The Federal Council recently submitted to Parliament a dispatch approving the Council of Europe Convention against Trafficking in Human Organs. The Federal Council supports the convention, which aims to harmonise criminal provisions internationally. In particular, the convention provides for the prosecution of all human organ trafficking, regardless of where it takes place.
As part of its effort to meet EU-equivalent standards, Switzerland is in the process of implementing a comprehensive reform package which will fundamentally change the Swiss financial market regulatory framework and introduce the country's first harmonised and coherent prospectus regulation. The new regime will ensure that bond issuers will continue to have efficient and quick access to the Swiss debt capital market – one of the legislature's key goals.
In recent years, the number of publicly placed and listed securitisation transactions in the car leasing and credit card sectors has increased significantly. The driving force behind this development is economic rather than legislative, as Swiss law places no specific restrictions on asset classes eligible for securitisation. However, compliance with certain Swiss legal concepts is crucial when setting up a securitisation transaction involving Swiss law-governed receivables.
The Agreement on Admission to the Labour Market for a Temporary Transitional Period following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons will provide facilitated access to the labour market for British nationals in Switzerland and for Swiss nationals in the United Kingdom after Brexit. The agreement will serve as a transition regime in the event of a no-deal Brexit and would be entered into for a limited period until 31 December 2020.
In Swiss M&A practice, share deals remain the most common method of acquiring a business from a third party for several reasons. Due to strict Federal Supreme Court precedents, legal due diligence regarding share ownership and related compliance has always been a fundamental component of legal due diligence in Swiss share deals. Recent legislative changes have further increased the importance of thorough due diligence in this regard.
The Swiss Financial Market Supervisory Authority (FINMA) has published a supplement to its Guidelines on Initial Coin Offerings which outlines how it plans to apply provisions of Swiss supervisory law to projects involving so-called 'stablecoins'. The supplement was prompted by a steady increase in the number of stablecoin projects submitted to FINMA since 2018, including a submission from the Geneva-based Libra Association for an assessment of its Libra project under Swiss supervisory law.
The Federal Council recently adopted new measures to combat rising costs in the public healthcare sector. With this first set of measures, the Federal Council intends to provide all stakeholders with the instruments needed to reduce costs and expects to save several hundred million Swiss francs annually.
The Federal Council recently approved a draft of the Social Security and Health Commission of the Council of States in order to improve the legal basis for the transfer of data of insured persons. The Federal Council intends to collect personal data from insured persons while guaranteeing the protection of personal data and upholding the principle of proportionality.
As a recent European Court of Justice opinion is likely to be adopted by Swiss legal doctrine and precedent, parties domiciled in Switzerland may be targeted by avoidance claims in another signatory state of the Lugano Convention based on a contract to which they were not a party but that was merely concluded between the debtor and a creditor.
The Federal Department of Finance has proposed changes to the draft Financial Services Ordinance (FinSO) and Financial Institutions Ordinance. A significant and welcome change in the draft FinSO is that key information documents for collective investment schemes can be written in English. The Federal Council will make the final decision on the wording of the ordinances and their entry into force in November 2019.
In view of the media industry's ostensibly democratic and political role, the Federal Council has decided to adopt effective and feasible support measures. These measures will be implemented by adapting existing laws and incorporating online media into the scope of the Federal Act on Radio and Television. However, the plan to create a new Electronic Media Act has been abandoned.
The Competition Commission (ComCo) recently closed its investigations into bid rigging in the construction industry and issued fines of Sfr11 million, an amount which would have been much higher had the commission not deducted the damages compensation paid by the cartelists to the victims from its claims. By introducing the possibility of compensating cartel victims for damages in antitrust proceedings, ComCo has chosen to advocate civil antitrust law to the detriment of its leniency programme.
The Federal Supreme Court recently clarified that although certain provisions of the Health Insurance Act and the Health Insurance Ordinance are based on patent protection (or expiration), the Health Insurance Ordinance sets out no pricing rules for generics if the original's exclusivity is only partially lost. Further, protected indications of a multi-indication pharmaceutical, of which some indications have lost exclusivity, cannot be exchanged by a generic.
The Federal Supreme Court recently addressed the relationship between a contractual forfeiture clause under Article 46(2) of the Federal Insurance Contract Act and the statutory limitation period for insurance claims. Among other things, this decision reconfirms previous case law, according to which forfeiture clauses such as the one at issue are customary in the insurance industry. It also confirms that a contraction forfeiture clause may exist alongside the statutory limitation period.
The Federal Council recently submitted a draft amendment to the Narcotics Act for consultation that aims to facilitate patients' access to cannabis-based treatments. The revised act would allow patients to obtain direct medical prescriptions for cannabis-based treatments with a tetrahydrocannabinol content of more than 1% without having to obtain an exceptional licence from the Federal Office of Public Health.
Each year many Swiss corporate clients ask the same question: are bonus payments under an employment contract at the full discretion of employers and therefore voluntary or do employers have an enforceable financial obligation in this regard? This article addresses the factual and legal considerations which usually play a role when HR departments prepare for the yearly bonus season.
The Federal Department of Home Affairs recently decided that measures to preserve the fertility of people suffering from cancer will now be covered by compulsory health insurance. Under the new measures, if cancer patients run the risk that a planned treatment will lead to impaired ovarian or testicular function, sperm, egg cells or ovarian tissue can be frozen (so-called 'cryopreservation') and reused after therapy. Cerebrospinal fluid analyses for diagnosing dementia will also be covered.
Since 1981, the Federal Constitution has guaranteed equal wages for men and women who carry out similar work; however, a wage disparity exists that arguably cannot be explained by anything other than gender. The revised Federal Act on Gender Equality, which enters into force on 1 July 2020, aims to remedy this situation. Under the new regime, companies with 100 or more employees will be obliged to carry out an internal wage equality analysis every four years to identify any gender pay gaps.
The CO2 Agreement between Switzerland and the European Union aims to link the Swiss and EU emissions trading systems (ETSs) to allow energy-intensive industries which currently participate in only the Swiss ETS to access the more dynamic EU emissions market. As under the current regime, the CO2 tax on fuels will be reimbursed to plant operators participating in the Swiss ETS at their request; however, a new exception applies to so-called 'fossil-fuel thermal power plants'.
The Federal Council intends to improve access to psychotherapy, especially for children and adolescents, as well as adults in crisis situations. In order to facilitate such access and ensure adequate care, the Federal Council has proposed a change to the existing system which will allow, among other things, psychotherapists to provide their services independently within the compulsory healthcare insurance framework.