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ECHR: A concise analysis on the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

On the 9th of April 2024, the European Court of Human Rights condemned the Swiss Government for not implementing efficient climate change policies and for violating the right to life.

The applicant of this case was a Swiss association of elderly women, between the age of 78 and 89, whom since 2016 fought for the prevention of climate changes. The applicants complained about the health problems caused by the global warming and the effects on their health conditions especially during heatwaves.

After exhausting all the domestic remedies in Switzerland, the applicants brought the case before the European Court of Human Rights in Strasbourg and the charges against Switzerland were on Article 2 (right to life), Article 6 (right to a fair trial), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy), and the criteria sets on Article 34 (victim status). The Court held that there was a violation of Article 8 and Article 6 § 1 of the Convention.

In Article 8 the Swiss authorities failed to comply with its duties, also known as positive obligations, to implement measures to reduce the effects of climate change and as such failed to meet its greenhouse emission reduction target; while in Article 6 § 1 there is a lack of available avenues by the Swiss national law where to bring complaints to a court, because before the ECHR the case was only rejected by an administrative authority and then by national courts at two levels of jurisdiction.

Whilst these two articles were found to be properly violated by Switzerland, the Grand Chamber found inadmissible the complaints against Article 2 and Article 13 for the lack of effective elements against Switzerland.

In accordance with Article 34 of the Convention, the Grand Chamber seized upon this judgement as a chance to establish new criteria concerning the victim status in climate-related cases and to prevent potential future instances of actio popularis

One could argue that the decision made by the Court on the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was too harsh on the Swiss authorities. On the same day other two cases, Carême v. France and Duarte Agostinho and Others v. Portugal, having the same charges on climate change were found inadmissible.

Concerning the case against France, the complaints made by the applicant were not accepted because the same applicant does not live anymore in the place where he is seeking remedies, and it is considered inadmissible under aArticle 34.

As regards of the complaints against Portugal, the applicants failed to exhaust all domestic remedies, and therefore it is against the applicability criteria sets by the Convention.

For certain the decision made by the Court against Switzerland has brought many criticisms and doubts on the fairness of the judgement, but it has marked the Court’s first ruling on a climate case and enriching so the jurisprudence of the European Court of Human Rights.

Thomas AGUIAR, Ingrid POUWER, Marie-Lise SALAME, Chiara SOUVLAKIS, Nadia DJENNI

Moving to Greece/EU without damaging the Swiss wallet: a look at some of the important fine print

1. Coordination between Switzerland and the European Union

The legal framework governing relations between Switzerland and the EU is based on a bilateral agreement: the Agreement of June 21, 1999 between the Swiss Confederation, of the one part, and the European Community and its Member States, of the other, on the free movement of persons (hereinafter "ALCP").

Annex II of this agreement refers to European Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, and to European Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004.

ALCP coordination rules must be applied as a matter of priority, even if they run against to European rules (Métral Jean/Moser-Szeless Margit, L'accord sur la libre circulation des personnes: coordination des systèmes de sécurité sociale et jurisprudence du Tribunal fédéral (II), REAS 2007, p. 169).

These regulations strengthen cooperation between the social security institutions of the EU Member States and Switzerland, particularly where old-age institutions are concerned.

In particular, if you contribute in more than one country, each pays a pension or lump-sum benefit corresponding to the assets accumulated for work carried out in its own country. It is not possible to transfer occupational assets between pension funds located in different countries. Therefore, if you have contributed in several countries, you will receive an annuity or lump-sum payment from each of them, depending on the applicable conditions.

2. AVS/AHV pension (1st pillar)

In Switzerland, access to ordinary first-pillar benefits is conditional on reaching the age of 65 (art. 21 al. 1 LAVS).

In addition to ordinary benefits, it is possible to opt for early retirement one or two years before ordinary retirement age, i.e. at 63 or 64. There are no specific grounds for early retirement (poor health, etc.), and only the age requirement (art. 40 al. 1 LAVS) and any purchase of regulatory benefits (art. 1b OPP 2) are relevant in determining this entitlement.

With regard to foreign workers, art. 18 para. 2 LAVS specifies that they and their survivors who are not Swiss nationals are only entitled to a pension as long as they have their domicile and habitual residence in Switzerland.  The notion of domicile refers to that of art. 23 to 26 of the Swiss Civil Code (art. 13 al. 1 LPGA), and that of habitual residence (art. 13 al. 2 LPGA) "corresponds to the place where the person concerned stays for a certain period of time, even if the duration of this stay is limited from the outset" (ATF 141 V 530, consid. 5.1. and references cited). Consequently, a person without Swiss nationality who permanently leaves Switzerland to settle abroad loses his or her entitlement to a Swiss AVS/AHV pension.

3. Professional pension provisions (2nd pillar)

In the case of professional pension provision (2nd pillar), entitlement to retirement benefits begins at the age of 65 (art. 13 para. 1 BVG).

The income capitalized over the years in the occupational pension account may be paid out in the form of an annuity (monthly payment) or a single lump-sum payment from the total occupational pension assets. It is important to note that an annuity can only be paid out once a certain amount of contributions has been made, otherwise only a single lump-sum payment can be made. To find out how much you can expect to receive, contact your pension fund.

Another important note: it is not possible to make a lump-sum withdrawal before retirement or early retirement age when leaving Switzerland permanently to settle in an EU/EFTA country (Vuilleumier Frédéric, Prévoyance professionnelle et aspects internationaux - partie II, in Droit fiscal et assurances sociales, en particulier la prévoyance professionnelle et les aspects transfrontaliers [de Vries Reilingh Daniel, ed. Zurich (Schulthess) 2016, p. 159 ff, p. 178; Office fédéral des assurances sociales OFAS, Prévoyance professionnelle (2e pilier), Prestation de libre passage : n'oubliez pas vos actifs et prévoyances).

4. What happens in the event of a spouse's death?

The surviving spouse is entitled to a widower's pension under the following cumulative conditions:

  • · If the surviving spouse has at least one dependent child or has reached the age of 45 (art. 19 al. 1 let. a LPP);
  • · If the surviving spouse has been married to the deceased for at least five years (art. 19 al. 1 let. b BVG/LPP);
  • · If the deceased had made sufficient contributions (to the first pillar);
  • · If the deceased's pension assets have not previously been withdrawn as a lump sum.

Survivor's pensions (in this case, the widower's pension) are paid in the EU under the same conditions as in Switzerland. However, they cannot be paid at the same time as an old-age pension in Switzerland. When two pensions (such as a widower's pension and an AHV/AVS pension) compete, the higher of the two is paid (art. 24b LAVS). If the surviving spouse has contributed more than the deceased spouse, he or she is likely to receive only his or her old-age pension, and vice versa.

Similarly, some countries reduce their benefits when foreign pensions are combined with national pensions (art. 10 of European Regulation (EC) no. 987/2009).

5. Choosing between an annuity and a lump-sum payment, and methods of payment abroad

Depending on your state of health, years of contributions, spouse's needs, life plans, etc., you will need to assess whether it is preferable to opt for an annuity paid over the long term (generally until the beneficiary's death) or a withdrawal of all contributions (i.e. a lump-sum payment).

A lump-sum payment in the event of early retirement will only be partial: a sum indicated on the insurance certificate must remain in the vested benefits account pending retirement age or death. This amount varies from one pension fund to the other.

 

6. Conclusion

Swiss social security is available throughout Europe to Swiss nationals, but to foreigners only in Switzerland. Note also that health is not a relevant factor when it comes to early retirement. In terms of crucial choices, a lump-sum payment is preferable when health is not at its best in order to facilitate access to pension assets for the surviving spouse, but an annuity is preferable when the comfort of a monthly payment is required.

Please note that above considerations apply in principle to all EU/EFTA countries.

 

Eurolegal Team : Auriane PHILIPPE, Thomas AGUIAR, Ilona CADOUX, Marie CARRILLO

 

Application to the ECtHR: the right to life undermined

In 2018, while taking a leisurely stroll along a pavement, a mother and her 38-year-old daughter were hit by a driver who had lost control of his car. The daughter died instantly and the mother was seriously injured. The Swiss authorities did not find the driver guilty on the grounds that it was not possible to determine exactly the circumstances of the blackout he was claiming. The Swiss criminal court therefore acquitted him of any guilt and of any penalty.

How can homicide, even unintentional homicide, go unpunished? This is the question we put to the judges of the European Court of Human Rights (hereinafter: ECtHR), invoking Article 2 of the Convention, which stipulates that "everyone's right to life shall be protected by law", as well as Article 6, which requires guarantees for the conduct of the trial.

After appealing to all the Swiss courts, the applicant (the victim's mother) turned to the ECtHR to obtain justice for herself and her daughter (who died at the scene), and following the accident that had left her permanently disabled. She raised a number of complaints against our courts. In short, according to the claimant, the Swiss courts have failed to fulfil their obligation under Article 2 of the European Convention on Human Rights (ECHR). The latter requires the establishment of an effective and independent judicial system making it possible to establish the circumstances of the death and, where appropriate, to hold those responsible to account for their actions. This positive obligation under the same Article must be interpreted as applying in the context of any activity, public or otherwise, in which the right to life may be at stake (Ciechońska v. Poland, 2011, § 69; Banel v. Lithuania, 2013, § 68). In both these cases, the ECtHR accepted that the national courts had not done everything possible to ensure that unjustified violations of the right to life did not go unpunished. Such conduct would prevent any appearance of tolerance of unlawful acts and maintain public confidence (Oruk v. Turkey, 2014, §46).

In our case, the acquittal of the driver could appear to undermine the deterrent role of a judicial system in preventing violations of the right to life.

The first grievance, raised by the applicant, is based on the failure of the Swiss courts to take account of the evidence that could lead to the establishment of the circumstances of the death and, where appropriate, to hold those responsible to account for their actions, as well as their obligation to ensure the effective operation of a certain regulatory framework. In this case, the Swiss courts were content to rely on two medical expert reports, even though there was a third that supported a certain degree of responsibility on the part of the driver. The attribution of liability could not be accepted on the basis of the results of the third expert report, which suggested that the driver had fallen asleep during the accident.

The second grievance is based on the inadequate internal regulatory framework for road traffic. The latter is not sufficiently dissuasive and rigorous to ensure the effective prevention of unlawful acts. The Swiss legal system does not provide for a ban on driving under certain conditions. Moreover, the applicant complains that the murder in this case has gone unpunished. Neither penalties nor measures had been taken against the perpetrator for taking medication. The effects of these drugs, however, included a significant reduction in cognitive performance and drowsiness. Although the driver represented a potential danger to road safety, it was considered that he had not breached his duty of care. However, Swiss case law assumes that the alleged offender was negligent if he failed to take the care and make the effort that could be expected of him to comply with his duties under the rules of law enacted to ensure safety and prevent accidents (Federal Court ruling of 02.08.2016, 6B 965/2014, recital 3).

The final complaint relates to Article 6 of the Convention, which concerns "the right to a fair hearing by an impartial and independent tribunal". The applicant complained that the domestic courts had not accepted new assessments of the body of evidence provided in one of the defendant's medical reports. As a result, her defence was placed at a disadvantage as regards the examination of evidence established by medical reports. The rules on the admissibility of expert opinions or evidence must not deprive the defence of the possibility of challenging them effectively, in particular by submitting or obtaining other opinions and reports. The case-law concerning Article 6 § 1 ECHR regards as a violation the refusal to authorise an alternative expert examination of material evidence (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, §§ 38 et seq., 5 April 2007).

Nulla poena sine lege, as Article 7 of the ECHR states. In Switzerland, the absence of a provision condemning certain conduct does not mean that the same conduct should go unpunished. In this case, article 117 of the Swiss Criminal Code specifically criminalises homicide. The offence is certainly serious and there is no reason why it should go unpunished.

As a last resort, the mother appealed to the ECtHR to determine whether the driver was criminally liable.

Pending the decision of the Strasbourg judges, it is to be hoped that this case before the ECtHR will lead to clarification of the allocation of penalties to acts that should be punishable under criminal law.

Campos Kelly, Jayo Paul, Mariotti Maeva and Pelletier Eloïse

Building Bridges: The antechamber to COP31 in Switzerland

By Patrick Odier. Frmr Senior Managing Partner of Lombard Odier Group

Hosting the COP in 2026 would be a real project for Switzerland and the Swiss. It would also be an opportunity to innovate by proposing a more reasonable format adapted to environmental constraints and by better targeting the agenda on subjects in which Switzerland has particular expertise.

Concrete commitments for more impact

The 3rd edition of Building Bridges showed the way forward. Indeed, this international event gathered in Switzerland during four days, from October 3 to 6, 2022, more than 2000 participants from 51 countries and nearly 16,000 people connected to follow or participate in the 68 events of the program.

In fact, Building Bridges could represent a step in the preparation of a Swiss bid for the COP in 2026. Taking advantage of Switzerland's unique ecosystem, Building Bridges has brilliantly succeeded, with the support of our federal authorities, in bringing together actors from finance, international organizations, universities, NGOs, the public and private sectors and civil society towards a common sustainable goal.

Beyond good intentions, all these actors have mobilized to make concrete commitments to accelerate the sustainable transition. Thus, several initiatives already announced during the second edition of Building Bridges in 2021 have been launched: notably the "Swiss climate scores", adopted by the Federal Council in June 2022. They do not measure a company's ESG criteria, but its alignment with the carbon emission reduction target set by the Paris Agreements. In addition, many financial players are in the process of transforming their clients' portfolios according to their sensitivity to these sustainable issues.

Finance: an important lever to accelerate the transition

This year, two new organizations dedicated to solutions to save nature were announced at Building Bridges: Nature- Finance and Innovante for Finance. But we need to do more in terms of education, common language, political will, and investment to make a bigger impact faster.

Despite these real advances, progress is indeed not fast enough. In particular, the systems for rating companies to sort out and direct capital towards the most virtuous ones must be clearer and based on scientific and transparent foundations. But let's make no mistake, finance is not all-powerful. It can accompany, help and stimulate companies in their transition to a more sustainable economy, but it cannot replace industrial activity or government legislation. Let's not ask finance to say what is allowed or forbidden, nor to judge whether it is reasonable or not to use snow cannons at an altitude of 2000 meters. These choices must be made, argued and debated by the competent authorities.

Finance cannot and should not be the sole bearer of what are societal choices. Indeed, the financial sector desperately needs the leadership and ambition of policy makers and the real economy to have more impact. One of the challenges of COP27, which opens in early November in Egypt, will be the ability of political leaders to resist the temptation of short-term political gain, i.e., to focus on the political, economic and environmental benefits that could be reaped in years, not weeks.

Collective unpreparedness for extreme weather events, as well as unprecedented global anxiety about energy, food and commodity security, argue for a radical leap forward in the race to realign our economic system with the limits of our planet.

Aiming higher

The current economic growth model, with its significant collateral damage, must be rethought with the help of financial actors and all stakeholders. This is what Building Bridges is all about and it shows that this is possible. But Switzerland can and must aim higher, in the momentum of this event which has now proven its relevance.

Our country enjoys an unparalleled reputation in multilateralism, thanks to its diplomatic agility, its UN heritage and its neutrality. What has been accomplished in Switzerland in the service of humanitarian action and diplomacy is a universal reference. By hosting the COP in 2026, Switzerland would be in its place, at the center of the dialogue, to help ensure the necessary sustainable transition. ■

 

Source: Le temps.24.10.2022 www.letemps.ch Reprinted with permission of the author Patrick Odier

Acquisition of a holiday home in Switzerland by foreigners or non residents

I.   Introduction

The Federal Act on the Acquisition of Real Estate by Persons Abroad (LFAIE; SR 211.412.41), also known as the Lex Koller, is a law which aims to limit the acquisition of real estate by persons domiciled outside the country in order to "prevent foreign ownership of Swiss soil".

This law varies according to the type of residence permit, the country of origin and the place of residence. Its operation is therefore complex. Moreover, the law changes according to the type of use one wants to make of it: secondary residence, main residence or holiday home. Foreign investors are not entitled to acquire residential property, but are still allowed to invest in commercial, craft and subsidised property.

The acquisition of a property subject to the authorisation regime requires the granting of an authorisation by the competent cantonal authority (art. 2, para. 1, LFAIE). Thus, the application of this law is first and foremost the responsibility of the canton in whose territory the property is located. It is the competent authority designated by the canton in question that decides whether a legal act is subject to authorisation and whether authorisation should be granted (art. 15, para. 1, letter a, FL). Authorisation is granted only on the grounds set out in the FL and, where applicable, in cantonal law (Art. 3, 8 and 9 FL).

II.  Conditions

In principle, three cumulative conditions must be met for a legal transaction to be subject to the authorisation regime:

- The purchaser must be a person abroad within the meaning of the FL (subjective liability).

- The object of the legal transaction must concern a property that is subject to taxation under the FL (objective taxation according to the use of the property).

- The acquired right must be assimilated to an acquisition of real estate under the FL (objective liability according to the type of right).

Even if these three conditions are fulfilled, further exceptions to the obligation to obtain authorisation in accordance with Art. 7 FL may apply.

III.   Persons abroad

The Lex Koller defines persons abroad in art. 5 para. 1 let. a and abis FL (supplemented by art. 2 OFL). These are foreigners domiciled abroad and foreigners domiciled in Switzerland, but who are not nationals of a member state of the European Community (EC) or the European Free Trade Association (EFTA), nor do they possess a valid C settlement permit.

This regime also applies to companies with headquarters abroad even if they are Swiss-owned and considered to be Swiss from an economic point of view.

IV. Holiday accommodation

A foreigner subject to authorisation may acquire a flat in an aparthotel or holiday home (Art. 9, paras. 2 and 3, and Art. 10 FL). The location of the accommodation must be designated as a tourist area by the canton in question. Each authorisation is subject to the annual quota allocated by the Confederation to the canton for holiday homes and flats in an aparthotel (art. 11 FL, art. 9 OFL and Annex 1 OFL), although there is an exception if the authorisation for the acquisition of this home or flat had already been obtained by the seller at the time.

Quota units may also be transferred to non-taxable persons to enable the sale of dwellings to foreign nationals (so-called "de principe" authorisations). Consequently, individual purchases by foreign nationals still require authorisation, but no longer have to be counted in the quota. Cantons and tourist municipalities may impose restrictions. For example, they may decide to block a location completely, or allow the purchase of multi-storey properties and only up to a certain quota, or limit the annual number of permits, or restrict the purchase of dwellings that are already in foreign hands (Art. 13 FL).

The following cantons allow the purchase of a holiday home or flat in an aparthotel: Appenzell Ausserrhoden, Bern, Fribourg, Glarus, Graubünden, Jura, Lucerne, Neuchâtel, Nidwalden, Obwalden, St. Gallen, Schaffhausen (only for flats in an aparthotel), Schwyz, Ticino, Uri, Valais and Vaud.

Holiday homes cannot be rented out on a year-round basis, but can only be rented out on a short-term basis. The purchaser must be able to use the accommodation himself in accordance with the purpose for which he has applied. The flats in a hotel apartment must be left at the disposal of the hotelier so that he can operate them as a hotel, especially during the high season (Art. 10, letter b, OAIE).

According to Art. 8 OAIE, holiday homes can only be acquired by natural persons directly in their own name; indirect acquisition of a home through a legal entity is not possible.

In principle, according to Art. 10, paras. 2 and 3, OAIE, the net floor area of a property may not exceed 200 m2 and the plot area 1,000 m2 (Art. 10, paras. 2 and 3, OAIE). In accordance with established practice, in the event of additional need, up to 250 m2 of net floor area and 1,500 m2 of plot area may be permitted, and in exceptional cases, higher excesses.

Mizgin CADIR, Alain AGUPYAN & Cassandra JOCHUM

 

Illegal transfer of children from Greece to Switzerland: Swiss Supreme Court orders return to Greece

The year 2022 saw an important legal victory for ELC, our law firm.
On September 28, 2022, the Swiss Supreme Court (the Federal Court) issued a decision that put an end to a case of unlawful removal of children from Greece to Switzerland for seven months. Our Law firm, representing the father of the children and requesting their return, won the case at all levels.

The phenomenon of child abduction has grown in recent decades for several reasons, including globalization, the evolution of family law and the increase in binational couples.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the "Hague Convention") is the main legal instrument in this field, as it is currently binding on 100 States (for more information, we invite you to read our article of 1 February 2022)
The most controversial issue before the cantonal courts was whether the mother, according to Greek law, could move to Switzerland with the children without the father's permission, since she had temporary sole custody of the children and the couple had been separated for years. The mother, on the other hand, obviously argued that the father's consent to the move abroad was not necessary because of her sole custody of the children.

The Swiss judge did not have to decide on the matter by applying Greek law, since on May 10, 2022 the Court of First Instance of Athens ruled that the move was illegal. Indeed, art. 14 THC 80 allows the authorities of the requested State to rely directly on a judicial or administrative decision formally recognized in the State of the child's habitual residence in order to determine the existence of an unlawful removal in the sense of art. 3 THC 80.
The Swiss judicial authority thus had to analyze the exceptions to return provided for in art. 13 THC 80, which were lacking in this case, before ordering the immediate return of the children to Greece, in accordance with art. 12 THC 80.
The decision of the cantonal court confirms the rigidity of THC 80, which was rightly designed to protect children from the harmful consequences of abduction by ensuring, among other things, that existing rights of custody and access in a contracting state are effectively respected. In this case, neither the rapid integration of the children in Switzerland nor their preference for this country could prevent their return to their country of habitual residence, Greece, since the law of that country had been violated.
In her appeal to the Federal Court, the children's mother mainly contested the fact that the cantonal court based its decision (in the sense of art. 14 CLaH 80) on the Greek decision of May 10, 2022, which she claimed was null and void.
The Swiss Supreme Court's response to this complaint was clear: art. 14 THA 80 serves the principle of expediency that should apply to this type of case; its purpose is not to recognize a foreign decision in advance or to examine its conformity. Therefore, the cantonal authority had not violated federal law.
Moreover, the Federal Court confirmed its case law not only with regard to the restrictive application of the exceptions to return (art. 13 CLaH 80) but also with regard to the burden of proof and the requirement to state reasons (art. 42 para. 2 FSCA).
In the present case, the complaints raised by the appellant were of a purely appellatory nature or expressed her point of view, but did not show precisely in what way the cantonal court had violated the law.
The appeal was therefore dismissed.
The children, represented by a lawyer of their choice and not by the curator who had been appointed in the cantonal proceedings, also appealed to the Federal Court.
However, the appeal was declared inadmissible. Indeed, lacking the capacity of discernment regarding the dispute between the parents, which had been determined by the cantonal court, the appellants could not free themselves from the services of their curator in order to mandate a lawyer of their choice.
After seven months of legal battle, for a dispute which proved to be very delicate not only for its nature but also for the tense relations between the parties, we welcomed the decision of the Federal Court. Justice has been rendered for a father whose rights were violated!

Carmela Telemaco
Constantin Kokkinos

REVISION OF THE SWISS INHERITANCE LAW 2023

Following parliamentary debate, a new law of succession will come into effect in 2023 in Switzerland. The new legal provisions will apply to all estates of persons who die on or after January 1, 2023.

Today, the system provides, among other things, that the legal reserve allocated to a descendant is ¾ of his or her inheritance right; that of the surviving parents is ½ each; and the legal reserve of the surviving spouse or registered partner is 1/2 (art. 471 CC).

The major changes planned for 2023 are in the legal allocation of the hereditary reserves. Indeed, the reserve share of the descendants is reduced to half of the legal share (½), thus ¼ of the estate; and the reserve share of the surviving parents will be eliminated.

However, the decedent's legal partner will still be awarded ½ of the reserve. In addition, there is still no right to the estate for the cohabitant.

This new distribution of legal shares gives the testator greater flexibility in the distribution of his or her estate. Now, half of the total estate can be distributed freely by the testator, instead of ⅜ of the estate previously.

Implications for usufruct:  

Spouses/registered partners maintain the possibility of providing for the granting of a usufruct on the entire share of the estate devolving to the joint children. However, they can extend this advantage granted to the partner; indeed, they can now attribute half of the estate in full ownership to the spouse/registered partner (i.e. the available portion of ½ of the estate, instead of the ¼ currently) and the other half in usufruct (½ instead of the ¾ currently).

However, in the event that the spouse / registered partner remarries or enters into a new registered partnership, he/she loses the usufruct on the children's inheritance reserve. The latter become full owners of their share of the estate, which is no longer subject to a usufruct.

Couple involved in divorce proceedings:

As soon as divorce proceedings or the dissolution of a registered partnership are initiated, the protection of the inheritance reserve will cease, even before the divorce or registered partnership is finally pronounced.

For this purpose, it is sufficient that:

- a divorce proceeding has been initiated by joint petition, or

- the spouses have lived separately for at least two years, and

- one of the spouses dies, and

- that this deprivation of inheritance is provided for in the deceased's will.

Finally, the surviving spouse will legally lose:

- his or her reserved portion of the estate

- his or her rights resulting from dispositions of property upon death

- the gifts provided for in the marriage contract.

Inter vivos gifts:

Whereas the current law provides that a gift made by the testator after the conclusion of a contract of succession may be voidable only if it contravenes the provisions of the contract of succession or if there is an intention to prejudice the instituted heirs, the new law of 2023 will allow the contracting party to the contract of succession to object to dispositions upon death or liberalities between living persons without the need to prove that they cause prejudice to the contracting party.

This brings us closer to a restrictive practice in the freedom of the testator to dispose of his property. 

Furthermore, the reform modifies the order in which reductions of gifts can be made in the event of a violation of the legal reserve. Until the reserve is reconstituted, the order of reduction is as follows:

1.     Acquisitions on account of death resulting from the law

2.     Gifts in lieu of death

3.     Gifts between living persons

Clarity for Pillar 3a:

Pillar 3A pension assets will now be included in the calculation of reserves (for their surrender value) and will not be included in the estate.

This provision, which is already in force but vague at present, will be expressly written and clarified in the text of the law.

In conclusion, we are moving towards a modernization of the Swiss inheritance law. The Swiss Confederation fills its gaps in the field of inheritance law by means of standards that are already applicable in many other European countries.

Jacques DEGORS & Ilona ROUSSEL

Sources : ww.ubs.com / www.bdo.ch / arpr.ch / www.mll-news.com 

COMPENSATION OF VICTIMS' RELATIVES IN SWISS LAW, THE DIFFICULT QUANTIFICATION OF A HUMAN LOSS

MORAL TORT

In Switzerland, Article 47 of the Federal Act supplementing the Swiss Civil Code provides that "The judge may, taking into account particular circumstances, award the victim of bodily injury or, in the case of death, the family, fair compensation as moral reparation.

It appears from the practice of Swiss courts that this moral damage is assessed according to a two-stage process.

The Swiss courts therefore analyse successively :

 the objective seriousness of your injury

the elements specific to the case in question

An objective amount is thus allocated as an indication in a first phase and in a second phase, all the circumstances of the case are taken into account to adjust the basic amount, this last phase being more important in serious cases.

Phase 1: In order to calculate the basic amount to which a victim's next of kin may be entitled, the maximum insured earnings at the time of death, i.e. CHF 148,200 under the LAA (Compulsory Accident Insurance Act), must be taken into account.

https://www.swissriskcare.ch/sites/default/files/src_chiffres_cles_2022.pdf

When calculating such an amount, the aim of providing the injured party with a certain feeling of enrichment should only serve as an overall criterion, applicable in the same way to all injured parties, and making it possible to set the range within which the total compensation should be situated.

Thus, the Swiss courts have based themselves on the figures used in the literature, in particular the figures used by Hütte, which are most probably the closest to the current case law. A basic compensation of 35% of the share of earnings insured by the compulsory accident insurance is awarded for the death of a child (Guyaz Alexandre, le tort moral en cas d'accident:une mise à jour, SJ 2013 II p. 215 ss, 250 s.)

Therefore, in the case of a human death following a road accident, a parent would be awarded CHF 52,000 (i.e. 35% of CHF 148,200) as basic moral compensation.

Phase 2: Using the example of parents who have lost their child, the basic amount of CHF 52,000 could be increased to some extent, given the mitigating or aggravating circumstances in each particular case.

The fact of having directly witnessed the accident, the intensity of the bond between a mother and her deceased daughter, the pain caused by the loss of the child or the moral suffering resulting from the fact that no one was found guilty in the criminal proceedings, for example, are elements that may well be taken into consideration by the judges in order to increase the compensation.

However, this compensation must be fixed in a "fair" manner, thus leaving a wide margin of appreciation to the courts. As mentioned above, compensation is also assessed in comparison with similar situations and the amounts awarded in those cases.

Case law and doctrine take into account, among other things, the seriousness of the fault committed by the wrongdoer when determining the compensation. The latter should be considered only insofar as it has aggravated the claimant's psychological pain and made it even more difficult to accept the situation suffered.

In sum, there are ultimately as many grounds for awarding 100,000 francs as there are for awarding 200,000 francs or 1,000,000 francs for the same injury and it would undoubtedly be preferable for this type of decision to be taken directly by the legislator rather than left to the discretion of the judge.

ECONOMIC LOSS

Article 45 paragraph 3 of the Swiss Code of Obligations provides for damages for the loss of support resulting from the death of a loved one. It is necessary to estimate the hypothetical income that an individual would have obtained from his or her deceased loved one from the day of his or her death. In order to do this, it is necessary to examine several criteria: the amount of income, the proportion of this income that was spent on the relative, possible reductions and the duration of the support. If the support was given in kind (in the form of work, household help, care, etc.), it is possible to estimate its value, but this is more difficult to demonstrate in court.

In conclusion, when a loved one is lost, a certain category of individuals close to the deceased can claim their rights before a court to receive both compensation for the moral suffering experienced and the economic damage that follows the death.

It has been observed that the amounts awarded to relatives are small compared to what some have suffered, such as the loss of a child or parents. Only in exceptional cases has Swiss case law doubled the compensation for moral damages and prevented claims from being made for sums that are too high compared to the latter, at the risk of having claims rejected.

Today, therefore, it seems that this process is not very representative of the pain endured. The moral issue should probably be examined by the legislator in order to revalue the amounts awarded in the event of death and avoid this issue being left to the arbitrariness of a judge.

 

Jennifer Gaumann & Ambre Schindler

 

SCHOOL BULLYING: A COMPARATIVE LOOK AT CURRENT PATHWAYS

 1.    School bullying: a 21st century societal phenomenon

Bullying is generally defined as an aggressive, intentional act perpetrated by an individual or a group of individuals, repeatedly against a victim who cannot easily defend himself or herself.

More specifically, school bullying is characterized by three aspects: the repetition of a behavior, creating a relationship of domination and the existence of an intention to harm. It takes the form of aggressive behavior, whether verbal (threats, insults, lies, mockery), relational (exclusion), physical (beatings, racketeering, sexual harassment) or material (theft, damage, etc.). The effects on the young victim can be extremely harmful: dropping out of school, social isolation, anxiety, depression or somatization. In the long term, the victim of harassment can suffer significant consequences in his or her psychological and social development.

The main problem is the difficulty victims have in expressing their suffering. Therefore, fighting against school bullying requires first of all an awareness raising among students and school staff in order to avoid any lack of reactivity or minimization of the phenomenon.

2.    Different international approaches to a new form of harassment

● French law: the development of legislation criminalizing school harassment
In French law, harassment is punishable under the Penal Code (C. pén. art. 222-33-2-2). Acts of harassment in the school environment are therefore covered by this offence. The French Penal Code also criminalizes violence resulting from acts of hazing and hazing itself, incitement to suicide, as well as the dissemination of degrading images or invasion of privacy (C. pén. art. 223 ff). A right to continue one's schooling without harassment has even been enshrined in article 511-3-1 of the Education Code. However, despite the qualification of school harassment as a criminally reprehensible offence, no sanction is mentioned.
● The German case: the violation of the student's personality by the teacher
Unlike French law, German law does not directly provide for instruments to punish school harassment, but its constituent acts are nevertheless likely to be sanctioned by various provisions of the Criminal Code or by disciplinary measures.
The Oberlandesgericht noted that there is a duty of protection on the part of teachers towards pupils during school hours, as long as the latter are obliged to attend school. In the Ruling of the Oberlandesgericht Zweibrücken (Germany) of May 6, 1997, Az. 7O 1150/93), it was considered that the seriousness of the infringement justified the payment of moral damages.
● The Anglo-Saxon approach: the central role of schools
In the United States, in the absence of federal legislation aimed at specifically punishing harassment as such, including school harassment, there is some protection against acts of harassment with specific characteristics. Each state has anti-harassment laws or amendments. These laws have some common denominators, such as requiring schools to take action.
The United Kingdom also has no specific anti-bullying instruments, delegating to schools the task of protecting schoolchildren, including outside the school grounds. The imposition of sanctions in the event of reprehensible behaviour is possible without any obligation on the part of the schools in this respect, unlike in American state laws.
It can therefore be seen that, in these two examples, the school is in the front line of responsibility, whether because of the risk of action against it or the threat of administrative measures.
● Swiss law: a legal vacuum on the issue of school bullying
In Swiss law, school bullying is not subject to any specific provision. However, the doctrine generally tends to assimilate it to art. 328 of the Code of Obligations, which concretizes the protection of the employee's personality against harassment occurring in the workplace. In fact, the community bond on which this article is based also exists between students and other members of the school. It is based on the duty to attend compulsory school. A crucial distinction must be made between the obsessive dimension of harassment (or stalking) and school harassment as described above (ATF 5A_526/2009 of 5 October 2009, c. 5.3, SJ 2011 I 65). Taken separately, the acts of the schoolchildren may seem harmless, but taken as a whole, their repetitive nature is destructive for the young victims.
At the legal level, cantonal laws also provide for instruments to sanction the failure of pupils to perform their duties. Art. 115 al. 2 of the Law on Public Education of September 17, 2015 mentions that "any act of violence, in any form, committed by students in or out of school [towards teachers and fellow students] is prohibited."
In view of the different legal approaches put in place, it seems that school bullying in its legal aspect is very poorly regulated or even unknown in some legislations. Switzerland, being one of the latter, focuses its attention on making schools responsible. However, it is frequently observed that prohibitions of violence are only accompanied by light disciplinary or administrative sanctions. They are almost insufficient in a context of harassment involving vulnerable people. Thus, it is necessary to take a stand on the problem by putting in place a strict policy of prevention and adequate legal sanctions to prevent the perpetrators and bystanders of harassment from minimizing the problem.
This article does not aim to evaluate which system would be the best, but highlights the need for a legal qualification. Legislation specific to school bullying could help to better target the problem and ensure a minimum of legal security for victims.
Ambre Schindler & Jennifer Gaumann

FINALLY A TRUST IN SWITZERLAND![1]

The Federal Council is proposing, on behalf of Parliament, to introduce this new legal instrument into the Code of Obligations. At its meeting on 12 January 2022, it sent its draft for consultation.

The trust is an ancient legal institution under Anglo-Saxon law. Although not provided for in our legal system, it has been recognised in Switzerland since the entry into force, on 1 July 2007, of the Hague Convention on the Law Applicable to Trusts and their Recognition of 1 July 1985.

According to Art. 11 para. 1 of the Convention, a trust validly constituted under the applicable foreign law is recognised in the other States parties to the Convention.

Given the complexity and flexibility of this institution, which may take several forms and pursue different purposes, there is no single definition of a trust. At the international level, the Convention has proposed the following definition in Art. 2(1): "[...] the term "trust" refers to the legal relationships created - inter vivos or on death - by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.".

The trust is therefore an institution with three parties:

- the settlor, who may be a natural or legal person, is the one who transfers his property to the trustee

- the trustee is the person who formally holds the assets, who becomes the "legal owner" of them

- the beneficiaries, who for the sake of simplicity can be indicated as the economic owners of the trust property.

The trust may be constituted by inter vivos trust or by testamentary trust. It should be noted that the deed of trust is a unilateral act of the settlor, not subject to the acceptance of the trustee, and that the trust does not have legal personality, which distinguishes it from the institution of the foundation.

In Switzerland, trusts are an important asset planning instrument, particularly in the area of inheritance, to enable the transmission of assets over several generations.

In order to prevent Swiss clients from having to turn to foreign countries to set up trusts, Parliament has instructed the Federal Council, through motion 18.3383, to create the legal basis for the introduction of this institution in Swiss law.

If the trust were to be introduced in our country, it would be necessary to adapt the Code of Obligations and other federal laws, in particular tax laws, which would explicitly specify the rules to which the trust would be subject.

The consultation procedure opened by the Federal Council on 12 January 2022 will last until 30 April 2022.

For further information, please visit

https://www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-86746.html

 


[1] Inspired by the article of Stefano Rizzi: https://ambrosioecommodo.it/approfondimenti/finalmente-il-trust-svizzero-2/