Federal court case law 4th quarter 2023

According to the case law of the Federal Supreme Court, Art. 4 MSchG ("Registration in favour of authorised users") requires a contractual relationship. In the present decision, the Federal Supreme Court pointed out that Art. 4 MSchG is not a contractual claim, but a special ground for exclusion of protection in trade mark law. Consequently, not only the contractual partner authorised to use the trademark is covered by this standard, but also its executive bodies, shareholders, auxiliary persons, affiliated companies in the group or straw men (E. 3.2.2).

According to the case law of the Federal Supreme Court, Art. 4 MSchG ("Registration in favour of authorised users") requires a contractual relationship. In the present decision, the Federal Supreme Court pointed out that Art. 4 MSchG is not a contractual claim, but a special ground for exclusion of protection in trade mark law. Consequently, not only the contractual partner authorised to use the trademark is covered by this standard, but also its executive bodies, shareholders, auxiliary persons, affiliated companies in the group or straw men (E. 3.2.2).

According to the case law of the Federal Supreme Court, Art. 4 MSchG ("Registration in favour of authorised users") requires a contractual relationship. In the present decision, the Federal Supreme Court pointed out that Art. 4 MSchG is not a contractual claim, but a special ground for exclusion of protection in trade mark law. Consequently, not only the contractual partner authorised to use the trademark is covered by this standard, but also its executive bodies, shareholders, auxiliary persons, affiliated companies in the group or straw men (E. 3.2.2).

In this case, the Federal Supreme Court denied the continued payment of wages in accordance with Art. 324 para. 1 CO, as the closure of the company to combat the coronavirus is not part of the employee's operational risk. Whether a circumstance is part of the operational risk must be assessed on a case-by-case basis. The refusal of acceptance is always unjustified if there is no objective reason that affects everyone (E. 5.3). In terms of procedural law, it is interesting to note that the amount in dispute before the Federal Supreme Court only exceeds CHF 15,000 if it is based on the gross amounts. The Federal Supreme Court has deemed this to be sufficient (E. 1.2).

In casu, the question arose as to whether the taxpayer must actually take note of the act interrupting the limitation period in accordance with Art. 120 para. 3 lit. a DBG and whether a valid representation relationship exists. Although both the German version ("zur Kenntnis gebracht wird") and the French version ("en informe") suggest that the taxpayer must actually take note of the official act, the Federal Supreme Court came to the opposite conclusion. According to the Federal Supreme Court, this would not be compatible with the purpose of the interruption of the limitation period, as the taxpayer could thus bring about the limitation period (E. 3.5.4). However, if the official act is not communicated directly to the taxpayer, the actual acknowledgement applies (E. 3.5.5). In principle, there are no provisions regarding representation, which is why the specific circumstances must be taken as a basis (E. 3.7.1). No representation relationship can be inferred from the fact that the fiduciary company submitted the request for extension of the deadline on behalf of the taxpayer. The fact that the tax office itself requires a written authorisation in the assessment procedure (E. 3.7.2) also suggests that there is no representation. The limitation period was therefore not interrupted and the tax claim is time-barred (E. 3.8).

In these proceedings, the Federal Supreme Court upheld the appeal of a foundation. The foundation joined the Pension Widows' and Orphans' Fund of the Basel State Staff (PKBS) as an employer. In 2008, the PKBS reported a significant shortfall for the foundation's pension scheme. In 2016, the foundation refused to fund a shortfall of around CHF 6.3 million as requested by the PKBS, whereby the foundation criticised the lack of a legal basis and emphasised the existential importance of the claim for it. The Federal Supreme Court considered the foundation's justification to be sufficient (E. 4.4.).

In the aforementioned decision, the Federal Supreme Court dealt with the subsequent adjustment of the rent at the end of an LIK-indexed rental agreement due to a change in the mortgage reference interest rate. In the specific case, the contracting parties had concluded a five-year indexed rental agreement with a notice period of three months, at the earliest to the end of the indexation. The lower court lowered the tenants' monthly rent on the grounds that the mortgage reference interest rate was higher than that at the start of the indexation period. The Federal Supreme Court upheld the landlord's appeal against this decision. The Federal Supreme Court's decision was based on the fact that if tenants or landlords demand a rent adjustment at the end of an index-linked rental agreement due to a change in the mortgage reference interest rate, they must do so at the end of the index period while observing the agreed notice period. Otherwise, it can be assumed that they agree (for the time being) with the previous rent in accordance with the development of the CPI (E. 3.5.).

The judges in Lausanne referred the case back to the lower court for a new legal assessment. The Federal Supreme Court held that the lower court had erred by replacing the sale price of a property with the market value without identifying any specific additional consideration received by the seller. It is therefore necessary to examine whether a mixed gift exists and whether a tax deferral should be granted (E. 5.).

This decision of the Federal Supreme Court relates to proceedings before the Federal Arbitration Commission for the Exploitation of Copyrights and Neighbouring Rights (ESchK) concerning the approval of a tariff. The Arbitration Commission had set an award fee of CHF 15,000, which it then imposed on the collecting societies. The Federal Administrative Court partially overturned this decision and ordered the Arbitration Commission to reassign the costs of the approval procedure. The Federal Department of Justice and Police (FDJP) lodged an appeal against this decision with the Federal Supreme Court.

The Federal Supreme Court had to clarify the question of whether the house search constituted an unauthorised search for evidence (a so-called "fishing expedition") or whether the videos were a chance discovery. After analysing the relevant doctrine and case law, the Federal Supreme Court came to the conclusion that in this specific case it was an inadmissible search for evidence in the sense of a "fishing expedition". In view of the already sufficiently documented offence, it considers the house search to be neither suitable nor necessary for the investigation of the offence. The house search could not be justified by other road traffic offences either. The house search and the confiscation of the GoPro camera and SD card were therefore inadmissible. However, based on the balancing of interests pursuant to Article 141 paragraph 2 of the Code of Criminal Procedure, the Federal Supreme Court affirmed the usability of the unlawfully obtained evidence for those offences which, based on the specific facts of the case, constitute serious offences within the meaning of this legal provision.

The subject of the present decision was the question of whether the lower instance was allowed to refuse the request for a detention review pursuant to Art. 80a para. 3 AIG after the complainant allegedly submitted a "waiver of judicial review" (E. 3.). In the present case, the complainant was informed by the Migration Office on 10 August 2023 that he would be taken into Dublin detention. On the last page of the order, he had the option of ticking either "I request a judicial review of the detention" or "I waive the judicial review of the detention" (Art. 105 para. 2 BGG) (E. 4.6.). However, according to the Federal Supreme Court, the second cross can only mean that the appellant waives the exercise of his right for the moment, but not that he permanently waives the right itself. He can return to his decision at any time, exercise his right to judicial review and request this. He has done so after two weeks of detention. Judicial review "at any time" is explicitly provided for under constitutional, convention and statutory law (Art. 80a para. 3 AIG) (E. 4.1.-4.3., 4.8.). The lower court was therefore not allowed to waive the review of the detention and should have accepted the request for a review of the detention (E. 4.9.).

In this decision, the Federal Supreme Court dealt with the question of whether a declaration of set-off can be brought before the Federal Supreme Court for the first time. After a detailed discussion, the Federal Supreme Court rejected this approach (E. 5.5.3): Insofar as the set-off must be declared in order to be effective (Art. 124 para. 1 CO), consideration before the Federal Supreme Court would require that the party has asserted a declaration of set-off before the lower court in accordance with the proceedings. This is not the case if the set-off is only declared before the Federal Supreme Court. A declaration of set-off before the Federal Supreme Court can bring about the set-off itself, but is to be treated in the same way as a payment made after the contested decision has become final. A different result would not only be contrary to the intention of the legislator, it would also not be justifiable in view of the requirement of material exhaustion of the appeal process.

The Federal Supreme Court reviewed the appeal of a doctor who had previously been ordered by the arbitration court in health insurance disputes in the canton of Basel-Landschaft to reimburse fees for several years. Several insurance companies sued the doctor for repeated inefficiency. The doctor appealed against the judgement and requested that the claims be dismissed or that the case be referred back to the lower court for further clarification. After examining the appeal, the Federal Supreme Court ruled that the arbitration court had lawfully applied the ANOVA method to check the profitability of the doctor's practice. The appeal was dismissed.

In the present case, it was necessary to examine the extent of the autonomy of the University of Zurich as a public-law institution of the canton with its own legal personality. Of particular interest was whether the autonomy of the University of Zurich also covers disciplinary measures in the form of monetary payments of up to CHF 4,000.00 (E. 4.2). The Federal Supreme Court considered that general-abstract standards must in principle be issued by the competent body, subject to a valid legal delegation (E. 5.2). The extent to which sanctions require a formal legal basis has not been conclusively clarified. The doctrine is of the opinion that at least severe disciplinary measures require a basis in a formal law (E. 5.4). The Federal Supreme Court supports the view of the lower court that fines of up to CHF 4,000.00 can have drastic economic consequences for students, who generally have an average income. This impending disadvantage is further exacerbated by the fact that the disciplinary ordinance provides for expulsion from studies in the event of non-payment (E. 5.5). Furthermore, the Federal Supreme Court stated that nothing can be deduced from the fact that the cantons of St. Gallen and Fribourg also have such sanctions. The aforementioned cantons have regulated this at a formal legal level, which is an indication that it is a serious disciplinary measure (E. 5.5). Moreover, the way in which the sanction is handled in practice is not a question of legal basis, but of proportionality, which is why the University of Zurich cannot derive anything from this either (E. 5.5).

A social welfare recipient from the canton of Neuchâtel had his social welfare cancelled informally due to a lack of cooperation in clarifying his financial circumstances. Specifically, he did not submit any documents relating to his pregnant cohabiting partner. As a result, the family's overall need for support could not be clarified.