The Supreme Court of the Canton of Zurich recently clarified that employers must clearly regulate the private use of work communication devices, as well as any related control mechanisms. Further, data processing such as verifying WhatsApp chat messages – even if the information is stored on a work mobile phone – must be done in accordance with the more restrictive Article 328b of the Code of Obligations.
The Federal Department of Finance recently announced that it was activating the measures adopted by the Swiss Federal Council to protect the Swiss stock exchange infrastructure in anticipation of the expiration of the stock market equivalence granted by the European Commission. Notably, the protective measures do not affect companies with registered offices in Switzerland that are listed and traded exclusively on exchanges outside Switzerland.
A key consideration for any investor or rating agency is the insolvency analysis of a securitisation transaction. In this context, the insolvency remoteness of the special purpose vehicle is a decisive element. Another important consideration are the circumstances under which a securitisation transaction may be set aside in the context of an insolvency proceeding. This article focuses on the avoidance actions set out in the federal Debt Enforcement and Bankruptcy Act.
The Federal Department of Foreign Affairs (FDFA) recently opened a consultation procedure on the Strasbourg Convention on the Limitation of Liability in Inland Navigation 2012 and its implementation (ie, an amendment to the Swiss Maritime Navigation Act). The FDFA's proposal has been welcomed and is considered a necessary step towards Switzerland ensuring a level playing field for the inland navigation industry.
This article summarises key amendments to Swiss environmental laws which either came into effect in recent months or will come into effect in the foreseeable future. Recent developments in this area affect, among other things, plant and water protection, chemicals, non-ionising radiation, energy and CO2 reduction.
The Federal Council recently adopted a plan to implement the national strategy to protect Switzerland against cyber risks until 2022 and took additional steps towards the establishment of a cybersecurity competence centre. Work is also underway to develop a cyber-defence campus and strengthen capabilities relating to information acquisition and allocation.
Under Swiss law, the acquisition of a business may be structured as a mere share deal, a mere asset deal or – according to the Merger Act – a statutory merger, demerger or bulk transfer. This article outlines the private law aspects of private statutory mergers and distinguishes between domestic and cross-border statutory mergers.
The Foreign Nationals Act has been renamed the Foreign Nationals and Integration Act, with effect from 1 January 2019. The Foreign Nationals and Integration Act has revised the earlier provisions and introduced new ones to encourage and support foreign nationals' integration into Switzerland. Further, the act now includes provisions relating to the integration of non-EU nationals in Switzerland.
Under the Cartel Act, a merger filing is generally required when the relevant turnover thresholds pursuant to Article 9(1) of the act are met. However, in addition to these thresholds, the act provides for a filing obligation based on a dominant market position. As a result of legal uncertainty, a leading media group recently asked the Secretariat of the Competition Commission whether its intended acquisition of a small media agency would trigger a merger filing obligation even if the turnover thresholds were clearly not met.
The Insurance Supervision Act regulates the federal supervision of insurers and insurance intermediaries in Switzerland. Since its enactment in 2006, it has been subject to only selective amendments. However, developments in recent years have made partial revisions to the act necessary. Therefore, the Federal Council recently issued a consultation draft and invited interested parties to submit their comments.
Swiss voters recently approved a new corporate tax reform, which will set the basis for new rules on Swiss corporate taxation and secure and enhance Switzerland's overall attractiveness as a business location. The reform includes a patent box, an R&D super deduction and a notional interest deduction for high-tax cantons. There are also substantial non-tax (revenue-raising) measures and new provisions on social security contributions.
Air traffic controller and pilot organisations have criticised recent convictions handed down in Switzerland for operational incidents that resulted in neither injury nor damage. Critics have asserted that criminal prosecutions in the aviation sector tend to do more harm than good. Further, there is widespread concern that criminalisation leads to a loss of cooperation from individuals who could provide the most critical insight into the circumstances of an incident.
If everything goes according to plan, on 1 January 2020 Switzerland will have successfully overhauled its financial market legislation with the entry into force of the Financial Services Act and the Financial Institutions Act. An important element of the overhaul is the introduction of a new comprehensive and harmonised prospectus regime. However, the question remains as to whether non-public offerings as a species will survive in Switzerland.
The formal nature of the right to be heard has long been recognised by the Supreme Court. Applied strictly, it entails that an award affected by a violation of such right must be set aside, irrespective of whether the violation affected the outcome of the case. However, the Supreme Court's more recent practice tends to depart from a strict application of the formal nature of the right to be heard and to require the applicant to establish a causal link between the asserted violation and the (adverse) outcome of the case.
The Federal Administrative Court (FAC) recently confirmed that the Swiss Competition Commission's decision to publish the contents of a preliminary investigation's final report must comply with the Federal Act on Data Protection and the Cartel Act. In the case at hand, the FAC held that the public interest in publishing largely prevailed over the private interest of an undertaking in maintaining its good reputation.
The Federal Supreme Court recently ruled that a Swiss-based asset management company's disclosure of client information to US authorities with a view to facilitating the conclusion of a non-prosecution agreement violated Article 271 of the Criminal Code. The decision reiterates that the court does not look favourably on persons who take matters into their own hands and bypass the competent Swiss authorities in furtherance of foreign state interests.
The basic rule 'no wages without work' dictates that employees who perform no work, including those deemed incapable of working, should not receive wages. However, Swiss employment law provides for exceptions in some circumstances. This article addresses the circumstances in which employers must continue to pay employees who are unable to work, how long employers must continue to pay such employees and the circumstances in which employers may request medical certificates.
The Federal Council recently launched the consultation process on the preliminary draft of the new Federal Act on the Protection of Minors in respect of Films and Video Games (Youth Protection Act). The Youth Protection Act, which will comprehensively regulate the protection of minors and close existing legislative gaps, is embedded in a complex set of ongoing legal revisions in a national and international context.
In June 2018 the House of Representatives narrowly voted to support a bill which proposes additional protection from claw-back actions for creditors which grant loans that are pre‑approved by an insolvency administrator. While the next steps in the legislative process are unclear, the House of Representatives will likely reopen the debate on this bill in its next session in Summer 2019.
The Banking Act currently regulates only the main features of the restructuring procedure for banks, while more detailed provisions are given in the Swiss Financial Market Supervisory Authority Banking Insolvency Ordinance. To strengthen legal certainty, the Federal Council has initiated a consultation on a partial revision of the Banking Act, meaning that the rights of bank owners and creditors will now be regulated on the legislative level.