Federal court case law 4th quarter 2024

Although the obligation to sign and transmit submissions to the authorities electronically interferes with the free choice of business resources, it generally only has a minor impact on the activities of professional party representatives. This is particularly the case as signing and sending submissions is not the core task of professional party representatives (E. 4.3.3). The obligation for electronic communication between authorities and parties is justified by the public interest in simplifying and accelerating administrative and court proceedings (E. 5.7 et seq.). The Zurich "digital only" obligation is suitable (E. 6.3), necessary (E. 6.4) and proportionate in the narrow sense (E. 6.5) in order to achieve the objective in the public interest. In addition, the obligation is compatible with the BGFA and the obligation provided for in the VRG/ZH does not violate the principle of the primacy of federal law (E. 8.5).

Due to the unity of the debt certificate claim and the lien, only the debt certificate claim can be legally opened. The amount of this is determined by the basic claim, provided the debtor raises the defence of "pactum de non petendo" (E. 6.4.2). A private-law debt certificate claim does not take on a public-law character simply because it secures a public-law basic claim. The debt certificate claim remains of a private-law nature and is only accessible to provisional legal opening (E. 6.4.4).

A non-intended use of the loan - despite the assurance in the Covid-19 loan application form - does not constitute a false certification within the meaning of Art. 251 para. 1 SCC (E. 1.9.5). The same applies to the borrower's assurance that he is "economically significantly impaired" due to the Covid-19 pandemic (E. 1.9.6). Although the Covid-19 loan application form is a document within the meaning of Art. 110 para. 4 SCC, as the declarations made are of legal significance, there is no increased credibility with regard to the accuracy of the content (E. 1.9.1; 1.9.7). A deception relevant under fraud law can only be assumed if the statement was clearly false and the company requesting the Covid-19 loan was obviously not economically affected by the Covid-19 pandemic (E. 1.10.1). Although the short-term investment of funds in shares does not correspond to the purpose of the Covid-19 loan, it does not constitute fraudulent misrepresentation within the meaning of Art. 146 para. 1 SCC (E. 1.10.5).

The Federal Supreme Court initially confirmed the Federal Council's competence to redefine the relevant operating condition for adaptive antennas (E. 5.4; Art. 38 para. 3 USG). The special signal characteristics of adaptive antennas justify a differentiated approach compared to conventional antennas (E. 6.1.3 f.). The application of the correction factor within the meaning of para. 63 paras. 2 and 3 Annex NISV takes account of the precautionary principle (E. 6.4). The Federal Supreme Court confirmed that the existing QA system is also capable of verifying the operation of adaptive antennas that are used in compliance with the licence, taking into account the correction factor (E. 7.5).

The Federal Supreme Court held that the required interest worthy of protection pursuant to Art. 48 para. 1 lit. c VwVG is not to be equated with the right to be granted consular protection, since a mere interest actually worthy of protection is sufficient for the affirmation of party status (E. 3.7 f).

Insofar as the reason for cancellation of pension under Art. 24 para. 2 AHVG is not (or no longer) applicable to widowers, it cannot play a role for a divorced man who is treated as a widower. Contrary directives issued by the FSIO are unlawful and must therefore be disregarded (E. 4.4).

Vested benefit assets are not to be taken into account for the asset threshold pursuant to Art. 5 para. 1 lit. c ÜLG in conjunction with Art. 9a ELG. Art. 9a ELG as long as it is still held in a vested benefits institution. On the other hand, a vested benefit paid out constitutes eligible assets (E. 4.3). After interpreting the standard in question, the Federal Supreme Court came to the conclusion that, in the sense of a non-genuine retroactive effect, assets that the person concerned waived before the ELG came into force on 1 July 2021 must also be taken into account (E. 6.6).

The Federal Supreme Court has confirmed the formula of "certain restraint" in the review of discretionary assessments that has been advocated by the Federal Administrative Court for decades (E. 3.3.1 et seq.). This has no explicit legal basis either in substantive law or in procedural law (E. 3.4.2 et seq.). However, the self-restriction is based on a practical necessity and is not objectionable from a legal point of view as long as it does not degenerate into a mere arbitrary review (E. 3.4.5).

The question arose as to whether a tear in the posterior wall of the uterus should be qualified as a muscle tear within the meaning of Art. 6 para. 2 lit. d UVG (E. 6). The legislator of the law and ordinance primarily understood muscle tears to be injuries to skeletal muscles that occur primarily during sport. Moreover, it is unlikely that injuries to the muscle wall of a hollow organ that occur, for example, in the course of a difficult birth during a medical procedure, should be equated with accidents. In addition, the term muscle injuries covers in particular skeletal muscle injuries and should not be extended to muscles of hollow organs (E. 7.2.2). Accordingly, tears in the muscle tissue of hollow organs are not covered by Art. 6 para. 2 lit. d UVG (E. 7.2.4).

A change in the legal situation, which excludes the invocation of the protection of legitimate expectations, results at most from a change in the law or possibly from the fact that its content has since proved to be inadequate as a result of supreme court rulings. If the FTA wishes to have the effect that a practice determination published by it should no longer apply, it must revoke it vis-à-vis the taxable person. The fact that the Federal Supreme Court found the FTA's 25/75 per cent rule to be unlawful did not affect the basis of trust created by the information provided by the FTA, according to which the scope of entrepreneurial activity was set at 40% (E. 5.3.4.2).

The Bünisbachtobel offers particularly favourable breeding conditions for recreationists due to its structural richness and lack of access and is to be regarded as a site worthy of protection within the meaning of Art. 18 para. 1bis NCHA (E. 5.2). Access to the ravine with the planned footpath and hiking trail would represent a not insignificant encroachment on the habitat worthy of protection due to its disruptive effect (E. 6.4 f.). The Bünisbachtobel is the only ravine in the region that is not accessible by a footpath or hiking trail and represents a valuable refuge for birds and wildlife in an area intensively used by humans. This interest is to be weighted higher than that of making yet another ravine accessible to recreationists (E. 7.3).

Art. 45 lit. a-e CAO specifies the relevant criteria that must be used to assess whether special circumstances exist in individual cases that may lead to additional capital being required (E. 4.4.1.1; E. 3.1.2). The "risks incurred" referred to in Art. 45 lit. b CAO are, on the one hand, the circumstances that prompt FINMA to examine whether additional capital is required and, on the other hand, they also form the assessment standard against which the examination of the necessity of additional capital is to be carried out (E. 4.4.1.2). PostFinance has higher interest rate risks not only in comparison to other retail banks, but also in the context of the institution-specific case-by-case analysis (E. 4.5.3.4).

In the judgement BGE 123 III 306, the Federal Supreme Court expressly left open the question of whether the right to invoke the quota prerogative must also be observed in the case of self-inflicted damage (E. 2.4). In the present judgement, the Federal Supreme Court confirmed that injured parties can also invoke the quota prerogative in cases of self-inflicted damage (E. 2.7.2 ff).

The Federal Supreme Court had to answer the question of whether the municipality had made a maintenance payment in accordance with Art. 276 para. 2 ZGB or whether the payment was a contribution under public law (E. 5.1). According to the Federal Supreme Court, there is a violation of federal law if it is assumed that federal law (Art. 276 para. 2 ZGB) takes precedence over cantonal public law (E. 5.2.1; E. 7.2). Accordingly, the standards on the payment of contributions under public law do not only apply if neither the parents nor the child within the meaning of Art. 293 ZGB are in a position to cover the costs of maintenance (E. 5.2.2).

The Federal Supreme Court held that the scope of a building restriction must be determined on the basis of the general linguistic usage or any special local linguistic usage at the time of registration of the easement (E. 5.4). The definition of the term "storey" must be based on the visual impression of the intended building. Alternatively, the local building regulations in force at the time of construction can also be used as a basis for questions of demarcation (E. 5.3; 5.4; judgement of the Federal Supreme Court 5C.240/2004).

If no purpose can be inferred from the wording of an easement agreement, the original purpose must be derived from the needs at the time. This is inevitably associated with certain presumptions (E. 4.1). The needs of the authorised property that justify the purpose exist independently of the specific use of the building on it. This does not change the identity of an easement (E. 4.7). The fact that the servient property was originally used for agricultural purposes and is now located in the building zone does not in itself justify the application of Art. 736 para. 2 ZGB (E. 5.5).

Pursuant to Art. 276 ZPO, the court of appeal before which the divorce proceedings are pending is responsible for deciding on precautionary measures within the meaning of Art. 276 ZPO requested in the appeal proceedings. This also includes jurisdiction to decide on an application for an advance on legal costs for the appeal proceedings (E. 6.2.1 et seq.).

The onset of AHV retirement age does not necessarily mean that a person is no longer integrated into the world of work; there is no justification for refusing to grant semi-retired persons a blanket exemption under Art. 77b SCC (E. 2.2.5). The question of whether a self-employed activity qualifies as work within the meaning of Art. 77b para. 1 lit. b SCC or as a mere hobby can be based on tax and social security case law (E. 2.2.4; 2.4.1).

The Federal Supreme Court confirmed its case law according to which it is precisely the closing of gaps in schooling that does not fall under the concept of vocational counselling under Art. 15 IVG (E. 8.2). The tariff-based provisions of the disability insurance apply to the costs of the stay within the scope of Art. 15 IVG (E. 8.3.2; Art. 27 IVG in conjunction with Art. 41 para. 1 lit. l IVV). It is not compatible with federal law to give IVSE tariffs blanket priority over collective agreements of the disability insurance or agreement of a price in individual cases (E. 8.3.2).

The costs of realising pledged assets are not to be covered by the bankruptcy estate, but are to be borne by the pledgees. The corresponding costs are therefore not to be taken into account when determining the amount of the security deposit pursuant to Art. 230 para. 2 SchKG (E. 5.2).

Expulsion under criminal law has far-reaching consequences for private and family life, which is protected by Art. 8 ECHR and Art. 13 BV. The different scope of the deportation must be taken into account in particular if the family contacts can only be maintained in Switzerland due to special circumstances (E. 5.6.2). The complainant's contact with his severely disabled adult son falls within the scope of protection of Art. 8 ECHR and Art. 13 BV. The Federal Supreme Court affirmed the existence of a case of personal hardship within the meaning of Art. 66a para. 2 SCC (E. 5.7.1). Art. 84 para. 6 SCC stipulates an entitlement to leave to a "reasonable extent". A case of hardship cannot be denied on the grounds that contact would be interrupted for a longer period of time anyway by serving the custodial sentence (E. 5.7.3).

In the present case, the complainant claimed that he did not fulfil the requirements of simple risk of repetition pursuant to Art. 221 para. 1 lit. c of the Code of Criminal Procedure (E. 2.1). The interpretation of Art. 221 para. 1 lit. c of the Code of Criminal Procedure shows that the accused can only be imprisoned for simple risk of repetition if he has already been convicted of at least two similar offences. The case law established in BGE 137 IV 84 E. 3.2 cannot be continued under the new law (E.2.11). The special ground for detention of simple risk of repetition is not fulfilled with a previous offence (E. 2.12).

The Federal Supreme Court had to clarify the consequences of a forfeiture under Art. 10 para. 1 aBüG on Swiss citizenship acquired through marriage (E. 4.1). The Federal Supreme Court held that it could not be objectively justified if the Swiss-born person lost Swiss citizenship due to a lack of registration or declaration of retention, while the foreign-born person would retain it (E. 4.4.5). This applies all the more as children are also included in the forfeiture of their parents' Swiss citizenship pursuant to Art. 10 para. 2 aBüG (E. 4.4.6).

In the present case, the operation of a hotel with several rooms could not be considered subordinate to the non-profit operation of a hostel. This was particularly the case because the revenue from the hotel operation accounted for around half of the hostel's total revenue. Such a gainful activity goes beyond the scope of a tax exemption (E. 8.2). The decisive factor for the question of competitive neutrality is the extent to which the services offered on the market as part of the entrepreneurial activity compete with those offered by persons liable to pay tax on them (E. 8.3.1). For the assessment of competitive neutrality, it is not decisive how the profit is used, but how it is generated, in that it must not have been generated with the help of partially competition-distorting advantages (such as a tax exemption) (E. 8.3.2).

Contrary to the provisions of § 44 para. 1 lit. e VRG/ZH, orders issued by the Transport Council regarding the organisation of the basic service and the determination of other transport services are not of a predominantly political nature (E. 1.1.3). Rather, judicial review must ensure that consultation and participation rights are adequately safeguarded and that overriding questions of principle can be clarified (E. 1.1.5). The exclusion of judicial review pursuant to § 44 para. 1 lit. e VRG/ZH does not comply with the federal law requirement of Art. 86 para. 3 BGG (E. 1.2).

Contrary to the provisions of § 44 para. 1 lit. e VRG/ZH, orders issued by the Transport Council regarding the organisation of the basic service and the determination of other transport services are not of a predominantly political nature (E. 1.1.3). Rather, judicial review must ensure that consultation and participation rights are adequately safeguarded and that overriding questions of principle can be clarified (E. 1.1.5). The exclusion of judicial review pursuant to § 44 para. 1 lit. e VRG/ZH does not comply with the federal law requirement of Art. 86 para. 3 BGG (E. 1.2).

According to case law, obesity has so far not resulted in disability entitling to pension benefits (E. 5.1). The Federal Supreme Court changed its case law in the present decision: Accordingly, it is not understandable and does not stand up to the principle of equal treatment why obesity should be irrelevant from the outset under disability insurance law and thus treated differently from other (also somatic) illnesses if treatment is reasonable in principle (E. 5.9). The principle of the duty to minimise damage (Art. 7 IVG; E. 5.10) continues to apply.

The Federal Supreme Court confirmed the right to compensation of a directly affected person in accordance with Art. 6 para. 2 VG, as the complainant had to endure several hours of fear for the life and health of his wife and unborn child. The fact that retrospectively there was no immediate danger to the wife's life does not alter this fact. Moreover, the inactivity of the border guards put him in a particularly powerless situation, especially since the vulnerable family was in the care of the state (E. 5.6). The Federal Supreme Court denied the claims for damages in connection with the asylum procedure in Italy (E. 6.3.1). There was no unlawfulness, as neither the Compulsory Application Act nor the Dublin III Regulation contain a behavioural norm that serves to protect property interests (E. 6.3.4 f.).

The OKP covers the costs of benefits that serve to diagnose or treat an illness and its consequences (Art. 25 para. 1 KVG) and if these are effective, appropriate and economical (Art. 32 para. 1 KVG; E. 3.1). According to Art. 43 para. 1 ATSG, the insurance provider is responsible for carrying out the necessary clarifications ex officio. To this end, it obtains the information required to examine the application for benefits (E. 3.5). The Federal Supreme Court confirms the lower court to the effect that the previous uncoordinated utilisation of medical services by the appellant constitutes an ineffective and inappropriate treatment method; this requires a treatment plan by a leading medical institution as gatekeeper. This approach is compatible with the principle of free choice of doctor and the system of compulsory benefits (E. 5.1).

Unfair behaviour is committed by anyone who, with their advertising presence, transfers the good reputation of goods known under another sign to their own by creating associations with these goods without any likelihood of confusion. In this respect, it is not necessary to use a sign that is so similar to that of the competitor that it could be confused with it in an exclusive position. Rather, it is sufficient if a sign that is similar to the well-known third-party sign is used in such a way that it cannot be interpreted in any other way than as a reference to that sign, and this is objectively likely to create a mental association with the third-party sign or the products designated by it in the mind of the addressee (E. 4.1). Furthermore, the Federal Supreme Court argues that a comparative reference necessarily presupposes that the elements on which the competing design is based are not merely descriptive elements (E. 4.3). Purely descriptive elements are not capable of giving the comparable product an image that the infringer could transfer to its product (E. 4.4.2). Furthermore, if a third party registers the trademark of a better entitled party without being in a contractual relationship with the latter that authorises him to use the trademark, Art. 4 MSchG must be excluded due to a lack of authorisation to use the trademark (E. 10.5).

Unfair behaviour is committed by anyone who, with their advertising presence, transfers the good reputation of goods known under another sign to their own by creating associations with these goods without any likelihood of confusion. In this respect, it is not necessary to use a sign that is so similar to that of the competitor that it could be confused with it in an exclusive position. Rather, it is sufficient if a sign that is similar to the well-known third-party sign is used in such a way that it cannot be interpreted in any other way than as a reference to that sign, and this is objectively likely to create a mental association with the third-party sign or the products designated by it in the mind of the addressee (E. 4.1). Furthermore, the Federal Supreme Court argues that a comparative reference necessarily presupposes that the elements on which the competing design is based are not merely descriptive elements (E. 4.3). Purely descriptive elements are not capable of giving the comparable product an image that the infringer could transfer to its product (E. 4.4.2). Furthermore, if a third party registers the trademark of a better entitled party without being in a contractual relationship with the latter that authorises him to use the trademark, Art. 4 MSchG must be excluded due to a lack of authorisation to use the trademark (E. 10.5).

In principle, pharmacists may only dispense prescription-only medicinal products on a doctor's prescription (Art. 24 para. 1 lit. a TPA). However, the revision of the Therapeutic Products Act introduced easier dispensing by pharmacists (E. 5.4.3). Non-prescription medicines may also be dispensed by federally qualified druggists (Art. 25 para. 1 lit. b TPA; E. 5.5.2.) Emergency contraception requires a systematic specialist discussion during which any medical problems and drug interactions are identified and the suitability of a particular emergency contraceptive for the respective customer is clarified (E. 6.1). In future, the morning-after pill may only be dispensed in pharmacies after a consultation with the pharmacist. The purpose of the expert discussion, to clarify the risks and suitability for the individual user in an individualised and expert manner and to inform them about drug interactions and undesirable effects, can only be achieved through a discussion with a pharmacist (E. 7.7).

Taking into account the principle of trust and the rule of ambiguity and unusualness, the relevant time for determining the retirement assets is (early) retirement (E. 6.1, 6.5). The fact that this took place during pending divorce proceedings does not change this. This means that the amount of the retirement assets at the time of early retirement is relevant (E. 7.1).

Pursuant to Art. 73 para. 2 subpara. 2 BVG, the occupational benefits court establishes the facts of the case ex officio. The above-mentioned duty of the Occupational Pension Court to determine the facts of the case ex officio does not release the pension funds from the obligation to clarify the benefit claims submitted to them at their own expense (E. 6.3.). The costs of corresponding expert investigations by the occupational benefits court must therefore be borne by a pension fund if its investigations prove to be incomplete or inadequate and a court expert opinion is able to remedy the recognised deficiencies (E. 6.3.2).

The Federal Supreme Court confirmed its case law (BGE 139 V 250), according to which it did not define a general allowance for gainful employment while receiving maternity compensation (E. 4.3). In this judgement, the Federal Supreme Court did not establish a general "allowance" for gainful employment while receiving maternity compensation. It defined what is to be understood as marginal secondary employment (E. 4.3.2). For the entitlement to maternity compensation, it is irrelevant whether the earned income was less than CHF 2,300 during the phase in which there was a basic entitlement to maternity compensation (E. 4.4).

Art. 2 para. 5 lit. a in conjunction with. Art. 8 para. 2 BehiG must be interpreted to mean that the community is also obliged to actively work towards equal opportunities with regard to participation in education. Under certain conditions, this can result in a legal entitlement to the appointment and payment of an assistant (E. 4.5). Method-specific competences include the ability to gather information and data in order to understand problems, as well as the general competence to deal with information (E. 5.4.2). As the appellant is indisputably capable of studying, he is in principle able to carry out administrative work himself as part of his studies. It is an essential competence of university graduates to find their way within a given study programme, which is why the claim for the appointment and payment of an assistant was denied (E. 5.4.4).

The Federal Supreme Court confirmed its case law, according to which the narrower, legal understanding of the right of use must be assumed (judgement 2C_880/2019; E. 7.5). Accordingly, only a contractual or statutory obligation to pass on income can call into question the recipient's right to use income subject to withholding tax (E. 8). The second dependency remains essential for the right of use: payment obligations of the recipient can only constitute an obligation to pass on income subject to withholding tax that is detrimental to the right of use if the payment or at least its amount depends on the recipient earning the income subject to withholding tax (E. 9.4.2).

The Federal Supreme Court cancelled § 4 quinquies PolG/LU in its entirety, as the focus of the use of the AFV is on criminal prosecution, whereby this requires a basis in the StPO (E. 3.5). Even if the purpose of criminal prosecution were to be deleted from Section 4 quinquies PolG/LU, very extensive data collection, analysis and storage would remain - which, among other things, enables "profiling" (E. 3.6.2) - and would appear disproportionate overall (E. 3.6 ff.). Biometric remote identification systems are categorised as "high-risk". This requires an explicit basis in the formal law (E. 4.5.4). § Section 4 sexies PolG/LU does not contain any explicit provisions on the requirements for the use of automated facial recognition technology, which is why this cannot constitute a legal basis for a serious encroachment on fundamental rights due to a lack of sufficient certainty (E. 4.5.5). On the other hand, the standard can be interpreted in accordance with the constitution and convention, whereby "simple" analysis systems, i.e. systems in which the data is entered manually by trained persons, can be used (E. 4.6 et seq.).

Due to the initial situation that the criminal authorities lack the actual possibility to intervene in the procurement of private evidence, a purely abstract standard of judgement must be applied to the hypothesis that illegal private evidence can be lawfully obtained by the state (E. 2.6.2.2 f.). Accordingly, it must always be examined whether the private evidence could have been obtained in the case to be assessed on the basis of the abstract legal situation (E. 2.6.2.4). It is not decisive whether there was a suspicion of an offence at the time the evidence was obtained (E. 2.6.3). The Federal Supreme Court thus confirms its case law regarding the usability of private evidence in criminal proceedings.

Due to the initial situation that the criminal authorities lack the actual possibility to intervene in the procurement of private evidence, a purely abstract standard of judgement must be applied to the hypothesis that illegal private evidence can be lawfully obtained by the state (E. 2.6.2.2 f.). Accordingly, it must always be examined whether the private evidence could have been obtained in the case to be assessed on the basis of the abstract legal situation (E. 2.6.2.4). It is not decisive whether there was a suspicion of an offence at the time the evidence was obtained (E. 2.6.3). The Federal Supreme Court thus confirms its case law regarding the usability of private evidence in criminal proceedings.

With regard to flexible retirement or early retirement, there was genuine competition between CLAs in terms of geographical, temporal, personal, operational and factual aspects. It had to be examined whether the generally binding provisions of the CLA VRM Painters - Plasterers could be considered to take precedence over those of the CLA FAR (E. 4.2). The conflict-of-law rules validly agreed by the social partners in the event of competition between two CLAs must also be taken into account if the competing CLAs are in principle equally applicable in the context of a declaration of general applicability. In such a constellation, there is no room for a resolution of the competition between the CLAs in accordance with the special rules.

If a previous residence permit has been revoked or not extended, a new permit can be applied for at any time. (E.3.1) The decisive factor is whether the circumstances have changed since the revocation or non-renewal in such a way that a claim to authorisation now exists (E 3.2). In the present case, a return of the complainant to Palestine appears to be highly problematic, as the political situation in the Middle East has changed notoriously since the Hamas terror of 7 October 2023 and Israel's military intervention in the Gaza Strip to such an extent that it would have been all the more necessary to clarify whether the Israeli authorities would allow the complainant (back) into the country at all (E. 4.3.3). Before weighing up the interests and irrespective of the problem of the possible existence of circumstances preventing the execution of the removal order, the migration authorities must investigate whether the person (still) has a right to reside in the country of departure, which the lower court failed to do in the present case (E. 4.3.5).

In the present case, it was disputed whether the lower court violated federal law by awarding the respondent an integrity compensation for a 100% loss of integrity instead of the 80% set by the appellant. The assessment is disputed when several losses of integrity coincide (E. 2). Loss of integrity must be determined individually for each loss. If one or more insured events lead to different losses of integrity, the percentages corresponding to the individual losses must be added together, provided that the impairments are medically clearly established and their effects can be clearly distinguished from one another (E. 3). The present loss of both legs above the knee is an allocation to the most severe injuries regulated in Annex 3 to the UVV (E. 5.2).

An appeal was lodged against the 50 to 60 % classification and classification in salary class 25 performance level 5 of a district judge. The Federal Supreme Court argues that insofar as the courts act within the framework of the administration of justice, they generally pursue their own (judicial) administrative interests and decide in these matters functionally as an administrative authority in their own right, which is why they do not have the necessary judicial independence in this respect within the meaning of Art. 30 para. 1 BV (E. 2.1.2.). In the present case, there is no possibility of referral to an independent judicial instance within the meaning of Art. 29a and Art. 30 para. 1 BV. Because the lower instance does not constitute such an instance according to the above, the requirement for a judgement on the merits of Art. 86 para. 1 lit. d in conjunction with Art. 86 para. 2 BGG is not met (E. 2.4).

The "definition of a care home" (Art. 9 para. 5 lit. h ELG) adopted by the Federal Council as part of its delegated legislative powers is in line with federal law and extends to the entire ELG. The restriction of the definition of a home under EL law in Art. 25a para. 1 ELV to facilities that are either recognised as a home by a canton or have a cantonal operating licence applies in principle wherever the ELG refers to a home (E. 5.1). It was then disputed whether the rent to be taken into account in the EL calculation should be determined according to the circumstances of a single-person household (within the meaning of Art. 10 para. 1 lit. b no. 1 ELG) or a single person in a shared flat in accordance with Art. 10 para. 1 ter ELG. The Federal Supreme Court ruled that in the case of a shared flat, a single-person household cannot be assumed or "living alone" within the meaning of Art. 10 para. 1 lit. b subpara. 1 ELG (6.2.4).

A hearing before a juvenile court or appeal court may exceptionally be public, namely if it is deemed necessary due to the public interest (Art. 14 para. 2 lit. a JStPO). The latter is the case, for example, if the juvenile's offence has attracted a great deal of public attention and has strongly moved the public. Depending on the interests involved, a partial publicity may also be permitted, limited for example to accredited media representatives or to a group of persons proposed by the juvenile accused (E. 2.3.1). The lower court did not violate federal law when it granted accredited court reporters partial access to the appeal hearing. It was justifiable for the lower court to (also) assume a public interest for the appeal proceedings, which in principle requires a (media-) public main hearing within the meaning of Art. 14 para. 2 lit. a JStPO, since the present case concerned violent and sexual offences to the detriment of the injured parties, who were 12 to 14 years old at the time of the offences (E. 2.4).

If a hearing within the meaning of Art. 342 para. 1 of the Code of Criminal Procedure is divided into two, the second phase of the proceedings is deemed to be the second part of the main hearing (E. 3.4). A change in the panel is permitted within narrow limits, but the hearing, deliberation and vote should be conducted with the same legal composition. It is also not possible to deviate from the composition during the main hearing for compelling or other objective reasons (E. 3.5). The obligation to actively raise a formal objection to the announced change in the composition of the court contradicts the statutory possibility of waiver pursuant to Art. 335 para. 2 of the Code of Criminal Procedure (E. 3.7).

If a hearing within the meaning of Art. 342 para. 1 of the Code of Criminal Procedure is divided into two, the second phase of the proceedings is deemed to be the second part of the main hearing (E. 3.4). A change in the panel is permitted within narrow limits, but the hearing, deliberation and vote should be conducted with the same legal composition. It is also not possible to deviate from the composition during the main hearing for compelling or other objective reasons (E. 3.5). The obligation to actively raise a formal objection to the announced change in the composition of the court contradicts the statutory possibility of waiver pursuant to Art. 335 para. 2 of the Code of Criminal Procedure (E. 3.7).

The Federal Supreme Court had to answer the question of whether the operator of a hospital that offers outpatient diagnostic imaging and charges for it under compulsory health insurance may be obliged to hand over medical documents to the representative of the plaintiff health insurers as part of the efficiency control (E. 2.1). Tarifsuisse AG is delegated the performance audit on the basis of Art. 6 para. 1 KVAG, whereby it is authorised to receive relevant information in the same way as a health insurer. The duty of confidentiality pursuant to Art. 33 ATSG does not apply to it (E. 4.1.3 f.). In this specific case, it is only a matter of the medical categorisation of anonymous data, which is why it does not necessarily have to be a trust medical service pursuant to Art. 57 para. 1 KVG (E. 4.2.4). A request for disclosure (in casu: disclosure of 55 invoices) is only in line with the duty to provide information in connection with the performance audit if it can also be utilised in such proceedings (E. 5.8). The obligation to hand over the relevant documents is in accordance with the law and proportionate in order to discuss the expediency and cost-effectiveness of the documented CT scans by way of example (E. 5.7.7).

If a demonstration aimed at drawing attention to criticism of the WEF is moved from a busy street to a less crowded street or route, the appeal function is impaired and the freedom of expression and assembly is infringed (E. 4.3). The potential misbehaviour of individual rally participants in the past must not lead to the freedom of expression and assembly of peaceful demonstrators who comply with official orders being preventively restricted (E. 7.3.5). If the interests of public or private traffic were generally opposed to increased public use, the performance element of freedom of expression and assembly would be undermined, as demonstrations in areas with a high volume of public and traffic could hardly ever be authorised (E. 7.3.8). Authorisation procedures for demonstrations in public spaces must be completed before the planned date (E. 10.4.1). In view of the imminent date of the demonstration, the courts of first instance would have been obliged to bring the proceedings to a swift conclusion, which would have made it easier for the complainant to organise and would have improved his legal protection options (E. 10.4.2).

If a demonstration aimed at drawing attention to criticism of the WEF is moved from a busy street to a less crowded street or route, the appeal function is impaired and the freedom of expression and assembly is infringed (E. 4.3). The potential misbehaviour of individual rally participants in the past must not lead to the freedom of expression and assembly of peaceful demonstrators who comply with official orders being preventively restricted (E. 7.3.5). If the interests of public or private traffic were generally opposed to increased public use, the performance element of freedom of expression and assembly would be undermined, as demonstrations in areas with a high volume of public and traffic could hardly ever be authorised (E. 7.3.8). Authorisation procedures for demonstrations in public spaces must be completed before the planned date (E. 10.4.1). In view of the imminent date of the demonstration, the courts of first instance would have been obliged to bring the proceedings to a swift conclusion, which would have made it easier for the complainant to organise and would have improved his legal protection options (E. 10.4.2).

If a demonstration aimed at drawing attention to criticism of the WEF is moved from a busy street to a less crowded street or route, the appeal function is impaired and the freedom of expression and assembly is infringed (E. 4.3). The potential misbehaviour of individual rally participants in the past must not lead to the freedom of expression and assembly of peaceful demonstrators who comply with official orders being preventively restricted (E. 7.3.5). If the interests of public or private traffic were generally opposed to increased public use, the performance element of freedom of expression and assembly would be undermined, as demonstrations in areas with a high volume of public and traffic could hardly ever be authorised (E. 7.3.8). Authorisation procedures for demonstrations in public spaces must be completed before the planned date (E. 10.4.1). In view of the imminent date of the demonstration, the courts of first instance would have been obliged to bring the proceedings to a swift conclusion, which would have made it easier for the complainant to organise and would have improved his legal protection options (E. 10.4.2).

If a demonstration aimed at drawing attention to criticism of the WEF is moved from a busy street to a less crowded street or route, the appeal function is impaired and the freedom of expression and assembly is infringed (E. 4.3). The potential misbehaviour of individual rally participants in the past must not lead to the freedom of expression and assembly of peaceful demonstrators who comply with official orders being preventively restricted (E. 7.3.5). If the interests of public or private traffic were generally opposed to increased public use, the performance element of freedom of expression and assembly would be undermined, as demonstrations in areas with a high volume of public and traffic could hardly ever be authorised (E. 7.3.8). Authorisation procedures for demonstrations in public spaces must be completed before the planned date (E. 10.4.1). In view of the imminent date of the demonstration, the courts of first instance would have been obliged to bring the proceedings to a swift conclusion, which would have made it easier for the complainant to organise and would have improved his legal protection options (E. 10.4.2).

Under the revised unsealing law, only the grounds for the protection of secrets set out in Art. 264 of the Code of Criminal Procedure come into question (E. 2.4.1). The secrecy interests not mentioned in Art. 264 of the Code of Criminal Procedure are not to be raised in the unsealing proceedings. Rather, the director of proceedings must - at the request of the parties concerned - examine whether a restriction of the parties' right to inspect the files could prove necessary to protect such private confidentiality interests (E. 2.4.3). If no evidence subject to the search has been collected or no statutory grounds for the protection of secrets are invoked by the parties concerned, the general legality of coercive measures in accordance with Art. 197 of the Code of Criminal Procedure is not to be examined in the context of the unsealing procedure (E. 4.3 f.).

Generally deductible expenses of the spouse with unlimited tax liability in Switzerland may not be disallowed as a deduction due to the income of the other spouse resident abroad (E. 6.2 et seq.). This would result in a factor addition at the level of the assessment basis, for which there is no legal basis if the spouses are resident in different countries (E. 6.4). The same applies to cantonal taxes (E. 8).

Generally deductible expenses of the spouse with unlimited tax liability in Switzerland may not be disallowed as a deduction due to the income of the other spouse resident abroad (E. 6.2 et seq.). This would result in a factor addition at the level of the assessment basis, for which there is no legal basis if the spouses are resident in different countries (E. 6.4). The same applies to cantonal taxes (E. 8).

In the present case, the Federal Supreme Court came to the conclusion after interpreting the standard that brokerage services in connection with the issue of (new) shares fall under Art. 21 para. 2 no. 19 lit. e of the VAT Act and are therefore exempt from VAT (E. 4.8). This is also justified insofar as the interpretation of EU law is in favour of this (E. 4.5.3) and the underlying transaction in the sense of the securities transaction is not taxed as a non-remuneration and there is no justification for treating the brokerage service differently for tax purposes (E. 4.7).

The maternity allowance pursuant to Art. 16g para. 1 lit. f EOG excludes the receipt of the care allowance pursuant to Art. 16n-16s EOG for the same child. The Federal Supreme Court held that the payment of maternity compensation excludes the receipt of daily allowances by both parents (E. 5.1). The priority rule of Art. 16g para. 1 lit. f EOG also applies to the entitlement to care leave pursuant to Art. 329i para. 1 CO (E. 5.2.3).

In this case, it was disputed whether the SRG had violated the diversity requirement of Art. 4 para. 4 RTVA by broadcasting the Federal Council's speech on the Frontex proposal on SRF 1 radio (E. 3). Federal Council explanations of votes are not directly contestable. The incontestability of the explanations also applies in principle to statements made by individual Federal Councillors, insofar as they essentially reproduce their content in the political discussion in the run-up to referendums (E 4.1). For reasons of state policy, the diversity requirement applies more strictly in the run-up to elections and votes (E. 5.4). However, there is no justification for applying the diversity requirement to Federal Council speeches just as strictly as to other programmes relevant to votes (E. 6.3.1).

The Federal Council's decision on the validation of a vote establishes the validity of the result, while the Federal Supreme Court examines its regularity, i.e. its compliance with the guarantee of the free and undistorted formation and exercise of the will of the voters in accordance with Art. 34 para. 2 of the Federal Constitution. The decision to receive the referendum is not a political decision whose review by the Federal Supreme Court could come into conflict with the separation of powers (E. 4.2). Since BGE 135 I 19, the Federal Supreme Court has significantly developed its case law on the requirements of Art. 34 BV for proportional representation in cantonal parliamentary elections. In particular, it has applied a strict standard to the equality of success value, which it ascribes a cross-constituency character and which relates to the distribution of seats between the various lists. The already great importance of lists in the proportional representation system has thus been reinforced. Many cantons have adapted their parliamentary election systems accordingly (E. 8.3).

The jurisdiction of the single court within the meaning of Art. 19 para. 2 lit. b of the Code of Criminal Procedure is initially based on the prosecution's criminal complaint. In the further course of the proceedings, however, it depends on the specific penalty and/or measure that comes into question for the single court (E. 2.4.3). The sentencing powers of the single court (Art. 19 para. 2 lit. b StPO) with regard to the upper limit of two years must be applied restrictively. The limit of two years must be applied strictly. It may not be exceeded under any circumstances (E. 2.5.1). When implementing the "deportation initiative", the legislator refrained from amending Art. 19 para. 2 lit. b of the Code of Criminal Procedure accordingly. However, this does not mean that it is the legislator's intention that a single court can also issue an expulsion order (E.2.7).

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).