January 15th, 2021 – Things to know about home office regulations
With the introduction of home office regulations, the framework conditions for home office work can be defined, which leads to more legal certainty for employers and employees.
The COVID-19 pandemic has led to an enormous acceleration in the spread of home office within a very short time. Experts assume that home office will remain an integral part of the working world in the future. At the same time, the organization and implementation of home office work can give rise to a wide variety of individual issues. The introduction of home office regulations can clarify these individual issues and thus create legal certainty for employers and employees.
Contact: Dr. Karin Pfenninger-Hirschi, Stephan Erbe and Julia Blattner
December 21st, 2020 – Of pandemics and oral proceedings by videoconference
Since the decision of the President of the European Patent Office (EPO) in spring 2020, oral proceedings in examination proceedings have been held by videoconference due to the pandemic. The strict rule that only in seriously justified exceptional cases and at the request of the patent applicant the oral proceedings could be held in the premises of the EPO – which used to be common practice - has provoked sharp criticism in expert circles. Rightly so?
The Decision of the President of the EPO dated 1 April 2020 concerning oral proceedings by videoconference before examining divisions was taken as a measure to contain the coronavirus. However, concerns have been raised in circles of experts that the decision was issued in excess of the powers of the President of the EPO and is not in accordance with the applicable law and the long-standing practice of the EPO.
The President of the EPO bases his decision on Art. 10 (1) (a) EPC, according to which the President shall take all necessary steps to ensure the functioning of the EPO. In doing so, it was disregarded that the measure taken, although expedient in the fight against the spread of the coronavirus, is not absolutely necessary for the feasibility of the oral proceedings. There were sufficient alternative measures available to minimize the possibility of infection with the coronavirus during an oral hearing.
Furthermore, it must be taken into account that Article 116 EPC expressly refers to oral proceedings; the possibility of conducting the proceedings by videoconference is not provided for in the law. The Board of Appeal stated in T1012/03: «Therefore, the term "oral proceedings before the respective department" in Article 116 EPC not only concerns the function of the deciding division but also the location where oral proceedings are to take place» (T1012/03, point 38). Thus, this implied the place where this function had to be exercised, namely the place where the corresponding organ of the EPO was located (T1012/03, point 37). This interpretation of the law corresponds with the established legal practice of the EPO that oral proceedings had to be held on its premises and that only in exceptional cases and at the request of the patent applicant a hearing could be held by videoconference. Accordingly, the President's decision dated 1 April 2020 not only contradicts the recognized practice of the EPO, but rather created such a high obstacle that hardly never the requirements for conducting oral proceedings with physical presence are met.
According to a recent decision of the Swiss Federal Court, a main hearing in a civil case cannot be held by videoconference against the will of one of the parties. This violates the Swiss Civil Procedure Code and is also not permissible on the basis of the extraordinary situation resulting from the COVID-19 pandemic. The purpose of the civil procedural provisions on the main hearing is an oral hearing with the physical presence of all parties in the courtroom. The law generally requires the consent of the parties for the hearing to be conducted in electronic form (BGer 4A_180/2020 dated 6 July 2020).
Accordingly, with regard to the decision of the President of the EPO dated 1 April 2020, one must conclude that it is in conflict with Art. 116 EPC. Such an extensive interpretation of the term "oral proceedings" is neither in line with the sense and purpose of the law or established legal practice, nor can it be legitimised by the current pandemic. Applying a very strict standard, one could even argue that the decision may lead to a violation of the right to be heard within the meaning of Art. 113 EPC or Art. 6 (1) ECHR if the oral proceedings are conducted by videoconference against the will of the patent applicant.
Ultimately, the problem of data security and other technical aspects should not be forgotten, which in extreme cases can lead to an inequality of arms between the individual patent applicants.
It remains to be seen if the critical voices will become louder in the future. According to the opinion expressed here, the decision of the President of the EPO of 1 April 2020 constitutes an excess of competence, which is why the resulting change in the EPO's practice cannot be lawful. In particular, with a view to future legal certainty, it would be desirable for the Board of Appeal to decide whether the conduct of oral proceedings by videoconference is permissible on the basis of Article 116 EPC and the Decision of the President of the EPO of 1 April 2020 on oral proceedings before examining divisions conducted by videoconference without consent of the parties.
(Author: Claudia Erbsmehl, MLaw)
Contact: Dr. Dr. Fabian Leimgruber LL.M.
November 2nd, 2020 – Lectures on inheritance law topics
Dr. Daniel Abt, partner at ThomannFischer and Certified Specialist SBA Inheritance Law, lectures on various inheritance law topics
On 5 November 2020, he will speak at the "Schulthess Forum" at the Park Hyatt Hotel Zurich on the topic "Der Erbteilungsprozess als ultima ratio: praxisrelevante Aspekte zur Planung und Abwicklung". The conference will be recorded for those registered and broadcast as a livestream.
On 14 November 2020, Daniel Abt will give a lecture on "Die Ungültigkeitsklage im schweizerischen Erbrecht" as part of the training course for Certified Specialists SBA Inheritance Law, organised by the Universities of Lucerne and Zurich and the Swiss Bar Association SBA, at the See- und Seminarhotel FloraAlpina, Vitznau/LU.
Contact: Dr. Daniel Abt
October 16th, 2020 – Federal Administrative Court calls off Federal Consumer Price Surveyor
Judgments of the Federal Administrative Court A-1123/2019 and A-1070/2019 of 14 August 2020
In spring 2018, the Federal Customs Administration obliged two Swiss forwarders to apply the simplified customs declaration procedure for certain imports. The simplified customs declaration procedure is particularly widespread for so-called CEP services, i.e. where large quantities of small consignments are imported, especially for consumers (especially orders from online trading). In these cases, the use of the simplified procedure makes sense from a procedural and financial point of view. However, for forwarders who only import very few and mostly larger consignments, usually for commercial or industrial customers, both the financial and organisational expenses would not be justifiable.
The Federal Customs Administration based its order on article 105b of the Customs Ordinance, which requires the Federal Customs Administration to oblige an authorised consignee by order to introduce the simplified declaration procedure if the Federal Consumer Price Surveyor discovers a "disproportionately high fee" and therefore requests the issuing of such an order.
Two freight forwarders, represented by ThomannFischer, challenged the relevant orders of the Federal Customs Administration and have, among other things, questioned wheter article 105b of the Customs Ordinance is compatible with the constitutional framework. The Federal Administrative Court has now confirmed the view of these two forwarders that the Federal Customs Act does not aim at consumer protection and does therefore not provide a sufficient legal basis for consumer protection orders. Since art. 105b of the Customs Ordinance was implemented based on the Federal Customs Act the Federal Administrative Court came to the conclusion that art. 105b of the Customs Ordinance does not have a sufficient legal basis in a formal law. The provision was therefore regarded as unconstitutional and was not applied, which also meant that the order of the Federal Customs Administration had to be revoked.
The forwarding sector highly welcomes these judgments. Customs law should not be misused for the purposes of the Federal Price Surveyor. This was now clearly stated by the Federal Administrative Court.
However, this must apply all the more if one considers another circumstance: Since it was the Federal Customs Administration, and not the Federal Consumer Price Surveyor, who issued the contested orders, the actions of the Federal Consumer Price Surveyor (and in particular the alleged finding of "disproportionate fees") would never have been verifiable. It would not be justifiable under the rule of law for the Federal Consumer Price Surveyor to act in a legal vacuum by issuing binding instructions to the Federal Customs Administration, which the Federal Customs Administration must follow, without it ever being possible to verify the findings underlying the instruction. Also from this perspectivee, the intervention of the Federal Administrative Court was correct and necessary.
Contact: Stephan Erbe
September 15th, 2020 – Retrocessions: Accountability and Reimbursement
In accordance with Swiss Federal Court rulings, asset managers such as banks or trustees must, at the request of their client (as principal), at any time give account of their mandate management and reimburse everything that they have received within the scope of the mandate. So-called retrocessions are particularly affected by this.
Retrocessions are commissions for distribution and portfolio management services which banks and other asset managers receive from providers of investment funds and structured products. These retrocessions are remunerated to a bank or asset manager when they sell the funds to their client (in some cases commissions are also not paid only once but over the holding period of the fund).
In accordance with the Swiss legal provisions on the agency contract, any agent must give account of his agency activities at the principal’s request (Art. 400 Para. 1 CO). This account should enable the principal to control the agent’s activities. The accountability is the basis and precondition of the obligation to return or reimburse anything received as a result of the agents‘s activities. The accountability requirement thus also provides the basis for a client to demand information from banks and asset managers about retrocessions received (in some cases this not only concerns retrocessions from the past year, but possibly also those disbursed over the last decade).
The statutory provision regarding the agency contract also state that the agent must reimburse what he has received in fulfilment of the mandate. This includes - especially in the case of asset management - also indirect benefits which the asset manager receives from third parties as a result of the execution of the mandate. Retrocessions which arise in connection with the management of the assets are therefore subject to the reimbursement obligation pursuant to Art. 400 Para. 1 CO (BGE 137 III 393).
Nonetheless, it is considered permissible for a bank or an asset manager to enter into a contract with the client by which the client waives the right on reimbursement of retrocessions. However, a general waiver does not meet the legal requirements. In order for a waiver to be valid, the client as principal must know the necessary parameters to calculate the total amount of the paid commissions in order to be able to compare it with the agreed asset management fee. This information includes at least the key parameters of the existing agreements with third parties and the scale of the expected compensation. In a recent decision the Federal Supreme Court again approved a claim for reimbursement against a bank, where a waiver had been granted, but the defendant had provided insufficient information on the range of assets invested in products for which retrocessions were paid (BGer 4A_355/2019 of 13 May 2020).
Additionally, there are also aspects of of criminal law in relation to retrocessions: If an asset manager does not report retrocessions to his client, he may be found guilty of unfaithful mismanagement. In BGE 144 IV 294 (also BGer 6B_689/2016 of 14 August 2018), the Federal Supreme Court confirmed a decision of the Cantonal Court of the Canton of Valais, according to which a director and individual shareholder of an asset management company who in 2007 and 2008 received retrocessions and remuneration for the acquisition of new clients from a custodian bank in the amount of approximately CHF 400,000 and did not inform his clients about those payments and was therefore found guilty of unfaithful mismanagement.
Your contact in matters with regard to retrocessions: Dr. Christian Hochstrasser
August 12th, 2020 – Registration procedure for short-time working - important changes as of September 1, 2020
The Federal Council's urgent measures will end on 31 August 2020 with the expiry of the COVID-19 Ordinance regarding Unemployment Insurance. Companies will still be able to use short-time working to maintain jobs due to the coronavirus, but from 1 September 2020, the normal legal provisions will for the most part apply again.
The most important facts at a glance:
- If a valid permit has a total duration of more than three months on 31 August 2020, the entitlement to short-time working ends on this date, even if the permit (order) has a later end date.
- For short-time working as of September 1, 2020, a 10-day pre-registration period applies again.
- For short-time working as of September 1, 2020, the regular forms and no longer the special Covid-19 forms must be used.
- Short-time working must be justified in detail in the pre-registration (a mere reference to Covid-19 is no longer sufficient).
- The consent of the employees affected by short-time working must be already given in writing in the pre-registration.
- The approved short-time working can no longer be settled in a simplified, summary procedure.
Companies are well advised to check their legal situation when receiving short-time working compensation and to settle any outstanding claims in good time (i.e. by 31 August 2020 at the latest), otherwise they will lose them. Likewise, any registration for short-time working or its continuation in September must be made early in August, as a 10-day pre-registration period will apply again from September 1, 2020.
Contact: Dr. Karin Pfenninger-Hirschi
July 3rd, 2020 – Peculiarities and characteristics of joint heirships
If a person leaves several heirs after his/her death, the end of his/her life is simultaneously the beginning of the joint heirship. The purpose of this community basically focuses on the dissolution or liquidation of this "compulsory association".
Nevertheless, a joint heirship can last for (very) long, which is sometimes intended, but sometimes not desired by individual heirs.
In any case, it is of advantage to have knowledge of the specific characteristics of this community.
Contact: Dr. Daniel Abt, Certified Specialist SBA Inheritance Law
June 8th, 2020 – COVID-19 and workplace-related measures
The spread of the Coronavirus (Severe Acute Respiratory Syndrome Coronavirus 2) poses ever new challenges for employers.
The focus is on the tension between health protection, business continuity and the personal rights of employees. In this context, employers must take measures to combat Coronavirus, but only within the bounds of the law and taking into account the interests of employees.
Claudia Erbsmehl, MLaw, currently completing an internship at ThomannFischer, together with a co-author has written an article on this topic which was published in Jusletter on 8 June 2020.
May 12th, 2020 – Appointment of an Executor: Yes or No?
A question often asked in inheritance law consulting practice is: Should one appoint an executor in the will? The answer depends on the specific circumstances.
After a death, the surviving dependants are confronted (often unexpectedly and unprepared) with a variety of administrative and legal tasks, such as
- Clearance of the home;
- Termination of current contracts;
- Assertion of insurance claims;
- Documentation of the competent inventory authority for the purpose of drawing up the obligatory inventory of the estate;
- Handling of tax matters up to and including the date of death;
- Alignment of legacies.
Then, the deceased's lifetime dispositions (often in connection with a marital and inheritance contract) must be examined or implemented, and the division of the estate must be carried out. In the case of testators who are married or living in a registered partnership, the division under matrimonial property law must be carried out in advance.
Legal laymen in particular are often overburdened with these various tasks. This is complicated by the fact that the strict unanimity principle applies in inheritance communities (regardless of the respective inheritance quota).
Of course, heirs can always call on professional support. In contrast to executors, however, individually mandated advisors have no competence with regard to the entire estate. The executor, on the other hand, is legally responsible for the administration of the estate until the division and the arrangement of the division of the estate.
Without claiming to be complete, the appointment of an executor seems particularly useful in the following cases:
- Estate with complex financial circumstances (real estate, companies);
- large number of heirs and/or heirs in dispute;
- disposition of legacies;
- patchwork families;
- absence of close relatives with a corresponding risk of neglecting the estate;
- risk of overburdening the heirs.
In the event of disagreements among the heirs, the executor has the task of mediating and seeking a viable solution. However, he does not have the authority to divide the estate: if the heirs cannot agree on the division, it must be carried out by means of an action for division of the estate. It is precisely in such cases that it is all the more important that the estate is carefully administered until the conclusion of an agreement on the division of the estate or until a division decree has been issued. The corresponding competence of the executor can avert massive damage here.
The appointment of an executor is to a large extent a matter of trust. In addition to the indispensable professional qualifications (inheritance law, tax law, basic principles of asset management etc.), an executor must have the ability to work out pragmatic and sustainable solutions adapted to the specific circumstances and to implement these together with the heirs.
An executor is subject to state supervision. In addition, he is liable for his activities according to the rules of contract law.
Contact person: Dr. Alexander Filli, Attorney at Law and Notary Public
April 17th, 2020 – Ship Mortgages on Inland Waterway Vessels
In the 1990's Inland Cruising was still a comparably small business on European inland waterways. Since then the number of vessels active in European inland cruising has risen significantly and the European fleet is now the biggest fleet worldwide, even surpassing the fleet on the Nile river and represents 41% of the global fleet.
Of the 359 vessel which were registered in 2018 (not including day-trip vessels), some 153 are registered in Switzerland, making Switzerland one of the major hubs in European inland cruising. Financing institutions and other investors regularly secure their investments, inter alia, by means of Swiss ship mortgages. ThomannFischer is the leading law firm in Switzerland when it comes to ship financing in the inland cruising business and regularly advises both shipowners and financing institutions.
This overview over the rules governing Swiss ship mortgages refers to the practice of the Swiss Inland Ship Register. The legal situation regarding maritime ship mortgages, which have to be registered in the Swiss Maritime Ship Register, is largely the same, although some details may be slightly different.
General characteristics of a ship mortgage under Swiss law
A ship mortgage under Swiss law is a right in rem which secures a claim and gives the mortgagee the right to enforce the mortgage under certain conditions and to receive payment from the proceeds of the sale of the vessel, prior to any other, unsecured creditor (apart from prioritized claims). The ship mortgage extends not only to the vessel itself, but also to insurance benefits. Ship mortgages are registered in the ship register and attach to the Vessel, i.e. they will survive a transfer of title.
As a rule, the contractual claim itself will be secured, e.g. the bank’s claim arising from the ship finance agreement. Abstract promises of debt, as are customary in certain other jurisdictions, are not customary with Swiss ship mortgages and Swiss law is also unfamiliar with the concept of the (partial) declaration of submission to execution (Unterwerfungserklärung).
Other than real estate mortgages, ship mortgages do not have to be created by a notarial public deed but rather by a simple written agreement and the subsequent registration in the ship register.
No registration of a mortgage on a ship under construction (hull)
Only vessels with a valid ship certificate can be registered in the Swiss Ship Register. The registration of mortgages on hulls or ships under construction is therefore not possible under Swiss law. However, with an appropriate structure of the financing, the same result can be achieved.
Registration of a maximum mortgage / exchange rate risks
The registration of a maximum mortgage is possible and customary under Swiss law. Since the amount of the mortgage must always be entered in CHF, the registration of a sufficiently high maximum mortgage not only secures ancillary rights but also serves to take into account the risk of currency fluctuations.
Certain claims take precedence over the secured claim of the mortgagee in the event of a forced sale, even if not registered in the ship register. This applies, inter alia, to the wages of the crew for the last 6 months and contributions to general average.
Ship mortgages are generally speaking enforced just like any other mortgage. An important point is that, in the event of a public sale and at least according to the current practice of the Swiss enforcement authorities, the ship has to be brought to Switzerland. The necessity to bring the ship to Switzerland is one of the reasons why it is recommendable to provide for the possibility of a private auction in the financing documents.
Possibility of a private sale
If such a clause has been agreed upon, the mortgagee can sell the pledge privately (i.e. without the involvement of the debt collection office). As in public auctions, private sales will lead to deletion of all registered mortgages. It is the standard approach in practice, to include respective wording in the ship finance agreements. It has to be noted, however, that such clauses become invalid if bankruptcy (insolvency) is declared over the shipowner.
Acknowledgement of foreign enforcements
The legal situation with regard to foreign foreclosures is somewhat unclear. Currently, the practice of the Swiss Inland Ship Register is that they would recognize foreign foreclosures carried out at the place where the vessel berths. However, this practice is not based on a clear statutory rule, but rather on an analogous application of an ancient Swiss Federal Supreme Court’s decision.
Even if the flag authority is not directly involved in the registration of mortgages, it has to be kept in mind that the flag authority is in charge of assessing whether a newly registered vessel fulfils the flag requirements. The fact that this process may take some time may lead to a time gap between application for registration (and the possible deletion in a foreign register) and the confirmation of the actual registration. Adequate measures have to be taken when organising the closing to take into consideration this potential time gap.
Contact: Stephan Erbe
April 10th, 2020 – ThomannFischer and DIRO
ThomannFischer has joined DIRO, one of the largest and independent networks of lawyers on the German market. Nevertheless, ThomannFischer retains its autonomy and independence.
With around 200 law firms in 29 countries, DIRO is one of the largest independent networks on the German market and one of the leading associations of law firms in Europe. Represented by approximately 150 law firms throughout Germany and 50 offices in other European countries.
The network offers an extensive portfolio of legal and consulting services – across country borders and legal fields. The unparalleled combination of regional presence and international connections enables the cooperation partners and clients to always find the right DIRO-lawyer who will provide not only personal and expert advice in all legal matters, but who will also do so in your own language. Through the law firm network there are contacts to more than 1,400 lawyers with expertise and experience throughout Europe.
In DIRO Practice Groups, the experts for certain specialist areas pool their specific expertise and exchange experiences. The close cooperation between the lawyers ensures a constant transfer of knowledge and guarantees that the legal advice received by the clients has practical relevance. The members of the Practice Groups meet regularly at conferences and workshops to further their knowledge and discuss current market trends. If needed, they can also assemble specialized consulting teams across competencies, and they do so quickly, efficiently, and cost-effectively.
March 13th, 2020 – New coronavirus
The pandemic caused by the corona virus is a major challenge for society and the economy. The number of cases of COVID-19 is increasing rapidly worldwide. The new corona virus is particularly dangerous for people over 65 and for anyone with a previous illness.
Even in these exceptional times we are happy to be at your disposal for your private and/or business concerns.
We follow the recommendations of the health authorities. The protection of our clients and employees is of great concern to us. We are happy to advise you personally in our office, but also by telephone or e-mail.
We look forward to further contacts and thank you for the trust you have placed in us.
January 30th, 2020 – Abolition of bearer shares and introduction of criminal sanctions against board members and shareholders
Federal law upon the implementation of recommendations of the Global Forum on transparency and exchange of information for tax purposes of june 21 2019 (BBl 2019 4489)
As per november 1 2019, the so-called "GAFI provisions", which have been in force since july 1 2015, were significantly tightened in two respects.
1. De facto abolition of bearer shares
Bearer shares are only permissible if (i) the company has equity securities listed on a stock exchange or (ii) the bearer shares are structured as book-entry securities and deposited with a depository designated by the company in Switzerland or entered in the main register (Art. 622 para. 1bis nOR).
Bearer shares still existing as per november 1 2019, which are inadmissible in the above sense, will - in the absence of voluntary conversion - be converted legitimately ("automatically") into registered shares as per may 1 2021, with effect vis-à-vis any person. The new registered shares shall, if possible, give the shareholder the same legal position as the former bearer shares. Therefore, the shares affected by the conversion will retain their nominal value, their payment ratio and their characteristics with respect to voting rights and pecuniary claims. Furthermore, their transferability is not restricted.
As a result of the described procedure, the commercial register entry, the Articles of Association and the share register will no longer reflect the actual legal situation as per may 1 2021.
The Commercial Register Office must amend the incorrect commercial register entries ex officio, together with a note stating that the Articles of Incorporation contain information that differs from the commercial register entry (and from the actual legal situation).
The company must correct the share register and, if necessary, create new registered shares. Finally, the company must amend its Articles of Association, at the latest when it next amends its Articles of Association, because the legislator deliberately refrained from setting a deadline. As long as the company has not complied with this obligation, the Commercial Registrar will reject any further application for an amendment to the Articles of Association.
2. Criminal sanctions for failure to notify beneficial owners
A person who alone or in joint agreement with third parties acquires shares and thereby reaches or exceeds the limit of 25% of the share (or company) capital or voting rights must notify the company within one month of the beneficial owner(s) of the shares. The provision in this regard, which has been partially supplemented compared to the previous provision, is contained in Art. 697j nOR.
Whereas the violation of this reporting obligation has so far had (exclusively) civil law consequences in the form of the suspension of voting rights and the forfeiture of property rights, criminal law sanctions in the form of a violation with penalty consequences now threaten.
3. Criminal sanctions for breaches of duty by company bodies
The misconduct of company bodies will now also be sanctioned under criminal law. According to Art. 327a of the Swiss Penal Code (nStGB), persons on governing bodies are threatened with a fine if they fail to keep the registers (share register, register of beneficial owners) in accordance with their duties, in the event of intent.
In addition, the improper keeping of the above-mentioned registers constitutes an organisational deficiency within the meaning of Art. 731b para. 1 item 3 nOR with the unpleasant consequences provided for therein.
4. Recommendations to the companies
For the purpose of avoiding (i) the "automatic" conversion of their unauthorised bearer shares and (ii) criminal sanctions against their directors, companies are well advised to ensure that
- still existing bearer shares are structured as book-entry securities or converted into registered shares and outstanding bearer shares are redeemed;
- the books and records are kept in accordance with the obligations;
- no shareholders exercise their rights in violation of the reporting obligations;
- the supporting documents on which a shareholder declaration is based are kept in accordance with duty.
Contact: Dr. Markus W. Stadlin
January 15th, 2020 – Commentary regarding the Basel Tax Act
The first edition of the Commentary, published at the end of 2019, ties in with the 1970 Grüninger/Studer Commentary on the Basel Tax Act and replaces Schöniger's 1992 dissertation on the former Property Transfer Tax Act. It presents the Basel tax law including the Basel property transfer tax in a well-founded and compact manner from a practical perspective. It is based upon the experience of both Basel tax consultants and the cantonal tax administration.
The 1,637-page work was composed by more than 40 authors and should prove to be an indispensable reference work for anyone concerned with Basel tax law.
Dr. Markus W. Stadlin, President of the Basel Tax Appeal Commission, and Dr. Christian Hochstrasser are largely responsible for the commentary regarding the Property Transfer Tax Act.
January 1st, 2020 – ThomannFischer welcomes Dr. Christian Hochstrasser as a new Partner
As of January 1, 2020, Christian is a new Partner at ThomannFischer. Christian Hochstrasser joined ThomannFischer in 2012 and forms part of ThomannFischer's transport and logistic team. Besides that, Christian Hochstrasser deals with corporate, contract and litigation matters.
Dr. Christian Hochstrasser
December 20th, 2019 – ThomannFischer welcomes Marcel Schirbach
European and Swiss patent attorney Marcel Schirbach is now one of the specialists in our law firm and is therefore available for the concerns of our clients.
He previously worked in the patent departments of major Swiss industries and law firms in Zurich and Berne, in particular in the fields of electrical engineering, mechanical engineering, physics, business process patenting and software patenting.
October 31rd, 2019 – ThomannFischer welcomes Julia Blattner
Attorney at Law Julia Blattner will join our team and support our clients from 1 November 2019.
Previously, she completed internships in law firms in Zurich and Basel, at courts and in an international pharmaceutical company in Basel.
She works as a counsel and litigator before courts and arbitration tribunals, particularly in the fields of contract-, corporate-, commercial-, inheritance- and civil procedural law.
October 16th, 2019 – Business succession in inheritance law: strengthening the economy, securing jobs
The Federal Council intends to take additional measures to facilitate company succession under inheritance law. Among other things, it may become possible to assign the entire company to one heir even if the testator has not left a corresponding disposition. In this way, the revision will contribute to the greater stability of companies and to securing jobs.
As part of the ongoing revision of inheritance law, the Federal Council proposes additional measures to remove stumbling blocks that may exist under inheritance law specifically for entrepreneurs or their heirs.
These measures are expected to have positive effects on family successions and thus contribute to a higher stability of companies and to securing jobs.
The Federal Council's preliminary draft contains four central measures designed to facilitate business successions under inheritance law.
- Firstly, the heirs are accorded the right to be allocated the entire business within the framework of the division of the estate if the testator has not made dispositions to this effect. The courts could therefore allocate the entire company to one heir if this is requested by an heir. The intention is to prevent the dismemberment or closure of companies.
- Secondly, to avoid serious liquidity problems, the possibility of obtaining a deferral of payment from the other heirs in favour of the company's inheritor is introduced.
- Thirdly, specific rules for the determination of the value of the company are laid down: The company value will no longer be determined at the time of the inheritance, but at the time of its transfer; the preliminary draft also distinguishes between assets that are necessary for the operation of the business and those that are not. This is intended to mitigate the entrepreneurial risk assumed by the enterprise's inheritor; at the same time, the other heirs are not disadvantaged with regard to assets that can be easily extracted from the enterprise.
- Finally and fourthly, heirs entitled to a statutory succession right will enjoy greater protection if another heir receives control over the company: In that eventuality, it will not be possible to satisfy their statutory succession rights by giving them a minority interest in the company without their consent.
The increase in the testator's testamentary freedom and the additional proposed measures have a positive effect on successions within the family. This in turn has positive economic growth effects: Investments may to an increased extent be made when it makes economic sense to do so, and not when they have to be restricted due to an imminent or recently completed settlement of the family business succession. The proposed measures also contribute to the greater stability of companies and thus job security.
The consultation procedure has now been completed. The Federal Office of Justice will now evaluate the results of the consultation and continue to work on the ongoing revision of inheritance law. There are no concrete details as yet with regard to the time aspects of the revision.
Contact: Dr. Daniel Abt
September 13th, 2019 – Amendments to Swiss Law on Limitations Enter Into Force on 1 January 2020
The law on limitations is a highly technical subject but one that is of great practical importance, as it decides until when actions may be brought. The law thus attempts to triangulate between legal certainty, legal clarity and legal concord. Because the Swiss Code of Obligations did not appear to be up-to-date, particularly in comparison to foreign legislation, the Federal Parliament after many years of deliberation on 15 June 2018 passed an amendment to the Code of Obligations which will be put into effect by the Federal Council on 1 January 2020. The most important changes may be resumed briefly as follows:
- The relative limitation period for claims founded on tort and unjust enrichment is increased from one to three years. This is undoubtedly one of the most significant changes, as the very short one year time limit often- particularly in the field of intellectual property law - proved to be problematic for injured parties.
- The absolute limitation period of ten years, on the other hand, remains unchanged, with one exception: in the case of homicides and personal injuries, it is now 20 years.
- Claims for damages and satisfaction under civil law shall expire at the earliest with the commencement of the criminal prosecution limitation period.
- The limitation period will no longer be suspended as long as the claim cannot be asserted before a Swiss court; in future, suspension will only occur if it was not possible to assert the claim for objective reasons.
- The parties will be able to agree in writing that the statute of limitations is suspended during settlement discussions.
- The objection that a claim is statute-barred may be waived for a maximum of ten years; extensions are, however, possible.
- The waiver of the objection must be done in writing. As before, the objection cannot be waived in advance. What is new, however, is that the waiver is already permitted from the beginning of the limitation period; according to previous case law, this was only possible from the time the claim arose.
- In general terms and conditions, only the user may waive the objection of limitation.
- Das Übergangsrecht sieht vor, dass bei laufenden Fristen diejenige gilt, welche länger ist.
- The transitional law stipulates that for current limitation periods, the one that is longer applies.
From a user's point of view, it must be noted that Parliament's selective amendments will not help to simplify the legal situation because they are inserted into an already complex system. We therefore recommend that experts be consulted on any questions in this area, and would of course be happy to assist you.
Contact: Daniel Plüss, LL.M.
August 12th, 2019 – Dr. Daniel Abt Elected to the Board of Succcessio.
Dr. Daniel Abt, Certified Specialist SBA Inheritance Law, has recently been elected a Member of the Board of the Successio Association.
The purpose of the Association is to promote both the Swiss and international practice and science of inheritance law, especially by organising events and supporting scientific publications and research projects. In this context, Dr. Abt supports notably the publication of the professional journal “successio” and the publication of “successio online” as well as the organisation of the symposium "Successio Forum".
Individuals who support the purpose of the Association, that is the promotion of the Swiss and international practice and science of inheritance law, can become members of the Successio Association; this applies in particular to lawyers being active as a Certified Specialist SBA in inheritance law. The Association currently has 299 members.
Dr. Daniel Abt - together with Dr. Thomas Weibel - is the editor of "Praxiskommentar Erbrecht" (Practical Commentary on Inheritance Law) and won an award of the Successio Association in the year 2013.
Contact: Dr. Daniel Abt
July 16th, 2019 – Income tax in the canton of Basel-Stadt
The Canton of Basel-Stadt increases the tax burden for high income
On 18/19 May 2019, the voters of the Canton of Basel-Stadt adopted an initiative with 52.7% votes in favour, which desires for a significant increase in income tax for income of CHF 200,000 or more. The initiative was obviously committed to redistribution, as the canton of Basel-Stadt has always recorded high budget surpluses for years.
Income above CHF 200,000 will now be taxed at 28% (instead of 26% as before), and income above CHF 300,000 at 29%. For married couples, the double thresholds apply.
As a result, the planned introduction of the tax law revision on 1 January 2020 will make the canton of Basel-Stadt even less attractive for well situated people in an intercantonal comparison than it already is. With the massive revaluation of real estate two years ago (and the associated increase in the controversial own rental values, some of which have more than doubled) and the high cantonal wealth tax, the canton of Basel-Stadt must be qualified as a fiscal deterrent. Together with the highly progressive Direct Federal Tax and the social security contributions, the maximum tax rate in Basel is approximately 50%, which seems "Scandinavian"!
If, irrespective of this tax rate, you cannot or do not want to turn your back on the canton (or are nevertheless considering moving in), you should keep an eye on the remaining possibilities for tax optimization. At maximum tax rates (including social security contributions) of 50%, any reduction in taxable income by CHF 1,000 is logically "worth" CHF 500.
Without claiming to be exhaustive, the following information is intended to give you a few tips on legal tax optimization:
Tax-reducing possibilities for employed persons
- Maximum payments (currently CHF 6,826.--) into the bound pension plan (pillar 3a);
- Maximum payments into the pension fund, especially for missing contribution years;
- Deduction of all uninsured medical expenses (dentist!);
- Renovation of real estate during periods of high income (and not only at retirement!);
- Capital withdrawal from the pension fund (in whole or in part) and tax-free consumption of assets instead of periodic taxable rental payments;
- Acquisition of real estate property outside the canton and thus transfer of part of the tax sovereignty outside the canton of Basel-Stadt.
Additional possibilities for self-employed persons
- Maximum payments (currently CHF 6,826.-- if you join a pension fund; 20% of net earned income if you do not join a pension fund, maximum CHF 34,128.--) into the restricted pension plan (pillar 3a);
- Choice of a pension fund solution with maximum savings contributions and, if necessary, payments for missing contribution years;
- Exercise of gainful employment via a corporation (GmbH or AG) and receipt of a salary. This option is of particular interest for self-employed persons in the canton of Basel-Stadt who reside outside the canton, because their salary is taxed at their place of residence. Such a measure should offer considerable savings potential, especially for independent professionals (doctors, lawyers, etc.)!
- If the gainful activity is discontinued, sale of the company (GmbH or AG) and realization of a tax-free capital gain. If the company is established through conversion of an individual enterprise or a partnership, there is a five years waiting period to be observed.
On 18/19 May 2019, the tax situation in Basel-Stadt has deteriorated for natural persons. In particular, so-called "expats" should consider to take up residence in border cantons (Basel-Landschaft, Solothurn, Aargau). Massive annual tax savings can thus be achieved. Persons running their own business in the Canton of Basel-Stadt should consider transforming their business entity (individual enterprise, partnership) into a corporation (GmbH or Aktiengesellschaft). All possibilities for deduction should be given particular attention.
Contact: Dr. Alexander Filli
July 4th, 2019 – Dr. Alexander Filli has now been elected Member of the Board of Directors of Chambre de Commerce Suisse en France CCSF
ThomannFischer congratulates Dr. Alexander Filli on his election to the Board of the Chambre de Commerce Suisse en France.
The Chambre de Commerce Suisse en France, which has existed for 100 years, is an association under French law that aims to develop and promote economic relations between France and Switzerland. With regular events, it serves the information needs and the exchange of cross-border companies. Dr. Alexander Filli grew up bilingual (French/German) and works in both languages (in addition to English).
June 24th, 2019 – Stephan Erbe elected as Chairman of the Swiss Maritime Law Association
Stephan Erbe was elected as the new President of the Swiss Maritime Law Association (SMLA) at the General Assembly of 20 June 2019.
The purpose of the SMLA is to promote the development of Swiss and international maritime law. This also includes promoting the development of relevant Community law and (maritime) international law as well as the law of inland waterways.
The SMLA is also the Swiss national association of the Comité Maritime International (CMI). The CMI is the oldest and most important international association for the promotion and development of the law of the sea, from the centre of which numerous international treaties in force today originate.
For transport law matters, please contact Stephan Erbe or Dr. Christian Hochstrasser.
June 20th, 2019 – Switzerland opens consultation procedure on CLNI 2012
On 29 May 2019, the Federal Department of Foreign Affairs opened the consultation procedure on the 2012 Strasbourg Convention on the Limitation of Liability in Inland Navigation and its implementation (amendment of the Swiss Maritime Navigation Act). Interested parties are invited to submit their comments by 30 September 2019. The proposal is then to be submitted to the Federal Parliament, where it could be dealt with at the earliest in 2020. If accepted, the Federal Government would be authorised to declare its accession to the CLNI 2012. Accession is therefore not expected until 2020 at the earliest. It is very much welcomed that this step has finally been initiated and that Switzerland takes the necessary steps to ensure a level playingfield for the Swiss inland navigation industry.
Today, Switzerland is a member of the predecessor agreement, the Strasbourg Convention on the Limitation of Liability in Inland Navigation of 4 November 1988 ("CLNI 1988"). In accordance with the Convention on Limitation of Liability under Maritime Law (LLMC), the CLNI introduced in 1988 a limitation of liability which was actually contrary to principles of Swiss civil law: The owner and certain other parties, such as charterers or insurers of an inland waterway vessel, can limit their liability for death, personal injury, damage to property and damages caused by delay if such damage occurs in connection with the operation of the vessel. The limitation of liability applies if the liable party establishes a liability fund or, if national law does not exclude this (which is not the case for Swiss law), even without the establishment of a fund. The maximum amount of liability is calculated on the basis of a formula based on the displacement and the engine power of the vessel concerned.
The CLNI 1988 was only open to the contracting states of the Mannheim Convention or the Moselle Treaty and today applies in Switzerland, Germany, Luxembourg and the Netherlands. Since, not least due to the opening of the Main-Danube Canal, a system was desired which could also apply to the Danube states, and since the maximum liability amounts, which have remained unchanged for more than 30 years, are widely considered insufficient, an amendment was adopted on 27 September 2012 to remedy these deficits, the CLNI 2012.
In June 2018, the Netherlands, became the fourth country to ratify CLNI 2012 after Serbia, Hungary and Luxembourg, thus reaching the minimum number required for CLNI 2012 to enter into force. At the same time, the Netherlands, Luxembourg and Germany terminated the CLNI 1988 with effect from 1 July 2019. The CLNI 2012 can therefore enter into force on 1 July 2012.
With the termination by 3 out of 4 contracting states, the CLNI 1988 as a treaty ceases to exist. However, in Art. 126 SSG, Swiss legislation declares the CLNI 1988 integrally applicable, thus declaring it a part of domestic law. The CLNI 1988 will therefore and for the time being, remain applicable in Switzerland as national law. It is understood that the reference to the CLNI 1988 is a reference to the system of limitation of liability, but not to the limited geographical scope of the convention. By means of contemporary interpretation, the reference should be interpreted in such a way that it already today applies to the entire network of major European waterways of international importance. If Switzerland were to join the CLNI 2012, however, Art. 126 SSG would also be amended accordingly so that reference would be made to the CLNI 2012. The CLNI 1988 would then definitly be history also for Switzerland.
For transport law matters, please contact Stephan Erbe or Dr. Christian Hochstrasser.
May 10th, 2019 – ThomannFischer’s Transport Law team recommended by Legal500 and Who’s Who Legal
ThomannFischer congratulates Stephan Erbe and Dr. Christian Hochstrasser for being recommended for transport law and shipping by Legal 500 and Who’s Who Legal Switzerland.
«Stephan Erbe is ‘highly recommended’ by sources for his work in transport law. He is considered an expert in the field, and has specialised knowledge of ship financing. Christian Hochstrasser is an expert transport lawyer, with a wealth of experience in the field. He acts as both litigator and adviser to a number of clients in the sector.» (Who’s Who Legal)
«The 'efficient and down-to-earth' team at ThomannFischer is 'big enough to have market influence and small enough to make clients feel well looked-after'. With 'competence' in inland navigation and maritime matters, 'very good shipping administration and contracts lawyer' Stephan Erbe and senior associate Christian Hochstrasser, who is recommended for his advice on labour law, 'know their clients' businesses by heart'.» (Legal500)
April 22nd, 2019 – Practitioner’s Commentary on the Law of Succession 2019
The fourth edition of the Practitioner’s Commentary on the Law of Succession (Praxiskommentar Erbrecht) will soon be published, presumably in August 2019.
The Practitioner’s Commentary on the Law of Succession has been awarded with a prize from the association of «successio» in the year 2013. With this prize, the association honours publications which are "of exclusive importance for practice and science regarding the Swiss inheritance law in its national and international context".
The fourth edition comprises approximately 2700 pages. Dr. Daniel Abt, Certified Specialist SBA Inheritance Law, is co-editor and co-author of this standard reference book on Swiss inheritance law.
PraxKomm Erbrecht 2019
March 26th, 2019 – Pharma Update: Will the recent partial annulment of the Servier decision by the General Court provide some relief in Reverse Payment Patent Settlement Cases for Pharmaceutical Innovators?
In its long-awaited decision dated December 12, 2018 (Servier v. Commission T-691/14), the General Court of the European Union (EGC) commented a second time on "pay-for-delay" patent settlement agreements in the pharmaceutical sector. In Re Sevier followed the first decision of the General Court to pay-for-delay settlement agreements dated September 08, 2016 (Lundbeck v. Commission T-472/13).
The continental European competition causation as well as the US-American antitrust law causation belongs, without any doubt, to one of the most complex areas in law. Some of the most difficult causation issues occur in monopolization cases, i.e. in the context of the exclusive right of intellectual property rights. Open legal questions in relation to this monopolization background caused substantive legal uncertainty the reccent years, when dealing with settlement agreements of intellectual property right disputes, wherein the imposed draconian fines of the relevant competition authorities, namely the Federal Trade Commission (FTC) and the European Union (EU) Commission, significantly contributed the legal uncertainty. Especially the pharmaceutical industry was concerned by the legal uncertainty, depending more than other economic sectors on the possibility to recoup their research and development investment secured by intellectual property rights.
Significance of In Re Lundbeck and In Re Servier
Reverse payment patent settlement agreements are mainly known for the pharmaceutical sector, where to avoid the risks of litigation, the patent holder (originator of the drug) agrees to settle a patent dispute with a patent challenger (generic competitor(s)) with a settlement payment that provides the patent holder’s business with ongoing patent protection. Given the uncertainties of patent litigation, such settlements appear sensible commercial arrangements, having been characterized in a series of cases by the FTC and the EU Commission as anticompetitive agreements which prevents or delays market entry (assuming the settlement payment equates to a recognition of the patent’s invalidity). In Re Lundbeck followed the landmark decision of the US Supreme Court In Re Actavis dated June 17, 2013 (FTC v. Actavis, 133 S. Ct. 2223, 570 U.S. 756 (2013)) on reverse payment patent settlement agreements.
It was expected that the EU General Court’s decision In Re Lundbeck would bring some clarity to the legal analysis that applies to reverse payment patent settlement agreements under European Union law. However, In Re Lundbeck, the General Court had mainly confirmed the EU Commission’s decision without illuminating in general the comprised conflicting ideas about the interaction of competition law and intellectual property rights in the pharmaceutical sector. However, the principle of legal certainty is of basic importance for pharmaceutical companies, which heavily depend in their research on a proper working intellectual property protection,when being involved in patent litigation considering settling a dispute, especially in the context of a continuing trend of antitrust and competition authorities to apply competition and antitrust law to contexts where IP rights would normally dictate that the right holder is legally protected from competition. Thus, the second judgment on reverse payment agreements In Re Servier by the General Court was a long-awaited decision in the hope the get more clarity analyzing patent settlement disputes and drafting appropriate settlement clauses.
In RE Lundbeck and In Re Servier
After its first decision In Re Lundbeck (Lundbeck v. Commission T-472/13) of the General Court of the European Union (EGC) dated September 08, 2016 (explanatory note: the Lundbeck decision has been appealed at the European Court of Justice (ECJ) December 2016 (Rs. C-591/16)), The EGC has given a long-awaited second judgment on reverse payment agreements reviewing the Commission fining decision concerning patent settlements entered into by Servier and five competitor generic producers (Servier v. Commission T-691/14).
The EGC recapitulated the Commission finding for most of the contested agreements holding that they constituted restrictions of competition "by object" according to Art. 101 of the Treaty on the Functioning of the European Union (TFEU). Thus, for those agreements, there was no need to review the Commissions "by effect"-analysis. According to Art. 101 TFEU, an undertaking constitutes a potential competitor if there are real and concrete possibilities that it enters the market and competes with the already established undertakings, following an economically viable strategy, without facing insurmountable obstacles on its entry to the market (cf. para. 318/319 In Re Servier citing T-519/09 etc.). The Court confirmed that the generic companies were potential competitors of Servier at the time the agreements were concluded, further that the reverse payments were an inducement to the generic competitors not to enter the market, and that the stipulations of not-to-challenge and not-to-market were not based on the parties' recognition of the validity of Servier's patent but rather on financial inducement by the offered prospect of said payments.
Concerning the fines of the generic competitor KrKa, the EGC, on the contrary, hold, that there was no restriction "by object" or "by effect" under Art. 101 TFEU. Krka and Servier had agreed a settlement for 7 CEE (Central and Eastern-Europe) markets for which Krka was licensed under the Servier patents and agreed to acknowledge the Servier patents in further 18 to 20 markets. In addition, Krka sold own patents to Servier. The EGC hold that neither of the agreements between Servier and Krka constituted an inducement not to enter the markets, thus that these agreements were not anti-competitive "by object". According to the EGC, the Commission had not carried out a complete and sufficient analysis of whether the contested clauses had anti-competitive "effects".
Concerning the Art. 102 TFEU allegations, as to abuse of a dominant market position, the EGC completely annulled the Commissions finding, clarifying that the Commission did not define the market correctly. The Commission had wrongly alleged that perindopril differed from alternative drugs by its therapeutic application. The Commission, in addition, underestimated the propensity of the patients to change to alternative drugs, and had given a too heavy weight to the impact of pricing in analyzing the competitive constraints. Servier, so the Court, did not have a dominant position in the relevant markets. The EGC emphasized that competition in the pharmaceutical industry is not comparable to other economic sectors, as non-price competitive constraints can have significant impacts.
In its decision, the EGC was obviously aimed to balance the various reluctant issues related to the principle of legal certainty, the judicative relief by dispute settlements, the incentive to innovation by a working intellectual property protection and the benefits of a free competitive market. In this sense, the EGC In Re Servier clearly recapitulated that a granted patent is presumed valid and that parties in a dispute should be encouraged to conclude settlement agreements rather than pursuing extensive and costly litigations. The Court held that, thus, patent settlements are not necessarily contrary to competition law based on Art. 101 and 102 TFEU.
"As regards patents, …, when granted by a public authority, a patent is presumed to be valid and an undertaking's ownership of that right is presumed to be lawful. The General Court emphasizes, lastly, the importance of settlement agreements, since the parties to a dispute should be authorized, indeed encouraged, to conclude settlement agreements rather than pursuing litigation. The General Court concludes that the adoption of settlement agreements in the field of patents is not necessarily contrary to competition law."
Nevertheless, a balance needs to be found between allowing such settlements and the risk of misuse to competition law. In this necessary "balancing exercise", it is important to analyze if there was a genuine dispute that is subject of the settlement agreement, and if so, it has to be examined if the recognition of the validity of the patent in question would itself be a legitimate reason for keeping the generic competitors from entering the market. Otherwise, the agreement cannot be based on a mutual acknowledgment that the patent is still valid.
In summary, the EGC confirmed, in essence, the findings of the EU Commission under Art. 101 TFEU and its applicability to horizontal pay-for-delay agreements relating to pharmaceutical patent disputes, though it applied a greater scrutiny to the reverse payments. In contrary, In Re Servier, the EGC seemed to correct the Commission's approach to Art. 102 TFEU violations. Up-to-now, the EGC mostly upheld the Commission's findings when applying Art. 102 TFEU. In Re Servier, the first time, the EGC substantially corrected the Commission's approach in holding the Commission in its analysis to more founded economic standards. In Re Servier, the Court takes a more active role, as in earlier casese, in controlling the Commission's analysis which leads to the draconian fining decisions of the recent years, by reviewing various issues as market definitions and market dominance. At least, the decision In Re Servier seems to signal the Commission that a more profound analysis is needed in providing their cases.
Contact: Fabian Leimgruber
Please see in regard to this articel also the following:
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PR andEvent Synopsis
January 29th, 2019 – Has Gini/Durlemann Finally Come to an End?
A recent decision by the Swiss Federal Supreme Court gives reason to believe that the controversial Gini/Durlemann practice may finally be abandoned.
A potentially ground-breaking Federal Supreme Court ruling (Decision 4A_602/2017 of May 7, 2018) suggests that the notorious Gini/Durlemann practice may soon be abolished. If so, it would finally facilitate recourses for transport insurers in Switzerland; however, it remains too early to be certain if and when this will happen.
Switzerland is an exotic country when it comes to an insurer's recourse possibilities. Due to the ominous Gini/Durlemann practice applied by the Federal Supreme Court for more than 60 years, insurers may take recourse to the party that is liable under a contract only if the latter acted intentionally or with gross negligence. However, where a simple fault occurs (ie, a merely negligent breach of contract), the insurer is barred from recourse.
The Importance of Gini/Durlemann in Transport Law
Today, transport insurers are involved in almost every transport damage case. If a transport insurer pays damages by compensating an insured party, it can take recourse against the carrier only if it can establish gross negligence on the part of the carrier. Since the threshold for this is rather high and numerous questions of evidence can arise, many insurers waive recourse in Switzerland from the outset.
Abolishment of Gini/Durlemann Practice?
The Gini/Durlemann practice has not yet been abolished. In its current decision, the Federal Supreme Court allowed an insurer to take recourse against a party liable under a strict liability (ie, under tort rules but without fault). However, the court did not rule on whether this softening of the Gini/Durlemann practice also applies to parties liable under a contractual liability.
However, one point is encouraging: in justifying its change in practice, the Federal Supreme Court explicitly and decisively relied on the political intent to abolish the Gini/Durlemann practice and referred to the planned new art. 95c of the Insurance Contract Act. According to this new provision, insurers' recourse should be permitted against all liable parties (ie, explicitly against contractually liable parties as well). Since it was the explicit idea of the Federal Supreme Court to be guided by this planned revision, it may rightly be assumed that the court would come to the same conclusion if a recourse against a contractually liable party must be decided on. However, such a decision has not yet been published; therefore, for the time being, it seems likely that Gini/Durlemann will be abolished completely, but this has not yet taken place.
Summary and Significance for Transport Insurers
1) The Federal Supreme Court has indicated in a non-transport law decision that it could completely abolish the so-called Gini/Durlemann practice in the near future. However, there is no certainty in this regard until a respective judgement will have been passed.
2) If the Gini/Durlemann practice were abolished, this would mean that transport insurers would no longer be limited in Switzerland when it comes to recourses against carriers or freight forwarders causing the damage.
3) Switzerland would thus finally adapt to international standards on this point.
Contact: Stephan Erbe
December 19th, 2018 – Pitfalls of the Contractual Penalty
In the context of our consulting activities, we had to deal with a commercial law issue, which suggests that our clients should be informed about the advantages and disadvantages of the institute "contractual penalty".
The contractual penalty is in accordance with Art. 161 para. 1 CO due, "even if the creditor has not suffered any damage."
Accordingly, it is advisable to agree upon a contractual penalty, if the main obligation underlying the contractual relationship is not easily enforceable, e. g. in the case of obligations to refrain and in toleration obligations. This includes shareholder agreements and non-competition clauses. The contractual penalty can also be useful in cases where the proof of damage encounters difficulties or no damage in the legal sense can be proven.
If a contractual penalty has been agreed upon, it is the creditor's responsibility to furnish evidence of the legal basis, as a rule the non-fulfilment or improper fulfilment (i. e. late or bad performance) of the (primary) obligation agreed between the parties. The assertion of the contractual penalty as a "performance promise subject to a condition precedent" thus presupposes the occurrence (and proof) of the aforementioned condition.
The wording of the law does not, however, provide for the further precondition that the debtor must be at fault. In analogous application of Art. 97 ff. CO, this fault is presumed, so that it is incumbent on the debtor to furnish proof that he is not at fault for the default in performance.
According to Art. 163 para. 2 CO, the contractual penalty - subject to a different party agreement - cannot be claimed if the fulfilment of the main obligation has subsequently become impossible due to a circumstance for which the debtor is not responsible.
If the damage suffered by the creditor exceeds the amount of the contractual penalty, the creditor may demand this additional amount - subject to other agreements between the parties - only insofar as he can prove that the debtor is at fault (Art. 161 para. 2 CO).
The aforesaid rule of proof, deviating from the ordinary one applicable in contractual relationships as given by Art. 97 ff. CO, is difficult to explain and is sharply criticised in teaching. In some cases, the teaching proposes to reduce the requirements for proof of fault or to presume the ordinary allocation of the burden of proof applicable in contractual relationships (Art. 97 ff. CO) as tacitly agreed. We believe that there is no legal basis for the former, and we reject the latter as legally untenable.
We note from the information provided that the legal institution "contractual penalty", which can prima vista be attributed to the subject damage issue, has an important and underestimated relation to the subject culpability.
In our opinion, from a creditor's viewpoint, the following results from what has been said:
- The conclusion of a contractual penalty should be well considered even in cases, where evidence of damage could be difficult.
- In this context, great attention must be paid to the issue of fault and proof of fault.
- The legal provisions are not of a mandatory nature, therefore the clause on contractual penalty may and should be adapted to the given circumstances.
We will be happy to provide you with our know-how, preferably before concluding a contract with a contractual penalty.
Contact: Dr. Markus W. Stadlin
September 10th, 2018 – Job Registration Requirement as of 1 July 2018
Since 1 July 2018 a job registration requirement (implementation of Art. 121a BV, "Mass Immigration Initiative“) is in force in Switzerland.
The most important information at a glance:
Employers are obliged to notify the Regional Employment Agencies (RAV) of vacancies in professions/occupations with at least 8 percent unemployment rate in Switzerland (from 1 January 2020 the threshold will be lowered to 5 percent unemployment rate).
The professions concerned and the job titles assigned to them are published by the State Secretariat for Economic Affairs SECO in the "list of occupations".
Job vacancies are also subject to the registration requirement if recruitment is carried out through private employment agencies, headhunters or temporary employment agencies.
The RAV must inform employers within three working days of notification to the agency whether suitable dossiers have been reported by jobseekers. In order for the RAV to propose specific dossiers, the employer must submit a detailed profile of requirements.
The employers invite suitable jobseekers to an interview or aptitude assessment and inform the RAV whether they will be employed or not.
All registered positions are prohibited from publication (publication ban) for five working days; this five-day publication ban starts on the working day after the vacancy is published on the online job portal that can only be accessed by jobseekers registered with the RAV. The position may only be advertised publicly after this period has expired.
Exceptions - there is no registration requirement for:
- jobs within a company, an association of companies or a group that have been filled by internal staff employed there for at least six months; this also applies to apprentices who are employed after completing their apprenticeship;
- employment of persons connected with an authorised signatory in the company through marriage or registered partnership, or through blood or through marriage in a straight line up to the first degree of collateral line;
- employment lasting a maximum of 14 days;
- the employer himself finds and employs jobseekers registered with the RAV.
The cantons are responsible for monitoring compliance with the job registration requirement. Violations of the registration requirement must be reported to the criminal prosecution authorities by the cantonal implementing agencies in accordance with Art. 117a FNA and can be punished with a fine of up to CHF 40,000.
Contact: Dr. Karin Pfenninger-Hirschi
June 11th, 2018 – Application of American inheritance tax to estates of persons resident in Switzerland
The basic situation that triggers an American inheritance tax is the death of a US citizen. Inheritance tax is levied irrespective of the US citizen's place of residence at the time of his death and is exclusively linked to the deceased's nationality. If a US citizen residing in Switzerland dies, an American inheritance tax is due on his assets.
The estate of anAmerican cititzen abroad is taxed in the same way as that of a US citizen who lived in the USA.
The second issue that triggers an American inheritance tax, unlike situation 1, is not bound to the deceased's citizenship. The condition triggering an American inheritance tax, is the possession of so-called US situs assets. US situs assets are US real estate and US assets (including US securities from investment funds incorporated in the USA).
American inheritance tax law thus also covers estates of non-Americans resident in Switzerland whose estate contains assets qualifying as US situs assets.
What taxation options are available?
In the second situation described above, two alternative American taxation models are conceivable:
Firstly, the US Internal Revenue Service (IRS) grants an exemption limit of USD 60,000.-- on US situs assets. US situs assets with a value below the exemption limit therefore don’t have to be declared. However, if US situs assets with a value of more than USD 60,000.-- are part of the estate, all US situs assets must be declared to the IRS. The exemption limit is then deducted from the actual value of the US situs assets. The difference is taxed.
As an option, it is possible to make use of the (unfortunately very incomplete) provisions of the double taxation treaty between Switzerland and the USA in the area of estate inheritance tax (DTA) dating from 1951. Based on the DTA, the US grants a tax exemption corresponding to the ratio of the US situs assets as compared to the total estate, in relation to the (high) tax-free amount of currently USD 5'430'000.--. This means that in order to benefit from the tax exemption under the DTA, the Swiss heirs are obliged to disclose the entire worldwide estate to the IRS. Depending on the amount of the discount resulting from the US situs assets, this leads to a higher tax reduction compared to the first taxation method.
Total value of the estate:
Value of US situs assets:
Percentage share of US situs assets:
Pro rata tax allowance on US situs assets (10%):
Difference between US situs assets
(700'000.--) and actual tax-free amount (543'000.--):
The American inheritance tax is therefore only levied on an amount of USD 157,000.--. However, if the Swiss heirs choose the first taxable manner and do not disclose the entire worldwide estate, the IRS only grants an allowance of USD 60,000.--. The American inheritance tax would then be owed on an amount of USD 640,000.--.
April 24th, 2018 – Cross-border Inheritance Cases - Revision of the Private International Law Act
On 14 February 2018, the Federal Council invited comments from the interested parties and the public at large on the revision of the PILA in the field of inheritance law.
The Federal Council's action is welcome. Particularly in the area of international jurisdiction, the PILA has weaknesses that may be at least partially remedied with the revision.
In the field of cross-border inheritance law, a glance at the map is sufficient to recognize that Swiss citizens often have to face questions regarding the inheritance laws of EU member states. EU member states (with the exception of Denmark, Ireland and the United Kingdom) have enacted Regulation (EU) No. 650/2012 (EU Succession Regulation). The EU regulation on inheritance law provides rules for the harmonisation and thus a legally clear definition of jurisdiction in cross-border inheritance cases within the EU.
It is clear in inheritance cases with cross-border aspects that conflicts of jurisdiction and conflicting decisions regularly arise between the respective EU member state and Switzerland.
In Switzerland, jurisdiction and applicable law are governed by the PILA. The Federal Council is now using the unification of laws within the EU to adapt the PILA's rules on inheritance law to certain provisions of the EU Succession Regulation. From a Swiss view, it is now possible to create legal certainty in the area of international inheritance law by taking only one step, without the need to introduce individual regulations that are specifically tailored to the EU member states.
It aims to reduce conflicts of jurisdiction and conflicting decisions between EU member states and Switzerland and thus creates legal and planning certainty for Swiss citizens with regard to other EU countries - whether due to their last ordinary stay or assets located in the EU.
According to the Federal Council's invitation, a number of provisions of the PILA's 6th chapter will be amended. Their selection takes into account mandatory Swiss regulation, the need to update as well as the content of the corresponding solution of the EU Succession Regulation.
For Swiss citizens, this would have the following practical effects if the revised PILA came into force:
Foreign nationals residing in Switzerland may subject their property located in their home country or the entire estate to the jurisdiction and law of their home country.
This possibility also applies to Swiss citizens with habitual residence or domicile abroad.
The corresponding nationality only has to exist at the time of the choice of law. This also applies to wills. The subsequent loss of nationality does not harm the choice of law.
In summary, a targeted coordination of mutual competences is achieved by amending the rules of competence and recognition and by harmonizing the applicable law.
Finally, the revision also includes supplemental and clarification requirements that have accumulated since the PILA's entry into force in 1989.
March 1st, 2018 – Lower court advance payments planned
If going to court becomes unavoidable, for example for the execution of a division of an estate, the plaintiff must advance the expected court costs.
A conciliation procedure must take place before the actual court proceedings. These costs must also be advanced by the plaintiff. The fees for the conciliation procedure vary greatly from canton to canton: in the Canton of Basel-Landschaft (BL) they amount to a maximum of CHF 1,000, irrespective of the amount in dispute. In the Canton of Basel-Stadt (BS), the arbitration fee depends on the amount in dispute and amounts to a maximum of CHF 10,000.
As a rule, the costs of the actual legal proceedings are based on the amount in dispute. Pursuant to the applicable law, the plaintiff is obliged to advance the entire probable court fee when submitting the statement of claim. For an amount in dispute of CHF 500,000, for example, a court fee of CHF 20,000 is to be expected in the Cantons of BS and BL.
This legal situation is unsatisfactory and is criticised, especially since trial must not be allowed to degenerate into a privilege. At the federal level, efforts are now underway to facilitate access to the court; a motion to this effect was supported by parliamentarians from almost all parties.
According to the competent department, there is a revision plan, according to which the advance payment of court fees shall be limited to 50 percent of the presumed court costs. The situation of the party winning the case is also to be improved with regard to the collection risk in court costs. At present, the advance payment of costs remains with the court even if the plaintiff wins, especially as this finances the court costs; the successful plaintiff must demand the advance payment of costs from the opponent and thus bears the default risk.
These efforts and developments are to be welcomed, even though a solution to the central problem - the generally high process costs - has yet to be found.
January 26th, 2018 – Survey Reports: Expert Opinions Or Mere Allegations?
If a transport damage occurs during a transport, the commissioning of a loss adjuster with the assessment of the damage and a first survey forms part of a thorough claims handling process. The surveyors are usually mandated by insurance companies or claims handlers. In practice, it is almost unseen these days that transport damages are handled without a survey report.
In a case recently brought before the Commercial Court of the Canton of Aargau, one party argued that a survey report was nothing more than a mere party allegation, while the other party wanted the survey report to be admitted as an expert opinion and thus as formal evidence.
The Federal Supreme Court would now have had the opportunity to clarify this matter. Unfortunately, however, many questions remain unanswered. The Federal Supreme Court has ruled that a survey report is not an expert opinion within the meaning of Art. 183 ZPO. However, the Federal Supreme Court did not confirm that a survey report is indeed just an allegation raised by a party. The uncertainty regarding the nature of a survey report therefore remains, which is especially unsatisfactory given the central role of these reports in practice. Insurance companies and claims handlers would be well advised not to mandate survey reports unilaterally in the future. For the time being, it is rather recommended that all parties involved in a transport shall be invited to participate in one way or the other. As long as this general condition is fulfilled, it should also be possible in the future for courts to take appropriate account of such survey reports within their right of free assessment of evidence. Of course, it is always assumed that the quality of the report is adequate and that the report will stand up to closer scrutiny.
22. November 2017 – The EU Unitary Patent: A Thriller Without End?
When at the end of 2012, the European Union announced the successful conclusion of negotiations on the EU Unitary Patent, most observers expected that the first applications for these novel patents would be filed from around 2015 onwards. The EU Unitary Patent would have covered all participating EU Member States for a relatively attractive price. In addition, suits against infringers of such Unitary Patents could have been brought centrally in one single place, namely the newly established, decentralized Unified Patent Court with its Central Division located in Paris and a Court of Appeal in Luxembourg.
Since then, certain weaknesses of the legal construction of the EU patent system have shown themselves. The system consists of three pillars, two of which are directly applicable EU laws that regulate the substantive patent law of the EU. The third pillar forms the basis for the organization, jurisdiction and procedure of the Unified Patent Court. Since the EU is not competent in this area, an international treaty requiring ratification by the participating Member States had to be concluded. In order for this «Agreement on a Unified Patent Court» to enter into force, it must be ratified by at least thirteen participating EU Member States. Due to their importance in the patent sector, this figure must include Germany, France and the United Kingdom. The earliest possible entry into force was scheduled for 1 January 2014.
While a Preparatory Committee was rapidly set up to begin work on the court’s organization, the Brexit vote on 23 June 2016 put a first big question mark over the enterprise. After the vote, the British government has always stressed that the European Court of Justice’s («ECJ») jurisdiction for the United Kingdom would end. As the ECJ in the Unitary Patent System is the last instance to monitor the Unified Patent Court’s decisions, it was assued that the United Kingdom would not ratify the agreement. However, since the United Kingdom’s ratification is necessary for the agreement to enter into force, there was a tangible feeling of insecurity over the fate of the EU Patent System – until the British declared in November 2016 that they would ratifiy the agreement before leaving the EU. Even though it remains unclear how the Unitary Patent System, which is reserved for EU Member States, is supposed to function with a non-EU Member State that in addition refuses to recognise the decisions of the final review body, preparations continued. In January 2017, the Preparatory Committee announced that the Unified Patent Court could start work at the end of 2017.
Perhaps this declaration challenged fate, because in June 2017, it became known that a constitutional complaint, combined with a request for an interim injunction, had been filed with the German Constitutional Court against the German Parliament’s ratification law regarding the Unified Patent Court Agreement. The court then requested the German Federal President to suspend his signing of the law, because the constitutional appeal did not from the outset appear «devoid of any chance of success». It is not possible to predict with certainty how long this further delay will last, because the content of the constitutional complaint remains unknown. German patent lawyers speculate that it could concern judicial procedure issues in the Unitary Patent System, in particular the application phase before the European Patent Office. The only certain thing is that the Preparatory Committee’s optimistic announcement has become moot: In June 2017, without naming a timeframe – it announced that the Unified Patent Court would not start work in 2017.
In view of this to and fro, the interested spectator will hesitate to make a prognosis about further events. One thing appears certain however: Suspense is still guaranteed. We will be happy to keep you informed about further developments and to answer any questions you may have.
Daniel Plüss, LL.M.
Dr. Dr. Fabian Leimgruber, LL.M.
28. September 2017 – Commentary on the Basel City Tax Law
The commentary on the Tax Law of the Canton of Basel City, authored by Dr. Emanuel Grüninger and Dr. Walter Studer, dates back to 1970. Since then, no further publications similarly focusing on the Basel City Tax Law have taken place. This differs from the situation in other Cantons such as Aargovia, Berne oder Zurich.
In view of the economic importance of our Canton, a team of authors has decided to respond to this evident deficit. With the support of publishers Helbing Lichtenhahn and the collaboration of numerous authors, the up-to-date commentary on the Basel City Tax Law is to be published in mid-2018. The preparations are already well advanced. It is likely that a supplementary volume will be published if a revised or new version of the Swiss «Corporate Tax Reform III» is adopted.
In parallel to this project, a commentary on the Basel City «Real Estate Transfer Tax» («Handänderungssteuer») will be published. Among its authors are two members of ThomannFischer, Dr. Christian Hochstrasser and Dr. Markus W. Stadlin, the latter of whom is the Presiding Judge of the Basel City Tax Appeals Commission. The undertaking aims to complement the well known thesis of Dr. Christian Schöniger from 1992, which unfortunately is based on earlier legislation. The new commentary will provide comments on the legislation in force and the legal developments that have taken place since the mentioned thesis.
21. August 2017 – ThomannFischer’s new homepage
We are pleased to welcome you on ThomannFischer’s new homepage. The accessible and contemporarily designed web presence is now also accessible in high quality by tablets and smartphones. Important information such as fact sheets and access plans may be downladed and forwarded as PDFs. In the news column, we will regularly provide you with insights into developments and the latest news in the fields of law that we are active in. We hope you enjoy exploring our website!