Introduction: The Clash of Legal Cultures

The structure of contemporary legal systems is characterised by a major philosophical divergence, a clear dividing line between the Anglo-Saxon tradition of Common Law and the Romano-Germanic tradition of civil law. At the heart of this debate lies a crucial stage, though one often invisible to the general public: the administration of evidence. This clash pits two radically different models against one another: American Discovery and the Swiss system of access to case files.

This contrast raises a question that goes beyond mere procedural technique: how do these two approaches reflect a divergent vision of the role of the lawyer and the very purpose of justice? Should the law aim to establish a material truth under the sovereign control of the state, or should it promote the search for a consensual truth arising from the fair confrontation between two adversaries? By analysing the mechanisms of discovery and its safeguards, this article explores the tensions between the effectiveness of private investigation and the imperatives of a fair trial.

 Recognition of foreign judgments in Switzerland

In Switzerland, a foreign court decision acquires legal effect only once it has been recognised and declared enforceable through the exequatur procedure. This preliminary step is indispensable before any enforcement measures may be undertaken, whether to recover a debt, seize assets, or obtain a definitive release. The Lugano Convention (CLug) regulates this mechanism in its Articles 38 and following. Within this framework, the Swiss judge does not reassess the merits of the case but confines the examination to verifying the authenticity of the foreign decision, its enforceability in the State of origin, and its conformity with the fundamental procedural guarantees recognised under Swiss law.

Documents to be produced: the certified copy and the certificate

Article 41 CLug provides that exequatur is granted once the formalities set out in Article 53 CLug are satisfied. The applicant must therefore submit a copy of the judgment that meets the requirements of authenticity. Swiss case law is consistent in holding that the original decision may be replaced by a certified copy but never by a simple photocopy, which is considered insufficient even in the absence of objection from the opposing party (ATF 5A_241/2009, c.2; ATF 5A_818/2014, c.3; ATF 4A_551/2020, c.2; Commentaire romand, Art. 53, para. 1).

When civil and commercial decisions are subject to ordinary recognition and enforcement proceedings, the applicant must in principle also enclose a certificate issued under Article 54 CLug by the authority of the State of origin. This certificate attests to the enforceability of the judgment and facilitates the Swiss court’s assessment. It is, however, not issued for certain categories of decisions, such as provisional measures rendered in non-adversarial proceedings or default judgments against defendants whose address is unknown and who are therefore unaware of the proceedings (CJEU, C-292/10).

Leaving your wealth behind to your family members or other persons is always a complicated issue. Even those who inherit it, with or without a will, are not spared.

The inheritance tax varies between 0 and 50% and depends on the degree of kinship, but also on whether it is real estate, securities, bank deposits or valuables. It also plays a role if the assets are registered in the country of residence, in the EU or in another state, but also the nationality of the heirs, etc. Special rules apply in particular to life insurance policies, joint-stock companies, etc.

 By Urs Feller. Partner at Prager Dreifuss Rechtsanwälte AG Zürich (Re published with permission)

Introduction

The global trend of strengthening collective redress mechanisms has reached Switzerland as well. Recently, the debate intensified considerably after the European Court of Human rights ruled in a landmark judgment that Switzerland's inadequate measures against climate change violate the human rights of a group of older Swiss women. In addition, last year's emergency takeover of Credit Suisse by UBS, following which investors claimed considerable losses, has reignited the topic.

As the Swiss Civil Procedure Code (CPC) lacks a true representative mechanism of collective redress, the core of the ongoing political debate is about whether – and if yes, to what extent – such litigation mechanisms should be adopted to ensure effective access to justice for persons affected by mass damages.

November 14, 2024 – Geneva, Switzerland

The Global Justice Network (GJN) has issued a response to recent remarks made by Dr. Roy Jacobs, CEO of Philips, regarding the “Respironics” European class action currently before the courts of Milan. This case, led by GJN in collaboration with Adusbef and European patient representatives, seeks accountability for the effects of Philips' recalled medical respiratory devices on hundreds of thousands of patients across Europe.

In a recent interview with the Dutch publication NU.nl, Dr. Jacobs addressed the class action by stating, “If there are consequences, they will be of a very different magnitude than in the North American case,” and added that “It is too early to talk about it at this stage. We don’t know yet if there is anything significant in the case”.

GJN wishes to address these comments considering the significant potential implications for affected individuals across Europe.

Magnitude of the Case

The European class action has already seen interest from thousands of individuals seeking legal recourse due to the potential health risks associated with Philips' recalled devices. The lawsuit could represent over one million users of these medical devices, though the true number of individuals exposed may be significantly higher. This includes not only users of these devices at home but also those who have relied on ventilators in critical care settings, particularly during the COVID-19 pandemic. Given the scope of this impact, GJN emphasizes that this matter warrants serious consideration.

Acknowledging Public Health Concerns

In response to Dr. Jacobs’ assertion that it is premature to address the concerns raised, GJN underscores the importance of clarity and transparency from corporate leadership on matters that impact public health. The organization asserts that public trust and confidence require clear communication and responsible action from multinational corporations, especially in health-critical industries.

Since the summer of 2021, the Dutch company Koninklijke Philips N.V. has been forced to withdraw from the global market several devices massively affecting the whole world, and more specifically, defective models of respirators presenting a health risk for patients suffering from respiratory problems, including sleep apnea[1].

The nature and scale of the case led consumers around the world to question the legal options available to them in such a situation. A first initiative was the conclusion of an agreement between Philips and the United States, under which the Dutch company would have agreed to compensate 58,000 people affected by the defective devices, to the tune of 1.1 billion dollars[2], in order to collectively settle all claims for damages from the victims.

However, unlike in the United States, where the class action originated, what about on a European scale, and more specifically, in European Union law? European law has a legal text that is binding on its member states: Directive 2020/1828 on representative actions to protect the collective interests of consumers, which came into force on June 25, 2023. In its preamble, the Directive aims to "improve consumers' access to justice" (ch. 10), and consequently, to be represented by entities qualified to act against companies (art. 4 ch. 1). It thus enables European consumers to have their rights and interests protected in the event of infringement of European law by companies.

In June 2023, as part of the Global Justice Network (GJN), one of the world's leading groups of international lawyers, our firm proudly and with dignity demonstrated its willingness to continue its commitment by working and persevering in its mission to represent people harmed in Europe by the use of these devices, and in particular those in Switzerland who had used the 28,188 devices sold in that country. Together with the Italian consumer rights organization ADUSBEF, our groups then brought the first Europe-wide class action based on the aforementioned Directive against Philips[3].

On the 9^th 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 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. 

On March 28, a FLIXBUS bus traveling from Berlin to Zurich deviated from its route, resulting in a significant incident on German soil. Among the 54 passengers, 29 sustained minor injuries, 6 sustained serious injuries, and 4 were killed.
It is tempting to conclude that an accident on German soil should be subject to German jurisdiction. However, this conclusion is incorrect. In order to protect consumers, our legislators have provided for means of action before the courts of the consumer's place of residence. The idea is to facilitate the defense of the consumer, who is generally a helpless individual, against the giants of the economic world.
In accordance with Article 114, paragraph 1, of the LDIP, an action brought by a consumer who satisfies the additional conditions set forth in Article 120, paragraph 1, letters a to c may be brought, at the consumer's discretion, before the Swiss court of the consumer's domicile or the court of the supplier's domicile. Paragraph 2 specifies that the consumer cannot renounce in advance the forum of their domicile. This means that any contractual stipulation of choice of forum does not exclude the possibility of acting at the consumer's domicile.
The term "consumer" is not defined in the legislation. Article 114, paragraph 1, of the LDIP refers to Article 120, paragraph 1, of the LDIP to define it.
In accordance with Article 120, paragraph 1, of the LDIP, a consumer is defined as an individual who has entered into a contract for a service intended for personal or family use, and which is not related to the consumer's professional or commercial activity. Therefore, a consumer is someone who purchases for non-professional use.

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.

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 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), following the accident that had left her permanently disabled. She raised a number of complaints against the rulings of all Swiss 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).