Your expert for travel law

Whether it’s a cancelled flight, lost luggage or trouble with the tour operator – Julius Paulicka will stand up for your rights. As a specialist in travel law and a lawyer admitted in Switzerland and Germany, I know the stumbling blocks on holiday and will help you to assert your claims if the anticipation of your trip is spoilt.

Travelling from Switzerland – your rights know no bounds

Switzerland is strongly orientated towards European standards when it comes to regulating travel rights. Package holidays in Switzerland are governed by the Federal Package Travel Act, which is based on the EU Package Travel Directive. As a result, Swiss travellers benefit from comprehensive protection in the event of defects, service deviations and in the event of the tour operator’s insolvency. Individual travellers also benefit from clear claims in the event of defects and can demand compensation if the requirements of the Code of Obligations are met.

Flight rights – enforcement in Switzerland too

In the event of flight delays or cancellations and problems with baggage, Swiss consumers can often also rely on the EU Air Passenger Rights Regulation (EC No. 261/2004), as this is often applicable under bilateral agreements and in air transport – for example, if the departure takes place in Switzerland or an EU country. The case law of the Court of Justice of the European Union (CJEU) is also regularly taken into account by Swiss courts, as Switzerland has expressly recognised the primacy of international law within the framework of the Agreement on the Free Movement of Persons.

Competent advice on all travel law issues

As a specialist in travel law, I will help you to enforce your rights. Not with empty phrases, but with sound expertise, empathy and a genuine understanding of your situation, I will support you in

Special features for Swiss travellers

Even though Switzerland is not a member of the EU, Swiss travellers benefit from the association with important EU legal acts in the area of travel and consumer protection. The application of European air passenger rights and the recognition of corresponding ECJ case law are an integral part of the Swiss legal framework in travel law according to the current interpretation.

Your advantage with a specialised law firm in Central Switzerland

Travel relaxed – I will take care of your rights in the event of a dispute. Contact me for a non-binding initial assessment.

Employment relationships in the public sector differ from private labour law in key respects. A recent decision by the Administrative Court of Zug clarifies the conditions under which a dismissal in a public sector employment relationship can be lawfully pronounced, in particular in the event of a breach of trust.

Special features of the employment relationship under public law

In contrast to private labour law, which generally provides for extensive freedom of dismissal, public employers may only terminate the employment relationship for objective reasons. Such reasons include, for example, operational reorganisation, poor performance or – as in the present case – a lasting breach of trust. The relevant personnel laws of the cantons and municipalities require that the termination appears to be an objectively justifiable measure and that the general principles of state action, in particular the principle of proportionality, are observed.

Facts of the case: Trade union commitment and conflict of loyalty

In this case, a teacher at the Menzingen cantonal school reactivated the internal teachers’ union after a change in school management and campaigned on behalf of colleagues who had lost their jobs as a result of personnel decisions. Despite repeated requests from the school management to accept personnel decisions and respect competences, the teacher turned to the superior authority as a trade unionist. The school management saw this as a sustained breach of the relationship of trust and terminated the employment relationship.

Legal assessment by the administrative court

The Administrative Court of Zug examined whether there were objective grounds for termination and whether the dismissal was proportionate. It came to the conclusion that even a serious loss of trust – even without disciplinary misconduct – can justify a dismissal if cooperation is objectively no longer possible. The court emphasised that in such exceptional cases, milder measures such as a transfer or warning are not mandatory if they cannot restore the damaged relationship of trust. The dismissal was classified as not abusive; there was no entitlement to severance pay as there were no corresponding applications.

Procedural law requirements

Public employers are obliged to respect the right to be heard and to conduct the proceedings correctly. In particular in the case of performance or behavioural problems, a written warning and a probationary period are generally required before dismissal. The principle of proportionality requires that the mildest appropriate measure is always chosen. This can only be deviated from in the event of particularly serious disruptions – such as an irreparable loss of trust.

Practical conclusion

The decision of the Administrative Court of Zug shows that dismissal in the public sector can be permissible even without disciplinary offences, provided that the relationship of trust has been permanently and objectively disturbed. Nevertheless, each case remains a case-by-case examination: as a rule, warnings, the right to be heard and the examination of less severe measures are mandatory. Public employers should therefore document dismissals carefully and strictly adhere to the procedural requirements in order to avoid legal disputes.

Frequently asked Questions on public sector employment Law

An employment relationship under public law exists if the employment relationship is expressly regulated by cantonal personnel law, such as the Personalgesetz (PG) of the Canton of Zug. This applies in particular to teachers, administrative staff and employees of public authorities.

Depending on the applicable personnel law, notice of termination must be given in the form of a ruling, and the person concerned must be given the right to be heard. The dismissal must be justified in writing and there is a 30-day deadline for lodging an appeal. The procedure must be transparent and comprehensible.

Yes, a profound breach of trust can justify dismissal – even without disciplinary misconduct – if no milder measure (e.g. transfer, warning) is reasonable or likely to succeed. This was expressly confirmed by the Administrative Court of Zug in its ruling on the dismissal of a teacher.

In addition to the loss of trust, the following reasons may justify ordinary dismissal (see also BGer 8C_995/2012):

  • Lack of willingness to co-operate
  • Sustained breakdown of the relationship of trust
  • Quantitatively or qualitatively inadequate work performance
  • Personal difficulties with superiors or subordinates that affect the working atmosphere
  • Repeated criticism of social skills, confirmed by various stakeholders (e.g. pupils, parents, colleagues)
  • Work performance that does not improve despite support
  • Minimalist attitude in the fulfilment of the work assignment

No. An entitlement to severance pay only exists in the event of abusive dismissal. If there is an objective reason and the procedure was followed correctly, there is no such claim.

Debtors should not be able to discharge their financial obligations through abusive bankruptcy. At its meeting on October 25, 2023, the Federal Council enacted the necessary amendments to the law and ordinances, in particular the Federal Act on Debt Enforcement and Bankruptcy, with effect from January 1, 2025.

As a result, the hurdles to freeing oneself from debts to the detriment of creditors have become higher. If the debtor is registered in the Commercial Registry, claims under public law will no longer be pursued for seizure but for bankruptcy from January 1, 2025. These claims include, for example, tax arrears, fines or outstanding state pension contributions. Companies are therefore exposed to an increased risk of bankruptcy. Art. 43 no. 1 and 1bis SchKG, which excluded these claims from bankruptcy proceedings, will be deleted from the law.

This change has a major impact on companies and their creditors. This is because, unlike the previous procedure with loss certificates (‘Pfändungsverlustscheinen’), bankruptcy proceedings can put an end to a company’s activities. Only companies that are generally subject to bankruptcy are affected. Who is subject to bankruptcy is determined by Art. 39 para. 1 SchKG. Parliament justified the change by stating that debtors should no longer be able to misuse bankruptcy proceedings to avoid their financial obligations, such as salary payments or debts, and thus harm other people.

Private creditors benefit because the creditor who files for bankruptcy bears the costs. As the public sector is the most common creditor, private individuals can file their claim free of charge after the state has initiated bankruptcy proceedings. However, the deadline of 15 months for filing a bankruptcy petition must be observed. At the same time, this makes it more difficult for the authorities to enforce their claims, as they now have to go through the more complex bankruptcy proceedings.

The Federal Act on Combating Abusive Bankruptcy not only resulted in amendments to several laws, namely the Swiss Code of Obligations, the Debt Enforcement and Bankruptcy Act, the Swiss Criminal Code and the Federal Act on Direct Federal Taxation. As a result, the Commercial Register Ordinance and the Criminal Records Ordinance were also revised in order to provide the necessary implementing provisions for the implementation of the law.

From now on, bans on activities entered in the criminal register will be reported to the Federal Supervisory Authority for the Commercial Register, which will check whether a ban on activities is incompatible with entries in the commercial register. In addition, measures can be taken that go as far as deleting the person concerned from the commercial register. Furthermore, the cantonal tax authorities are obliged to notify the commercial register offices if a company has not submitted the annual financial statement required by law. These provisions strengthen cooperation between the authorities and prevent such companies from operating for long periods without keeping accounts and thus acting to the detriment of their creditors.

Presently there is no dedicated Artificial Intelligence (AI) legislation in Switzerland. Nevertheless, given the ever increasing adoption and use of AI tools in various sectors – in particular in finance, the risks associated with such systems would inevitably require thorough scrutiny.

To this end, the Swiss Financial Markets Authority (FINMA) has recently[i] published a set of findings and observations which take a risk-based approach defined from operational, data-related, IT and cyber alongside legal and reputational perspectives. The supervised entities would therefore need to identify, assess, monitor, manage and control the risks associated with their AI applications, either as an in-house development or outsourced, and to make sure these are aligned and reflected in their respective governance models.

Above all, FINMA highlights operational risks such as lack of robustness, correctness, bias and explainability, the risks associated with third party service providers as well as challenges in the allocation of responsibilities and accountability as the most compelling issues.

Once identified, the ‘materiality’ of the risks in question would need to be determined. In other words, to define whether a given AI application may carry a higher threshold in cases where it “…is used to comply with supervisory law or to perform critical functions, or when customers or employees are strongly affected by its results”.

From the perspective of date-related risks, it is apparent that incorrect, inconsistent, incomplete, unrepresentative or outdated data would undermine the credibility and effectiveness of an AI application. Therefore, certain measures would need to be put in place to ensure input data integrity and that the availability of and access to data is secured. On the other hand, FINMA refers to regular checks in order to detect data drifts, and to validation methods in order to guarantee ongoing quality of output data.

Lastly, it is noted that explainability of results would be critical for an effective assessment of an AI application, whereby the drivers of a given application and its behaviour under varying circumstances and conditions would need to be comprehensible even to non-experts such as clients, investors and supervisory authorities etc. For those applications carrying higher ‘materiality’, the results of an independent review forming an informed and unbiased opinion as to the reliability of the application in question would also need to be taken into account in the development phase of that application.

[i] See here https://www.finma.ch/en/news/2024/12/20241218-mm-finma-am-08-24/.

The new FINMA circular 2025/2 on rules of conduct under the Financial Services Act (FinSA) and Financial Services Ordinance (FinSO) which is set to enter into force on 1 January 2025[i] aims to put together a series of uniform standards for the provision of information and support of clients in the financial services sector.

A transitional period until 30 June 2025 is introduced for the implementation of certain requirements.

The circular will essentially be applicable to banks and security firms, managers of collective assets, companies with provision of fund management as well as portfolio management services. Therefore, those financial service providers which are not subject to FINMA supervision would in principle fall outside of the scope of the circular.

In a nutshell, a number of points as follows.

[i] See here https://www.finma.ch/en/news/2024/11/20241121-mm-rs-verhaltenspflichten-fidleg/.

On 17 October 2024[i] the European Commission adopted the first implementing rules of cybersecurity of critical entities and networks, in consonance with the NIS2 Directive, in the form of an Implementing Regulation.[ii] The Regulation is set to come into force in late November, to be precise 20 days after its publication in the Official Journal – which took place on 7 November 2024.

The adoption of the Regulation also coincides with the last day of the deadline set for the EU Member States to transpose the NIS2 Directive into their national laws.

The implementing rules essentially detail measures pertaining to cybersecurity risk management, and reporting obligations to national authorities across the bloc which are imposed on companies providing digital infrastructures and services in the event “significant” incidents may occur. Specifically, those companies with provision of digital services for instance cloud computing service providers, data centre service providers, online marketplaces, online search engines and social networking platforms would fall under the scope.

NIS2 Directive[iii] re-categories and noticeably expands the previous scope, which initially covered two categories of i) operators of essential services (OESs) and ii) relevant digital service providers (RDSPs), by classifying covered entities under either Essential Entities (EE) or Important Entities (IE).

EE includes sectors of energy, transport, finance, public administration, health, space, water supply and digital infrastructure such as cloud computing service providers and ICT management.

IE includes sectors of postal services, waste management, chemicals, research organisations, food processing, manufacturing and digital providers such as social networks, search engines and online marketplaces.

With micro and small entities in principle excluded from the scope, the Directive puts in place a size threshold. In other words, a threshold of 250 employees, annual turnover of €50 million or balance sheet of €43 million concerning the EE entities, respectively a threshold of 50 employees, annual turnover of €10 million or balance sheet of €10 million concerning those under the IE list.

Nevertheless, an entity may still be considered as ‘essential’ or ‘important’ irrespective of its size, if it is the sole provider of a critical service for societal or economic activity in a given Member State, respectively a trust service provider or any central or regional government entity.

Similar to GDPR, the Directive requires Member States to impose penalties for non-compliance, the ratio of which would differ per classification. €10 million or at least 2% of global annual turnover for the previous fiscal year, whichever is higher, for the EE entities, respectively €7 million or at least 1.4% of global annual turnover for the previous fiscal year, whichever is higher, for the IE entities.

Notably, the covered entities’ management bodies, such as board of directors, would also be held liable for non-compliance.

On the other hand, the Swiss Information Security Act (Informationssicherheitsgesetz, ISG) applies primarily to the federal administration, cantonal authorities and their partner companies in the country, and its revised version is set to come into force by 1 January 2025. In this context, partner companies could be active in similar sectors as those within the scope of the Directive in the EU, such as financial and information and communication sectors as well as those service providers and manufacturers of hardware and software products that are used by critical infrastructures.

Therefore, supplier companies would indirectly fall under the scope of ISG, similar to that of the Directive in the EU. The Swiss entities forming part of a supply chain which ultimately target those EU based entities covered by the Directive, would as a result be affected by the requirements and obligations under both instruments.

Specifically, the subsidiaries and branches of Swiss entities registered within the EU, which fall under either of the EE or IE classifications, will have to comply with the Directive in the EU and comply with the requirement to register with the national authority of an affiliated Member State, among other things. In this scenario, the parent or affiliated entity in Switzerland may also be indirectly caught under the radar of the Directive through the supply chain connection.

[i] See here https://ec.europa.eu/commission/presscorner/detail/en/ip_24_5342.

[ii] See here https://eur-lex.europa.eu/eli/reg_impl/2024/2690/oj.

[iii] See here https://eur-lex.europa.eu/eli/dir/2022/2555.

Following the judgement of 4 October 2024 of the Court of Justice of the European Union (CJEU)[i], case C‑446/21 between Maximilian Schrems and Meta Platforms Ireland Ltd (“Meta”), the scope of collection of personal data on social media network platforms and the applicable restrictions thereof in particular in the context of targeted advertising were put under strict scrutiny.

Here, the EU General Data Protection Regulation (GDPR) principles of data minimisation and purpose limitation were specifically delved into.

Meta generally manages the provision of services of the online social network Facebook in the EU and is considered as the controller within the meaning of the GDPR. The present case concerns data collected from Facebook users’ activities by Meta not only on Facebook but also outside, including those data related to online platform visits and navigation patterns as well as third party websites and applications. For this, Meta is seen to utilise cookies, social plug-ins and pixels, which are embedded on the relevant websites, for the purpose of targeted advertising.

The CJEU decision brings further clarity to the following:

. the scope of the principle of data minimisation under Art. 5(1)(c) GDPR covers all personal data which is collected from data subjects or third parties by a controller, collected on or outside the platform, for the purpose of aggregation, analysis and processing in the context of targeted advertising, whereby the retention time would at all times need to be restricted and the type of personal data would need to be distinguished. Furthermore, the principle is applicable irrespective of the legal basis used for the processing, and even if a data subject may have consented to targeted advertising, their personal data cannot be used indefinitely.

. Article 9(2)(e) GDPR, on processing of special categories of personal data, would need to be interpreted in a restrictive manner, whereby the mere mentioning of a fact by a data subject in a public setting should not easily give rise to any other information related to that particular fact being labelled as “manifestly made public” and hence legally permitted to be processed.

As a consequence of the CJEU ruling, any operator of a social media network platform or online advertisement company would need to restrict their data pool and put in place an effective data deletion policy.  

[i] See here https://curia.europa.eu/juris/document/document.jsf;jsessionid=5CE53D5E3FCC1ABA77F2ACD5AAC2F038?text=&docid=290674&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1306139.

On 18 September 2024 Switzerland deposited its accession instrument to the Hague Convention of 30 June 2005 on Choice of Court Agreements (HCCH), and simultaneously filed a declaration under its Article 22 on non-exclusivity.

The HCCH accession, serving as the background to the Federal Parliament’s 2023[i] decision to adopt the amendment to the Federal Act on Private International Law (PILA), is set to become effective as of 1 January 2025. The step will regulate the validity of choice of court agreements, the jurisdiction of agreed courts in international commercial disputes and the cross-border recognition and enforcement of court judgements, which in turn is expected to bring about more legal certainty in favour of Switzerland as a location of choice for doing business in cross border settings, not only in terms of increased predictability in international disputes but also possibly due to decreased procedural costs.

Being largely compatible with the Swiss law, the HCCH accession will in practice only result in the amendment of PILA with respect to its Articles 5 and 6 on choice of forum, and respectively on implied consent.

In addition, Article 26 HCCH regulates possible conflicts with other international instruments such as the Lugano Convention, whereby the latter shall take precedence in cases of inconsistency.

On a different note, as the first State to ever file a declaration under Article 22 HCCH, “[…] Switzerland declares that its courts will recognise and enforce judgements given by courts of other Contracting States designated in a choice of court agreement concluded by two or more parties that meets the requirements of Article 3, paragraph c), and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, a court or courts of one or more Contracting States.”

The application of this provision would nevertheless be conditional upon reciprocity between the State of origin and the State in which recognition or enforcement is sought, whereby both States’ declarations would already need to be in place for the non-exclusivity to become effective.

[i] See here https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-102325.html#:~:text=Das%20Parlament%20hat%20am%2022,Januar%202025.

On 22 May 2024 the Swiss Federal Council[i] decided on submitting further reforms in the realm of the anti-money laundering (AML) framework to the Parliament, with an aim to reinforce the competitiveness of the country both as a financial centre and a commercial hub.

These reforms, which are expected to come into force by early 2026, include the introduction of a non-public federal (transparency) register of beneficial owners. A simplified registration will be provided for not only associations and foundations but also sole proprietorships and limited liability companies. The register will be managed by the Federal Department of Justice and Police (FDJP).

Other proposals refer to the AML due diligence obligations applicable to certain advisory activities, in particular legal advice. While maintaining professional secrecy, these obligations will kick-in in certain activities with a potentially increased money laundering risk, such as the founding and structuring of companies as well as real estate transactions.

Precisely speaking, the following will be pivotal:

. The client’s identity must be verified and the beneficial owner and the object and purpose of the transaction or service must be identified;
. If the client, or the transaction or service, has a particularly high risk profile, it may be necessary to clarify the origin of the funds or to request additional explanations about the purpose of the requested transaction or service;
. The measures undertaken in connection with due diligence must be appropriately recorded.

In this respect, the responsibility for supervising the exercise of due diligence obligations by the affected lawyers and legal advisors will be vested upon the self-regulatory organisations (SROs).

Furthermore, additional organisational measures will be set in place against i) circumvention of sanctions under the Embargo Act, ii) cash payments exceeding CHF 15,000 in precious metals trading and iii) any amount in real estate business.

On a different note, on 22 May 2024 the Federal Council[ii] launched a consultation, set to run until mid September 2024, on the Cybersecurity Ordinance which essentially outlines the implementation of the obligation to report cyberattacks on critical infrastructures and the national cybersecurity strategy as well as the duties of the Swiss National Cyber Security Centre (NCSC).

The Ordinance also specifies exempted entities from the reporting obligation, namely those suffering a cyberattack which have no direct impact on the functioning of the economy or the well-being of the population. In addition, a general exemption would apply to companies with fewer than 50 employees, an annual turnover or annual balance sheet total of less than CHF 10 million and authorities that are responsible for fewer than 1,000 inhabitants.

Lastly, on 15 May 2024 the Federal Council[iii] decided to initiate a consultation, applicable until early September 2024, on extending the international automatic exchange of information in tax matters (AEOI). Set to apply from 1 January 2026, the extension would concern the new AEOI regarding cryptoassets and the amendment of the standards for the automatic exchange of financial account information.

Notably, the OECD update to the common reporting and due diligence standards for financial account information (CRS) and the new cryptoasset reporting framework (CARF) was published in October 2022. While the amendments to the CRS clarify interpretation issues and take practical experience into account, the CARF regulates the handling of cryptoassets and their providers.

Subject to parliamentary approval, Switzerland thus intends to also implement the CARF with an intention to effectively address existing gaps in the tax transparency mechanism and to ensure equal treatment with respect to traditional assets and financial institutions.

[i] See here https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-101100.html.

[ii] See here https://www.ncsc.admin.ch/ncsc/en/home/dokumentation/medienmitteilungen/newslist.msg-id-101088.html.

[iii] See here https://www.admin.ch/gov/en/start/documentation/media-releases/media-releases-federal-council.msg-id-101030.html.

Alongside the 2023 revision of Swiss company law where foundations were also inevitably affected, precisely from the perspectives of insolvency and disclosure requirements, as of 2024[1] the foundation law has become more simplified in a quest to provide for more flexibility.

The applicable changes, namely in the context of Articles 84 – 86 of the Swiss Civil Code (CC), could be summarised as follows:

On the other hand, the Swiss Federal Act on Private International Law (PILA) has recently[2] undergone a partial revision from the cross-border succession law perspective with the adoption of amendments on chapter 6 of the Act by the Swiss Parliament in December 2023.

While the date of entry into force of the amendments is yet to be precisely defined, a referendum deadline has been set until 18 April 2024.

The purpose behind the revision is to primarily improve the Act’s alignment with the EU Succession Regulation of 2012, applicable in all the EU Member States as of 2015 – save for Denmark and Ireland.  

With deceased’s last place of residence still serving as the primary connecting criterion, the changes aim at cutting down conflicts of jurisdiction in cases with a cross-border angle, and increasing party autonomy as per choice of applicable law to estate planning.

The changes include:

From a practical perspective, however, the exclusion of Swiss jurisdiction as well as the choice of a national jurisdiction and applicable law must be explicitly stipulated in the testamentary disposition of a testator or testatrix.

[1] See here https://www.fedlex.admin.ch/eli/oc/2022/452/de.

[2] See here https://www.parlament.ch/centers/eparl/curia/2020/20200034/Schlussabstimmungstext%201%20NS%20D.pdf.