. 6.9.1). This is the case if the assessment authority misuses the discretionary assessment to penalise the taxpayer for not submitting a tax return or otherwise failing to cooperate sufficiently in the assessment procedure (E. 6.9.2). This would be contrary to the clear wording, the legal system and established case law, would be in gross contradiction to the legal order and would no longer comply with fundamental and human rights principles (E. 6.9.2).

If the value in dispute limit for an appeal in civil matters pursuant to Art. 74 para. 1 lit. b BGG is not met, the appeal is only admissible if a legal question of fundamental importance arises. The appellant does not raise a controversial legal issue with the question of the cognition of the judge hearing the appeal - a legal issue of fundamental importance can only be assumed with reservations (E. 1.3.1 f.). A judgement that expressly orders the payment of maintenance beyond the age of majority is then deemed to be a definitive title to the opening of legal proceedings pursuant to Art. 80 para. 2 no. 2 SchKG if it specifies the amount of maintenance owed and determines its duration (E. 3.3). However, the legal opening is to be refused if the debtor proves the fulfilment of the resolutive condition beyond doubt by means of documents, whereby the requirement for documentary evidence does not apply if the creditor unconditionally recognises the fulfilment of the condition or if this is notorious. A child maintenance pension that is to be paid beyond the age of majority until the end of vocational training is deemed to be resolutely conditional (E. 3.4).

The requirements of imminent crimes or serious offences and a significant direct threat to safety, as well as the requirement of prior offences, were generally upheld in the revision that took place with regard to the simple risk of reoffending (judgement 7B_155/2024 E. 3.2, for publication; E. 3.1). The decisive criteria in the assessment of the recidivism prognosis are in particular the frequency and intensity of the offences in question (Art. 221 para. 1 lit. c CCP; E. 4.4). With regard to the distinction between expert reports and official reports, the Federal Supreme Court noted that some scholars are of the opinion that in cases where an official report is equivalent to a "genuine" expert report in terms of its scope and scope, the corresponding provisions regarding expert reports should apply. Otherwise, the impression could arise that the authority is attempting to circumvent the opportunity to participate provided for in an expert opinion, which would violate the right to be heard (E. 3.5.3). This is supported by the Federal Supreme Court if, following the preparation of a brief expert opinion, the expert consulted is to be tasked with preparing a more detailed expert opinion on the same event (E. 3.6.3).

There is no violation of the right to be heard if official reports are not obtained from the public prosecutor's office or the criminal court in order to assess the question of conditional release from prison. The examination of the application for conditional release depends to a large extent on the behaviour of the convicted person in prison and accordingly the official reports of the aforementioned authorities are not relevant to the decision (E. 2.3 f.). Art. 4 f. V-StGB-MStG can only come into play if the criminal proceedings, which simultaneously result in enforceable custodial sentences, have been finalised (E. 3.4.2).

If the higher cantonal instance decides after a matter has been referred back by the Federal Supreme Court without at least (briefly) examining whether significant changes have occurred, this constitutes a violation of the unrestricted principle of investigation under Art. 296 para. 1 ZPO and of the right to be heard under Art. 29 para. 2 BV (E. 5.1 f.). Within the scope of application of Art. 296 para. 1 ZPO, admissible novelties may be introduced into the proceedings irrespective of the restrictions of Art. 317 para. 1 ZPO. This is also unproblematic with regard to Art. 99 para. 1 BGG (E. 5.3).

In the present case, the question arose as to whether the FTA is authorised to issue a ruling pursuant to Art. 57 f. VStG is authorised to issue a ruling and whether an action can be brought against it before the Federal Supreme Court (E. 1.2 f.). After interpretation (E. 1.5), the Federal Supreme Court came to the conclusion that the relevant statutory provisions (Art. 20 para. 4 VO PStA in conjunction with Art. 57 and 58 VStG) do not authorise the FTA to order the reduction of the canton's claim against the Confederation in such a way that the canton's action before the Federal Supreme Court would be excluded under Art. 120 para. 2 BGG (E. 1.6). In addition, it was disputed in what proportion the local authorities have to bear the burdens from the lump-sum tax credit (E. 2). As it concerned income from 2018, the version of the Ordinance on the Offsetting of Foreign Withholding Taxes (PStAO) valid at that time was to be applied (E. 3). The Federal Supreme Court held that Art. 5 para. 4 sentence 4 in conjunction with Art. Art. 20 VO PStA is to be understood in such a way that the shares of the three municipalities (of one third each) are adjusted in the ratio of the partial taxation of the canton (and the municipality) to that of the federal government and the modified shares are then extrapolated to 100% (E. 5.2.3).

The decisive factor for the personnel leasing company's obligation to pay contributions within the meaning of Art. 20 para. 3 AVG is that the deployment company falls within the operational scope as described in the declaration of general applicability of the relevant CEA (E. 6.4.4). The Federal Supreme Court also stated that the conditions set out in Art. 48c para. 2 AVV for an exemption from the obligation of the personnel leasing company to pay contributions within the meaning of Art. 20 para. 3 AVG must be fulfilled cumulatively (E. 7.3.2). The Federal Supreme Court confirmed its case law according to which Art. 41 para. 2 BVG is applicable for the assessment of the limitation period for contribution claims - of employee welfare foundations subject to the FZG (E. 8.3.1 f.).

Whether a canton decides on the main issue or "only" on a preliminary issue regarding the place of assessment - without being competent to do so - does not lead to any different legal consequences. In both cases, the decision of the incompetent canton is null and void (E. 3.5.3). Tax sovereignty is a constitutive element of the formal legal basis that gives rise to the tax liability (E. 3.6.2). If only one of the constituent elements is missing, or if it was only supposedly present, the taxable person cannot be liable to pay tax. If the taxable person has already fulfilled the (alleged) tax claim, the question of reversal arises (E. 3.6.3). Firstly, the direct federal tax - less the cantonal share - is due to the federal government. If an incompetent canton has now levied the tax, the Confederation remains indemnified as the final creditor. In this case, the taxpayer has made an exempting payment (E. 3.6.5). The canton, which was not responsible for levying the tax, must appeal to the FTA ex officio (E. 3.6.6). Finally, the cantonal share as such cannot be paid to the incompetent canton ex officio. This share must be forwarded ex officio to the competent canton (E. 3.7.2).

The decisive criterion for the operational scope (of the CEA) is the sector to which a company belongs. The activities that characterise the company are decisive (E. 4.1.2). Declarations of general applicability of collective labour agreements must be interpreted in accordance with the general principles of statutory interpretation. It must be readily recognisable to the parties whether they are subject to the CLA or not, whereby this requirement is not of independent significance. Rather, it must be considered in connection with the classic elements of statutory interpretation (E. 4.3; E. 4.4.4). For the operational scope of application, it is irrelevant how and with which aids the formative activities are carried out. The physical strain is to be taken into account within the scope of personal application (E. 4.4.3).

In the present case, the question arose as to whether the complainant was to be qualified as an employee employed in Switzerland within the meaning of Art. 1a para. 1 lit. a UVG at the time of the accident (E. 4.1). Based on the teleological interpretation, the Federal Supreme Court came to the conclusion that the purpose of the UVG was to provide mandatory insurance for the employee limited to the place of work in Switzerland (E. 7.2.2). It also follows from the legal classification that, according to the principle of territoriality, Switzerland is meant as the actual place of work (E. 7.2.3). It is not sufficient for the work result to be achieved in Switzerland in order to assume that the work is carried out in this country (E. 8.3.1). In casu, there was no insurance cover under the UVG for the teleworking complainant, who had never worked in Switzerland (E. 8.3.1 f.).

The Federal Supreme Court confirmed its case law according to which the "personal relationship" criterion developed by case law is not of independent significance. Rather, this criterion must be considered in close connection with the specific legal transaction and its structure (E. 3.5.1).

AHV and IV pensions, supplementary benefits and benefits from the family equalisation fund cannot be seized. Attachment of these benefits is null and void. On the other hand, the prevailing opinion is that savings accumulated from these social insurance benefits are attachable, even if they are held in the transitory account to which the non-attachable benefits are transferred. This is justified by the fact that the list in Art. 92 SchKG is exhaustive and, subject to a provision to the contrary, the claim to authority does not extend to monetary surrogates or other substitute objects (E. 2.3).

According to Art. 1 para. 2 lit. d Lugano Convention, arbitration is excluded from the material scope of the Lugano Convention. If, on the other hand, a court of a contracting state decides on the merits of the case regardless of the existence of an arbitration agreement, the exclusion of arbitration pursuant to Art. 1 para. 2 lit. d Lugano Convention does not apply (E. 5.3; BGE 127 III 186 E. 2). The refusal of recognition pursuant to Art. 34 para. 3 Lugano Convention presupposes that the foreign decision either decides the same subject matter of the dispute differently or is based on premises that are incompatible with the substantive legal force or formative effect of the domestic judgement (E 6.3). If the agreed arbitral tribunal seated abroad has declared that it lacks jurisdiction in the exercise of its competence and the legal remedies provided for this are not taken, i.e. if the arbitral award is recognised in Switzerland, the state courts in Switzerland are bound by this arbitral award and not by the negative jurisdiction decision of another state court that has declared that it lacks jurisdiction on the basis of the arbitration agreement that it considers to be effective (E. 6.4.2).

The Federal Supreme Court had to deal with the issue of calculating monthly time limits. The interpretation of paragraphs 1 and 2 of Art. 142 ZPO was disputed. The question arose as to whether the two paragraphs should be considered in combination or in isolation (E. 5.4). On the one hand, the Federal Supreme Court commented on the doctrine (E. 5.4.1 f.), on the other hand, it interpreted Art. 142 para. 2 ZPO (E. 5.5). The result of the interpretation of Art. 142 para. 1 and 2 ZPO is that Art. 142 para. 2 ZPO is to be interpreted in the sense that the "day on which the time limit began to run" is not based on Art. 142 para. 1 ZPO, but refers to the day of the event triggering the time limit (E. 5.6). The event triggering the time limit is deemed to be the service of the authorisation to sue (E. 5.6; 4.5). This practice corresponds to both the European Convention on Time Limits (E. 4.3.1.2) and the calculation of a procedural one-month time limit in administrative and criminal law (E. 5.5.4.1.2).

Art. 124e ZGB also governs cases in which a cash or capital payment or a WEF advance withdrawal took place during the marriage (E. 4.3.1). The division of the BVG retirement pension pursuant to Art. 124e ZGB is based on the date on which the divorce became final (E. 4.3.5). It cannot be concluded from the fact that WEF advance withdrawals cease to be part of the occupational benefit scheme when the insured event occurs that the other spouse should not be granted any compensation for the termination benefit that no longer exists. Rather, it can be concluded from Art. 124e ZGB that the spouse of the beneficiary is entitled to compensation if compensation from the occupational pension scheme is not possible (E. 4.4.1; BGE 127 III 433 E. 2b).

The Federal Supreme Court states that neighbours as complainants can demand that the building project be reviewed in the light of all those legal principles that have a legal or practical effect on their position in such a way that they will gain a practical benefit if they win (E. 2.1; BGE 141 II 50 E. 2.1). Building authorities are bound by the coordination requirement pursuant to Art. 25a RPG. According to the case law of the Federal Supreme Court, subsequent procedures are only permissible if this appears objectively reasonable and no significant new effects or changes for the project result or could result from this. If partial aspects of the building still need to be approved before construction begins, this constitutes a building permit granted subject to suspensive conditions. Insofar as the building authority has a margin of discretion in assessing the fulfilment of the condition, the building permit procedure is deemed not yet completed (E. 2.2.2). If it is assumed that the building permit procedure has not (yet) been completed, the Federal Supreme Court will not hear the appeal if the requirements of Art. 92 et seq. BGG are not fulfilled (E. 2.6). In casu, the contested judgements did not conclude the building permit procedure, as on the one hand the legal validity of the building permit was suspended and on the other hand not all relevant plans had yet been definitively approved (E. 2.7.1). There was therefore an interim decision that did not fulfil the requirements for independent contestability (E. 2.7.2 f.).

The Federal Supreme Court states that neighbours as complainants can demand that the building project be reviewed in the light of all those legal principles that have a legal or practical effect on their position in such a way that they will gain a practical benefit if they win (E. 2.1; BGE 141 II 50 E. 2.1). Building authorities are bound by the coordination requirement pursuant to Art. 25a RPG. According to the case law of the Federal Supreme Court, subsequent procedures are only permissible if this appears objectively reasonable and no significant new effects or changes for the project result or could result from this. If partial aspects of the building still need to be approved before construction begins, this constitutes a building permit granted subject to suspensive conditions. Insofar as the building authority has a margin of discretion in assessing the fulfilment of the condition, the building permit procedure is deemed not yet completed (E. 2.2.2). If it is assumed that the building permit procedure has not (yet) been completed, the Federal Supreme Court will not hear the appeal if the requirements of Art. 92 et seq. BGG are not fulfilled (E. 2.6). In casu, the contested judgements did not conclude the building permit procedure, as on the one hand the legal validity of the building permit was suspended and on the other hand not all relevant plans had yet been definitively approved (E. 2.7.1). There was therefore an interim decision that did not fulfil the requirements for independent contestability (E. 2.7.2 f.).

In the present case, the Federal Supreme Court had to examine whether the lower court violated federal law by denying the respondent's obligation to pay benefits for the claimed Covid-19 infection at the workplace with subsequent Long Covid disease as an occupational disease pursuant to Art. 9 para. 1 UVG (E. 2). In the opinion of the FOPH, a particular risk exposure in connection with the occupational activity is required for the accident insurer to be obliged to pay benefits due to an occupational disease (E. 3.3). In the present case, the complainant was not exposed to the specific risk of infection of a health-endangering workplace through her work. The fact that she came into contact with nursing staff and doctors without protective measures, particularly during the lunch break when eating together, and that patients with suspicious symptoms on the complainant's ward were initially quarantined in her room, cannot justify the natural presumption of a work-related infection. Liability of the respondent for occupational disease based on the presumption of Art. 9 para. 1 UVG in conjunction with No. 2 lit. b of Annex 1 to the UVV is therefore out of the question (E. 4.7).

In this case, the Federal Supreme Court had to decide whether the investigation of facts is considered a typical activity of a lawyer and is therefore protected by professional secrecy (E. 3). In this context, the investigation of facts is part of the core area of a lawyer's work and is therefore protected by the attorney-client privilege, as it is not possible to provide proper legal advice or representation without knowledge of the legally relevant facts. Evidence that is in the hands of the client is not protected simply because it has been discussed with the legal representation, annotated by it or sent to it as a copy (see BGE 143 IV 463 E. 2.3), and evidence that has been handed over to the legal representation can also be secured in its hands under certain circumstances (E. 4.1). In addition, the disclosure of disputed information within the scope of a duty to co-operate enforceable under supervisory law does not lead to the loss of the confidential nature of the transmitted attorney correspondence (E. 5.2).

In this case, it was disputed whether there can be room for post-marital maintenance when the maintenance debtor reaches the normal retirement age (E. 3). According to the Federal Supreme Court, the maintenance contributions are determined in the two-stage concrete calculation method on the basis of the current (or clearly foreseeable) circumstances. The Federal Supreme Court stated that after almost 50 years of marital cohabitation with classic role sharing and joint children and in view of the advanced age of the parties, which is well above retirement age, a limitation of the maintenance obligation is not justified. In this respect, the maintenance obligation in the present case lasts until the death of one of the spouses (E. 3.3). Furthermore, an outcome under maintenance law cannot constitute discrimination on the basis of nationality, as the two-tier concrete method is not linked to the nationality of the parties, but to the specific economic circumstances (E. 4.3).

The Federal Supreme Court clarifies that, in the context of tender procedures, the appeal period begins with the individual notification of the decision, not with the subsequent publication on a public platform such as SIMAP (E. 3.5.3). The Federal Supreme Court confirmed the view of the Administrative Court that the appeal period begins with the individual notification of the decision and not with the later publication on SIMAP (E. 3.4 and 3.5). Individual notification takes precedence over publication, and the Federal Supreme Court pointed out that the appellants, as experienced construction companies, should be familiar with this regulation (E. 3.5.2). A violation of the protection of legitimate expectations was denied, as the statements of the project manager regarding legal issues could not be considered binding (E. 5.2).

The Federal Supreme Court confirmed that the obligation to pay contributions generally begins when the divorce decree becomes formally final and that a deviation from this is only justified in special circumstances (E. 3.2.1 f.). A hypothetical income is taken into account if an activity is reasonable and possible. While the question of which activity is reasonable is a question of law, the question of the possibility of the activity recognised as reasonable is a question of fact. However, the principle exists that if it is possible to take up gainful employment, this is also considered reasonable (E. 4.1). In the present case, the lower court did not make an arbitrary decision when it recognised a hypothetical gainful employment of 80% for the appellant (E. 4.3.4). Since the appellant had already known since the interim measures decision that the school level model applied to her, a short transitional period can be justified (E. 4.4.2). Finally, the Federal Supreme Court held that a time limit on post-marital maintenance is also possible in the case of a life-defining marriage (E. 5.4.2).

In principle, an IV pension claim can only arise after the reintegration measure has ended. The situation is different in the case of measures which are intended to determine whether the insured person is capable of integration at all and which deny the insured person's ability to integrate; in this case, a pension can be awarded retroactively (E. 5.2.2). As part of its power to review the law, the Federal Supreme Court had to review whether the Federal Council had adhered to the limits of the powers granted to it by law, i.e. by Art. 28a para. 1 sentence 2 IVG, when enacting Art. 26bis para. 3 IVV (E. 9.1). After interpreting Art. 28a para. 1 sentence 2 IVG, the Federal Supreme Court came to the conclusion that the deduction from the table salary stipulated in Art. 26bis para. 3 IVV does not comply with federal law (E. 10.6). In particular, reference to the legislative materials shows that the previous case law of the Federal Supreme Court is essentially being adopted and that the degree of disability is to be determined in principle unchanged from this case law (E. 9.4.1). In the absence of available alternatives, the previous case law principles must be applied with regard to the factors to be taken into account and their weighting (see BGer 8C_182/2023). This means that Art. 26bis para. 3 IVV in the version in force until the end of 2023 can be applied in accordance with the law (E. 10.6).

Private plaintiffs must explain to the Federal Supreme Court on what grounds the contested decision may affect which civil claim. If the appeal does not meet the strict requirements, it can only be upheld if the nature of the offence under investigation makes it readily apparent which civil claims are at issue (E. 2.1). The exception to this is the Star practice, according to which the violation of procedural rights, the disregard of which constitutes a formal denial of justice, can be criticised regardless of a lack of legitimacy (E. 2.3). The Federal Supreme Court went on to state that, according to the Swiss Civil Code, personality begins with life after full-term birth and, accordingly, unborn life, which is protected by Art. 118 of the Swiss Criminal Code, does not have personality in the legal sense de lege lata. The unborn life is not a damaged person or a victim in the criminal law sense, which is why the private plaintiff cannot be considered a relative within the meaning of Art. 116 para. 2 StPO (E. 3.3.3 f.).

The operator of a fixed telecommunications network requested the competent municipality to grant it a licence in accordance with Art. 35 of the Telecommunications Act (TCA) for the construction of an additional telecommunications connection line outside the building zone. The municipality rejected the application and also demanded an ordinary building permit procedure. The Federal Supreme Court found that a cantonal building permit is required in addition to the authorisation pursuant to Art. 35 TCA (E. 3.8). This does not lead to undue delays in the expansion of the existing line network, as applications can be expected to be dealt with swiftly on the basis of Art. 29 para. 2 BV and delays due to appeal proceedings regarding authorisations pursuant to Art. 35 TCA cannot be ruled out in any case (E. 4.3).

A separate approval procedure was carried out for the "cantonal road construction project WOV" and the implementation project "N02 half-connection Altdorf", which the Federal Supreme Court considered to be correct (E. 2.2.2). However, the Federal Supreme Court criticised the fact that the effects of the respective sub-project, in particular the noise and air pollutant emissions, were only taken into account in the (separate) planning approval procedures and that no assessment of the overall effects was carried out, as the two projects constitute one (overall) installation under noise protection law in accordance with Art. 25 USG (E. 2.5.3). Furthermore, the proportionality of the increase in the existing noise barrier as a measure to limit noise emissions as well as an additional measuring station, a metering system and dynamic signalling of the maximum permitted speed as a measure to limit air pollutants must be reviewed, including the costs and benefits of the corresponding measures (E. 5.3. and 6.2).

During the ordinary audit, the auditors of a public limited company identified an imminent over-indebtedness and set the public limited company a deadline of 30 days within which it was to notify the auditors of planned reorganisation measures. The public limited company did not inform the auditors of any reorganisation measures within the deadline, nor did it submit any subordinations, whereupon the auditors notified the court of the over-indebtedness. The court opened bankruptcy proceedings against the company limited by shares. The Federal Supreme Court considered that even if loans with subordination were taken into account and despite the lack of an interim balance sheet (as at the end of June 2023), the lower court could assume (obvious) over-indebtedness (E. 6.4.3).

The question in this case was whether war material confiscated under Art. 69 SCC (and destined for destruction) could subsequently be handed over to the convicted person. The Federal Supreme Court ruled that the proportionality of the surrender of the objects was or should have already been the subject of the criminal proceedings (E. 4.7). Accordingly, in the subsequent administrative proceedings, the convicted person can no longer return to aspects that were legally assessed by the public prosecutor's office, but was obliged in good faith to assert his position in the criminal proceedings.

This Federal Supreme Court judgement concerned the case of a 75% self-employed farmer who also worked 25% (8.5 hours per week) as a cook and suffered an accident while working as a farmer. There was compulsory accident insurance for her work as a cook, but no voluntary insurance for her work as a farmer. The accident insurance refused to cover the treatment costs. The lower court considered that this was an occupational accident not covered by accident insurance within the meaning of Art. 7 UVG. The Federal Supreme Court held that the non-occupational accident insurance cover in this case also extends to accidents suffered by a compulsorily UVG-insured part-time employee in their non-voluntarily insured self-employed occupation (E. 7.5).

A walk-in practice with permanently employed and salaried doctors billed Helsana Insurance Company Ltd. for the emergency convenience flat rates F, the emergency convenience flat rates A and B and the percentage surcharge for emergency B (TARMED tariff items 00.2505, 00.2510, 00.2520 and 00.2530). Helsana Insurance Company Ltd then filed a claim for reimbursement of the overcharged flat rates. According to the corresponding interpretations in the TARMED tariff structure version 1.09, the emergency convenience flat rates A and B as well as the percentage surcharge for emergency B (TARMED tariff items 00.2510, 00.2520 and 00.2530) may only be billed by specialists who are not permanently paid by the hospital or institute (E. 4.2). The Federal Supreme Court considered the walk-in practice in the present case to be an institute, according to which its doctors on fixed salaries were not authorised to bill these tariff items (E.4.3.5). Finally, the Federal Supreme Court held that the claim for repayment was neither relatively nor absolutely time-barred (E. 5.4).

Due to the duty enshrined in Art. 40 lit. c MedBG, doctors must safeguard the rights of patients. Orders issued by the cantonal supervisory authority (cf. Art. 41 para. 2 sentence 1 MedBG) may also relate to the legal consequences of a specific exercise of the patient's right to self-determination in the treatment relationship under private law, which flows from Art. 10 para. 2 BV and Art. 8 no. 1 ECHR. Although doctors do not fulfil any state functions in the context of treatment relationships under private law, they are nevertheless bound by law to some extent by fundamental rights (E. 7.2). It is undisputed that any future (disciplinary) legal relationships between the health authority and the treating doctors are subject to federal law. Art. 40 MedBG conclusively regulates the professional duties of persons who practise a university medical profession under their own professional responsibility. The SAMS guidelines declared applicable in Art. 18 of the code of conduct of the FMH (Swiss Medical Association) are binding for all FMH members and also serve as an aid to interpretation in the context of the application of Art. 40 MedBG (E. 8.3). The FMH as such is not the addressee of the professional duties enshrined in Art. 41 MedBG (8.4.3).

In this judgement, the Federal Supreme Court dealt with the usability of evidence and amended its case law. A later granting of the right to participate or a guarantee of confrontation by repeating an (unusable) interrogation does not lead to usability in accordance with Art. 147 para. 4 StPO (E. 1.6.7.4). The facts underlying the judgement were an (illegal) speeding contest between two co-defendants, which was recorded by a third co-defendant on his mobile phone. The conviction of the defendant in the present case was based on the video recording and the assumed consent to the recording based on the statements of the co-defendants, which they made in the absence of the defendant. The Federal Supreme Court ruled that the statements of the co-defendants may not be used to the detriment of the defendant (E. 1.6.8).

At issue in this case were recordings from an automatic vehicle search and traffic monitoring system (AFV), which were not included in the case files but were nevertheless utilised by the lower court. The lower court justified this by stating that the attempted grievous bodily harm was a serious criminal offence within the meaning of Art. 141 para. 2 of the Code of Criminal Procedure and that the public interest in clarifying the attempted grievous bodily harm and qualified hit-and-run was weighted more heavily than the complainant's interest in not having the recordings used. The Federal Supreme Court upheld this view (E. 2.4). The Federal Supreme Court also examined whether the failure to provide emergency assistance created the risk of a result that went beyond the result of the injury accepted in the attempted grievous bodily harm. It came to the conclusion that the intention to cause grievous bodily harm expressed in the attempt also includes the intention to refrain from providing emergency assistance and - unlike the lower court - judged the failure to provide emergency assistance to be a punishable subsequent offence of attempted grievous bodily harm (E. 4.3.3).

In this case, the Federal Supreme Court clarified that taxes must be taken into account when determining the full costs. With regard to the calculation of the return on equity, the Federal Supreme Court rejected the position of the lower court, according to which this should be based on the Ordinance on the Tax Deduction on Equity Financing of Legal Entities (VAEFjP) for the deduction for equity financing, especially since only the security equity is taken into account and the interest rate is not adequate (E. 3.5.1; 3.5.2). In the present case, the assessment authority is to be followed, meaning that the entire equity capital is to be taken into account and interest is to be charged at an equity capital interest rate of 5%. With regard to the cost surcharge of 10% applied by the assessment authority and the Administrative Court, the Federal Supreme Court confirmed that a "(rather) low cost surcharge" was appropriate for a "broad cost basis" and set this at 5% in the present case (E. 3.6.3).

The Federal Supreme Court confirmed its previous practice of revision pursuant to Art. 123 para. 2 lit. a BGG (E. 5.5). According to the case law on the analogous Art. 137 lit. b OG, which continues to apply according to BGE 134 III 45, "new" facts are those that have materialised by the time when factual submissions were still procedurally admissible in the main proceedings, but which were not known to the applicant for revision despite sufficient diligence (non-genuine novelties). The assertion of genuine novelties is excluded in appeal proceedings. The new facts must also be significant, i.e. they must be capable of changing the factual basis of the contested judgement and, if the legal assessment is correct, lead to a different decision. New evidence must either serve to prove the new material facts on which the appeal is based or to prove facts that were known in the previous proceedings but remained unproven to the detriment of the applicant. Evidence is relevant if it can be assumed that it would have led to a different judgement if the court had been aware of it in the main proceedings. The decisive factor is that the evidence does not merely serve to assess the facts of the case but to establish them (E. 4.1).

It was questionable whether an accumulation of helplessness compensation under accident insurance with that of disability insurance, namely with helplessness in the event of the need for practical assistance, is permissible in view of the coordination rule under Art. 66 para. 3 ATSG. It is undisputed that the helplessness compensation of the disability insurance is broader than that of the accident insurance in that it also recognises helplessness in the case of a need for practical assistance (E. 5). In the present case, the Federal Supreme Court found that - regardless of whether the requirements for practical assistance are met - there is no scope for additional compensation if the person is deemed to be helpless to a severe degree (E. 6.2 f). Accordingly, cumulation was not possible in the present case, although the Federal Supreme Court left open the question of what would happen in the case of a helplessness allowance for mild or moderate helplessness (E. 6.4).

Firstly, the Federal Supreme Court examined the prerequisites for entering into the proceedings and initially stated that cost regulations of a rejection decision cannot be contested separately, as they cannot be decided separately from the main issue (E. 1.1.3). In the present case, however, the costs were imposed on the representative of one of the parties, meaning that only the cost regulation established a legal relationship with him (E. 1.1.4). The Federal Supreme Court therefore found that this was an exceptional case of an independently contestable final decision (E. 1.1.5). Furthermore, the Federal Supreme Court found that the right to be heard was violated in that the lower court issued a "surprise decision", which the appellant should not have expected due to the exceptional nature of the cost regulation applied (E. 4.3.1 f.). In addition, there are actual ambiguities regarding the misconduct of which the appellant is accused (E. 4.3.3).

The Federal Supreme Court first stated that legal provisions enacted to enforce significant public interests must be applied, even if they only come into force in the course of appeal proceedings (E. 3.3.2). The first question to be clarified under the new law is whether the road is a traffic-orientated road or not. Depending on the answer to this question, an expert opinion is required to raise or lower the speed limit (E. 5.1). In the present case, however, the Federal Supreme Court was able to leave the question of whether or not the road is a traffic-orientated road open, as the expert opinion was obtained on the basis of the previous legal situation and this satisfied the requirements (E. 5.2 and E. 7.2 et seq.).