Federal court case law 3rd quarter 2025

FINMA ordered the liquidation of A. AG as it had been operating as an issuing house or securities firm together with its anchor shareholders without a licence - an order that was confirmed by the Federal Administrative Court, whereupon A. AG lodged an appeal. The Federal Supreme Court held that a regulatory group existed between the parties involved, which issued securities of third parties on a commercial basis and resold them on the primary market. It emphasised that the authorisation requirement may not be circumvented through formal splitting or so-called "pass-through transactions"; an overall economic assessment is required as soon as close personal and organisational links exist (Art. 5 FINMASA, BGE 136 II 43 E. 4.3.1). The internal share transfers between the anchor shareholders were deemed to be mere preparatory acts without economic significance, and A. AG was deemed to be a third party within the meaning of Art. 3 para. 2 SESTO at the time of the initial issue of its shares, despite its subsequent affiliation to the group - thus there was no self-issue without authorisation. During the proceedings, the spun-off B. AG was included as the legal successor, as it had taken over the assets of A. AG and was directly affected by the liquidation. The court rejected a partial liquidation because the unauthorised activity was central and ongoing, unlawful funds were mixed with permitted income and there was still a considerable risk of renewed violations of the law due to the unchanged management structures.

A. S.A. obtained a seizure order in Zurich against assets of B. Ltd, including in particular accounts at Bank C. AG, based on a Luxembourg judgement. In the subsequent realisation proceedings, it emerged that SECO had already frozen these assets on the basis of the Ukraine Ordinance. Before the Federal Supreme Court, the creditor argued that there was no analogous application of Art. 44 SchKG in this case. The Federal Supreme Court replied, referring to the case law, that Art. 44 SchKG in its current version should also be applied analogously to asset freezes pursuant to an ordinance issued by the Federal Council based on Art. 184 para. 3 BV. The Federal Supreme Court came to the conclusion that ordinances of the Federal Council based on Art. 184 para. 3 BV as well as Art. 2 EmbG are to be treated in the same way as the laws reserved in Art. 44 SchKG. Asset freezes based on these ordinances take precedence over enforcement under the SchKG. Consequently, the Federal Supreme Court dismissed the appeal and ordered the appellant to pay court costs of CHF 3,000.

A. drew up an advance care directive in 2017 and successively appointed her husband and her sons C. and B. as authorised representatives. After the husband's death, the KESB only partially validated the mandate: It appointed C. as the guardian in the area of personal care and also established a proxy guardianship with asset management in accordance with Art. 394 in conjunction with Art. 395 ZGB. Art. 395 ZGB, against which A., B. and C. lodged an appeal. The Federal Supreme Court did not uphold the appeals of A. and B., while C.'s appeal was admissible insofar as he demanded his own appointment for asset management and legal transactions. In this regard, the court clarified that the right of self-determination of the person making the appointment must be taken into account to a large extent and that the suitability of a desired person may only be denied with caution. A possible family conflict is not sufficient to categorise someone as unsuitable. Because the High Court categorised the son C. as unsuitable for the care of assets solely because of a potentially aggravated conflict with his brother B., it violated Art. 363 para. 2 no. 3 ZGB. C.'s appeal was upheld, the decision was annulled and the matter was referred back to the KESB for a new assessment.

The Federal Supreme Court had to decide on the VAT liability of a Dutch online booking platform in Switzerland. It qualified the services as electronic services within the meaning of the VAT Act, as they can be provided via the internet, largely automated and only with the help of IT. As the platform was already providing its services to non-taxable recipients in Switzerland, including private individuals and unregistered companies, before it was registered with the FTA, the counter-exception to tax exemption applies and a retroactive tax liability arises in accordance with Art. 10 of the VAT Act. The Federal Supreme Court confirmed the additional claims including default interest and dismissed the platform's appeal.

The Federal Supreme Court ruled on the appeal of a Polish podiatrist who wanted to have her diploma recognised as equivalent to the Swiss diploma in podiatry HF. It denied a claim to automatic recognition under Directive 2005/36/EC, as the profession is not regulated in Poland and the complainant was unable to demonstrate two years of professional experience in a non-regulated EU country. Although a subsidiary equivalence assessment was to be carried out in accordance with the Agreement on the Free Movement of Persons, it revealed considerable differences between the Polish training (primarily cosmetic podiatry, hardly any clinical practice) and the Swiss HF training, meaning that the lack of knowledge could not be compensated for by professional experience in Switzerland. Compensatory measures would in fact require the applicant to complete the entire HF training programme, which was deemed proportionate. The Federal Supreme Court dismissed the appeal and confirmed the refusal to recognise the HF; the complaint of a violation of the right to be heard (Art. 29 para. 2 BV) was also unsuccessful.

The complainant had been sentenced to a conditional prison sentence of 13 months at first instance for multiple offences against the Road Traffic Act; following an appeal and subsequent appeal, the High Court increased the sentence to 21 months, of which 10 months are to be served unconditionally. The appellant then complained of a violation of the prohibition of aggravation within the meaning of Art. 391 para. 2 of the Code of Criminal Procedure in conjunction with Art. 404 of the Code of Criminal Procedure. Art. 404 of the Code of Criminal Procedure. The Federal Supreme Court clarified that the sentence and conditional execution are inextricably linked and that the aggravation of the sentence was permissible due to the cross-appeal (Art. 391 para. 2 StPO; BGE 144 IV 383). It denied that the court of appeal was bound by the upper sentence limit of the single court of first instance, as Art. 19 para. 2 of the Code of Criminal Procedure only regulates the organisation of the court of first instance and does not restrict the full jurisdiction of the court of appeal (Art. 398 para. 2 of the Code of Criminal Procedure). In view of the significant relevant previous convictions, persistence and lack of insight, the court affirmed an unfavourable legal prognosis for a fully conditional execution and confirmed the partially conditional prison sentence (Art. 42 f. StGB). A violation of the duty to state reasons was denied, the appeal was dismissed and the appellant was ordered to pay court costs of CHF 3,000.

The insured person, who was born in 2012, suffers from amelogenesis imperfecta (congenital dental dysplasia) and repeatedly applied to the Lucerne IV centre for medical measures, which were rejected each time. The Federal Supreme Court clarified that the entitlement to medical measures for the treatment of congenital defects does not only arise once the condition has fully manifested itself, but already when it has been established with a high degree of probability that the criteria will be met. As an insured person born in 2012 with amelogenesis imperfecta was radiologically diagnosed with at least twelve teeth, the court qualified the condition as a congenital defect. It cancelled the negative decision of the Lucerne IV office and sent the case back for reassessment.

The Federal Supreme Court had to decide whether the Oberland/BE debt enforcement office was authorised to seize the assets of a debtor under attachment in Geneva by way of legal assistance after the creditor had enforced the attachment at the debtor's place of residence at the time. It clarified that the 2009/2011 revision of the attachment law created a uniform Swiss-wide enforcement area, which allows several attachments to be enforced with a single enforcement at one place of attachment or at the debtor's place of residence. If the debtor moves his domicile abroad, the debt enforcement can be continued at the place of attachment, limited to the assets attached there (Art. 53 SchKG). Even without the express designation of a lead debt enforcement office, it is permissible for the debt enforcement office where the sequestration is taking place to instruct other debt enforcement offices to seize assets by way of legal assistance. The debtor's appeal was dismissed; the procedure of the Oberland/BE debt enforcement office was in compliance with federal law.

In judgement 5A_375/2025, the Federal Supreme Court deals with the question of the cancellation of the opening of bankruptcy proceedings. A. AG had lodged an appeal against the opening of bankruptcy proceedings by the Cantonal Court of Zug, as it had settled the claim of B. AG, but only paid the court costs after the opening of bankruptcy proceedings. The High Court of the Canton of Zug dismissed the appeal as the full payment of the debt before the opening of bankruptcy proceedings was not proven and the solvency of A. AG could not be credibly demonstrated. The Federal Supreme Court confirms that in order for the opening of bankruptcy proceedings to be cancelled, the ability to pay must be credibly demonstrated if the debt is only settled after the opening of bankruptcy proceedings. A. AG's appeal is dismissed as it was unable to provide sufficient evidence of its solvency.

A. AG, as the best bidder, submitted its offer for timber element construction work for a kindergarten on 28 June 2023 at 21:47. According to the tender platform, 16:00 was the deadline, but the documents only stated the date. The awarding authority excluded A. AG for allegedly submitting the tender late and awarded the contract to a competitor. It concluded the contract on 5 September 2023 - one day after the expiry of the appeal deadline and before the suspensive effect was ordered. The Federal Supreme Court ruled that the conclusion of the contract on the first day after the expiry of the appeal period and before the Administrative Court had the opportunity to order suspensive effect constituted a breach of the standstill rule (Art. 42 para. 1 PPPI) (E. 4.4. et seq.). The premature conclusion of the contract was therefore contrary to public procurement law. The Federal Supreme Court referred the case back to the Administrative Court in order to examine the possible primary legal protection measures (in particular instructions to cancel/amend the contract), taking into account the principle of proportionality (E. 5).

The case concerned a long-standing employee who had agreed a non-competition clause with a two-year duration and compensation in 2008 in his role as country manager. Following his dismissal and leave of absence, the employer attempted to unilaterally cancel the non-competition clause and compensation shortly before the end of the employment relationship. The Federal Supreme Court agreed with the lower court, which considered the geographical limitation of the non-competition clause to Switzerland to be valid (E. 2.5), as there were no indications of activities outside of Switzerland. It also confirmed its practice, according to which a non-competition clause in return for payment is a bilateral contract in which the compensation for the non-competition represents the consideration for the non-competition. A unilateral waiver by the employer with cancellation of the compensation is only permissible if this has been expressly agreed (E. 4.4.4.). As the non-competition clause was valid, could not be unilaterally cancelled and no offsetting of replacement income was provided for, the Federal Supreme Court dismissed the employer's appeal.

The Federal Supreme Court dismissed a second appeal by the People's Republic of China against a decision on jurisdiction by a Geneva arbitration tribunal. China invoked a criminal judgement from 2024 and claimed newly discovered evidence pursuant to Art. 190a para. 1 lit. a IPRG as well as an influence through crimes or misdemeanours. The court rejected the first ground, as the criminal judgement was issued after the contested decision of 2021 and is therefore not admissible (E. 3.3.). The offences and false statements alleged by China were only specified in relation to one of four share transfers, and there was no sufficient causal link to the decision on jurisdiction. In addition, the arbitral tribunal had based its jurisdiction exclusively on the investor's shareholding and expressly stated that the issue of land use rights was not relevant to the decision (E. 5.3). As the legal requirements were not met, the appeal was dismissed.

The Federal Supreme Court dealt with a case in which a man who donated a kidney to his sister in 2006 suffered permanent nerve damage. After the recipient's former health insurer had paid partial compensation until the end of 2014, the donor demanded CHF 940,000.00 in compensation for loss of earnings from the recipient's OKP. The Federal Supreme Court dismissed the appeal with regard to the health insurance claims, as the donor had no direct claim against the recipient's OKP insurer due to a lack of insurance law. With regard to the asserted claim under transplantation law pursuant to Art. 14 para. 2 lit. b Transplantation Act, it overturned the decision of the Thurgau Administrative Court on formal grounds: This claim is part of other federal administrative or healthcare law, which is why the cantonal social insurance court was not competent and should have referred the matter to the Federal Administrative Court.

A real estate fund with direct real estate holdings in the canton of Zurich was subject to limited tax liability there and had recognised extraordinary depreciation on a property in U. (BE) for the years 2014/2015 and 2015/2016. These impairments were correctly recognised in the annual financial statements in accordance with CISA, but were not claimed in the tax returns and were therefore not taken into account in the assessments. From 2016/2017, the fund management company prepared annual financial statements in accordance with the Swiss Code of Obligations for the first time and recognised the property at its original acquisition cost in order to subsequently carry out an "extraordinary depreciation" for the entire loss in value that had occurred since 2014/2015. The Federal Supreme Court held that the first-time conversion to CO accounting does not allow the property to be recognised at acquisition cost if the market value is already lower (E. 3.2). The fund management company's approach led to the double recognition of previous impairments and violated the prudence and lower of cost or market principle of the CO. It is not permissible for tax purposes to make up for depreciation not recognised in previous tax periods; neither the total profit principle nor good faith require an exception here, as the assessments are legally binding (E. 4.2). The appeal of the Canton of Zurich was upheld, the contested decision was cancelled and the original objection decision was restored.