59: Untitled Page 44

IV.Landmark Cases

1. STATE LIABILITY: VACHERIN MONT D’OR98

In 1987, an epidemic of the bacteria “listeria monocytogenes” emerged in Swiss soft cheese produced in the canton of Vaud (Vacherin Mont d’Or). Rather than prohibiting the selling and distribution, the Swiss federal authorities informed the public about possible health risks related to the consumption of Vacherin Mont d’Or. Seven producers of soft cheese brought an administrative claim (verwaltungsrechtliche Klage) before the Federal Supreme Court. The plaintiffs claimed that they suffered damages (drop in sales) through legally and factually wrong, inadequate, late, and inappropriate information by the Swiss authorities.

The Court reasoned that according to Article 3 of the Federal Act on State Liability99 the state can be held liable for damage a civil servant unlawfully causes in carrying out his or her task. The conduct is considered to be unlawful if either certain legally protected interests are violated, focusing on the results of the conduct (Erfolgsunrecht), or if it is contrary to provisions of the statutory law, thus focusing on the conduct of the tortfeasor (Verhaltensunrecht). However, if official duties require a certain conduct, which is performed in a proper manner, such conduct is lawful.

The plaintiffs could not invoke any legally protected interests since pure assets are, as such, not legally protected and, consequently, pure financial loss does not qualify as Erfolgsunrecht. Thus, the Court considered whether the federal authorities, by informing about possible health risks, violated statutory law.

In particular, the Court examined Article 3 Epidemics Act100, which governs information activities of the federal authorities related to combating infectious diseases. The Court emphasized that the Swiss Federation can only be held liable if the authorities informed in an unjustifiably erroneous manner. The Court found no such errors. Rather, the federal authorities, when informing on the health risks, duly took into account state-of-the-art scientific knowledge and made distinctions between different cheeses where such distinction was appropriate. Thus, the Court found that the authorities informed the public in line of Article 3 Epidemics Act; did not violate statutory law; and, accordingly, acted lawfully. The Court rejected the claim.

2. PROTECTION OF LEGITIMATE EXPECTATIONS: PIANO TEACHER101

X was a student in the training program at the Conservatory of the canton of Fribourg in order to obtain the necessary diploma to be a piano teacher. On June 26, 2008, he failed his final exam – a piano recital performed in front of an audience – due to a state of discomfort and emotional blockage.

The board of examiners allowed X to repeat the final exam in camera, i.e. without audience. On 13 October 2008 X passed said exam and the board of examiners handed him the signed minutes of the exam. Subsequently, he was informed by letter dated 14 October 2008 that he successfully completed the study program for the teaching diploma.

The director of the Conservatory, however, requested the competent agency – the Direction of Education, Culture, and Sport of the canton of Fribourg – not to issue a diploma since X did not perform publicly. On 2 March 2009 the Direction refused to issue the diploma. X’s appeal to the Administrative Court of the canton of Fribourg was not successful. X challenged this decision before the Federal Supreme Court and requested that the Direction be obligated to issue the diploma.

The Federal Supreme Court reasoned that conducting the repeat exam without an audience conflicted with the relevant statutory law. Hence, the administrative act regarding the passing of the repeat exam was legally erroneous. The Court, thus, examined whether the Direction could lawfully revoke the administrative act or whether instead X could invoke the protection of his legitimate expectations (Article 9 Constitution).

The Court emphasized that X had legitimate expectations to believe that the resolution of the board of examiners to renounce the public audience was lawful. Further, X made arrangements causally linked to his expectations by obtaining a post as piano teacher. Finally, the Court conducted the balancing test between legality and the expectations. From an overall perspective on the training program and the fact that piano teachers do not have to perform in public, the Court considered the attendance of the public during the final exam to be of minor importance. On the other hand, it emphasized the adverse consequences that X faced if the diploma would not be issued (repetition of a long study program, financial losses, and loss of earnings). The Court held that X’s legitimate expectations outweighed the public interest in ensuring the proper application of the law and, as a consequence, the Direction was not allowed to revoke the administrative act.

3. PRINCIPLE OF LEGALITY: HEADSCARF102

A and C attended public school in a municipality in the canton of Thurgau and wore Islamic headscarves. The school regulations contained the following provision: “Students attend school neatly dressed. The trustful interaction requires the attendance of school without headgear. Hence, wearing caps, headscarves, and sunglasses during class is forbidden.” The school authorities dismissed the request of the two girls to be exempted from said regulation and barred them from wearing headscarves. The Administrative Court of the canton of Thurgau considered the ban to be based on an insufficient legal basis and disproportionate. Hence, it struck down the ban. The municipality challenged this decision before the Federal Supreme Court.

The Court reasoned that wearing the Islamic headscarf is protected by Article 15 Constitution (Freedom of religion and conscience) and that any restriction on fundamental rights must have a legal basis (Article 36 I Constitution). Such legal basis may not be unduly vague and, since banning headscarves constitutes a severe restriction on a fundamental right, must be issued by the legislator.

The school authorities asserted that they were entitled to ban wearing Islamic headscarves based upon the purpose clauses of the cantonal act on elementary schools. The Court considered these provisions to constitute no sufficient legal basis for banning headscarves at schools, namely against the background of the predictability and foreseeability of governmental action.

Further, the school authorities asserted that, based upon a statutory delegation clause – i.e. an act made by the legislator –, the organizational planning of the school is in their scope and that they have, accordingly, the right to issue school regulations. The Court reasoned that the school authorities, based upon said delegation clause, may issue certain internal rules. However, it found that the asserted delegation clause does not concern in any way the restriction of fundamental rights such as the freedom of religion and conscience and that, consequently, the elements of delegated legislation were not met. Thus, the Court held that there was no legal basis for banning headscarves at schools.

4. PRINCIPLE OF PROPORTIONALITY: HOOLIGANS103

In Switzerland, the cantons established the Concordat on Measures to Combat Violence during Sports Events (so-called “Hooligan-Concordat”) which has been in force in all cantons since 15 November 2007. On 2 February 2012, the Hooligan-Concordat was revised. It implemented further-reaching measures against persons involved in violence. Inter alia, the revised concordat stipulated that

-exclusion orders (Rayonverbot) must last at least one year under any given circumstances; and

-the duration of the reporting obligation (Meldeauflage) must mandatorily be doubled if such obligation is breached without excusable grounds.

Against the accession of the cantons of Aargau and Lucerne two complaints were filed before the Federal Supreme Court. The Court examined, inter alia, the revised provisions regarding the measures mentioned above by way of abstract judicial review.

The Court reasoned that exclusion orders restrict the right to freedom of movement (Article 10 II Constitution). Such measures must – apart from being based on a legal basis and pursuing a legitimate public interest – be proportionate. Further, the Court reasoned that, on one hand, the revised provision completely bars authorities from issuing any exclusion order in less severe cases where only orders of less than one year would be proportionate. On the other hand, the minimum time limit of the exclusion order prevents the authorities from adjusting the measures on a case-by-case basis as required by the principle of proportionality. Thus, the Court held that the respective provisions violate the principle of proportionality.

Similarly, the Court questions whether a duplication of the reporting obligation is the least restrictive measure under any circumstances. Rather, the provision constitutes a rigid automatism that does not leave any margin of discretion to the authorities in the individual cases. The Court consequently held that such automatism violates the principle of proportionality. It rescinded the mentioned provisions provision of the Hooligan-Concordat.

98BGE 118 Ib 473.

99Federal Act on State Liability of 14 March 1958, SR 170.32.

100 Federal Act on Measures against Human Infectious Diseases of 18 December 1970, SR 818.101.

101 BGE 137 I 69.

102 BGE 139 I 280.

103 BGE 140 I 2.