Swiss Federal TribunalJudgement of the first civil law division in the case «Oeffentliche Arbeitslosenkasse»

2.23    Swiss Federal Tribunal, Judgement of the first civil law division in the case „Öffentliche Arbeitslosenkasse des Kantons Solothurn vs. Metallbau X GmbH“ 4C.316/2002 on March 25th 2003 (BGE 129 III 335)

a) Background

From the perspective of an efficient application and enforcement of law in the relationship between Switzerland and the European Union as well as other institutions of greater Europe, the specific legal acts of applying and enforcing such law are the strong currency. We include in this collection one court decision of the Federal Tribunal showing the reasoning and the attitude of the Federal Tribunals vis-à-vis the role of the EU law in its activities. Various texts in this chapter of the collection deal with the issues of the role of the judges and the attorneys, specifically taking into account EU law as described in Jacot-Guillarmod’s introduction; Thürer’s opinion for the Federal Council states the full list of the relevant decisions of the European Court of Justice; and by Swiss courts relevant to Swiss-EU legal relationship; The letter of the Federal Tribunal to the Federal Council states the basic principles to bring about a unified and coherent interpretation and application and declares that this is in the interest of Switzerland.

Although the same provisions of the bilateral agreements cover a far larger territory and population, it has been established for years that the Federal Tribunal follows in as much as possible the interpretation of the European Court of Justice. The Federal Tribunal’s theory of autonomous adoption creates a parallel legal situation to the one in the EU. It, thereby, takes into account later changes of jurisprudence of the European Court of Justice. If the European Court of Justice has not dealt with a legal issue, the Federal Tribunal decides the legal issue on its own as a last instance. If the European Court of Justice at a later point in time decides otherwise, the Federal Tribunal revisits its jurisprudence in the matter. The Federal Tribunal moreover can take into account new European law in as far as it is within the European interpretation of the existing treaty. The text by Thomas Probst gives an overview of the challenges in practice and in legal science in the area of private law. Matthias Oesch’s text,  contains a full overview of all court decisions in Switzerland.

b) Summary

The Judgment of the Federal Tribunal at hand had to deal with the question of whether article 333 para III of the Swiss Code of Obligation, in case of bankruptcy, is applicable. Art. 333, as part of the process of “autonomous adaption,” was adapted in 1993 to directive 77/187. The Federal Tribunal takes respective community law into account in its interpretation of Art. 333. The Federal Tribunal considers controlling not only the state of the community law at the time of the adaptation of Swiss law but also takes into account the developments of community law in the meantime.

The case deals with the following factual situation: on the 29th June 2000, bankruptcy decree was issued against the owner of the individual firm X. The firm Y, a company limited by law, which had been founded on the 26th May 2000 had taken over the inventory of the individual firm out of the bankruptcy estate in order to continue the business operation. The inventory was first leased by firm X and then bought shortly thereafter. The business operation stood still for one day. Die Arbeitslosenkasse of the Canton Solothurn in the context of the bankruptcy paid to the individual firm X solvency and social security amounts and at the same time brought an action against the firm Y to the Federal Tribunal for the payment of the same amounts including interest. The Arbeitslosenkasse argued that according to Art. 333 para. 3, the company taking over the inventory is jointly liable for said amounts; this also being the case if the inventory is passed over after the bankruptcy decree has been issued.

In consideration 6 of the judgement, the Federal Tribunal came to the conclusion that this is not the case. They interpreted Art. 333 para 3 as adapted to a EU directive and a later amendment of the adapted directive, not providing for the joint liability of the buyer of the inventory, if the inventory has been bought after bankruptcy decree had been issued.

c) Text

You can find a scan (PDF) of the original text here:
E_2.23_BGE 129 III 335 Judgement of 25th March

© Prof. Jens Drolshammer,,

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