This article summarises key amendments to Swiss environmental laws which either came into effect recently or will come into effect in the foreseeable future. These include efforts to reduce CO2 emissions, the decision to revert to the original scale system for energy labels, the modification of Annex 1 of the Prior Informed Consent Ordinance and the introduction of new regulations for the export of certain hazardous plant protection products which may endanger human health or the environment.
Swiss voters recently rejected a popular initiative that aimed to tighten the responsibilities of Swiss-based companies with respect to their global activities. One key element of the initiative was the introduction of a legal obligation on Swiss-based multinationals to respect international environmental standards. Both the federal government and Parliament considered the initiative to be too far reaching. Therefore, Parliament has presented a counter-proposal that will enter into force if no referendum is held.
The Swiss emissions trading system (ETS) is an important market-based instrument for climate protection. It serves to reduce the volume of greenhouse gases produced by Swiss companies with particularly high emissions. Since 21 September 2020, Switzerland and the European Union have enabled emissions allowance transactions between the Swiss ETS and the EU ETS.
The Federal Department of the Environment, Transport, Energy and Communication recently launched the consultation process for a partial revision of the CO2 Ordinance. Amendments to the ordinance are necessary to extend certain climate protection measures until the end of 2021, as recently decided by Parliament.
This article summarises key amendments to Swiss environmental laws which either came into effect in recent months or will come into effect in the foreseeable future. Recent developments in this area concern, among other things, CO2 emissions, waste and recycling, contaminated site and soil protection, genetic engineering and new statutory limitation periods.
In 2019 the Private International Law Act was revised with the aim of improving and facilitating the recognition and enforcement of foreign bankruptcy rulings. Foreign liquidators can now forgo the previously mandatory ancillary bankruptcy proceedings by filing a petition with the Swiss courts. Recent experiences have shown that the Swiss courts will normally grant such leave if they are satisfied that no privileged or secured creditors in Switzerland exist.
Company boards of directors have a duty to continuously monitor the company's financial situation and take certain measures if it gets into financial difficulties. Given the extraordinary circumstances caused by the COVID-19 pandemic, the government has temporarily suspended their duty to notify the bankruptcy court in the event of imminent overindebtedness where there is a possibility that this situation can be remedied after the crisis.
Originally, unlike in other jurisdictions, the purpose of a moratorium in Switzerland was not necessarily to continue doing business, but rather to find a better way to liquidate a company; however, this has changed as a result of the COVID-19 crisis. There is now another type of moratorium under Swiss law (although probably only until 20 October 2020), which is intended to promote restructuring.
The general view in Switzerland is that cryptocurrencies are intangible assets sui generis and as such can be subject to regular debt enforcement and insolvency proceedings in Switzerland (provided that these cryptocurrencies have a financial value). This article highlights the particularities to be considered when cryptocurrencies are the target of an attachment procedure (ie, a freezing order) in Switzerland.
The recent insolvency of German-Swiss cryptocurrency mining venture Envion AG inevitably begs the question of how cryptocurrencies should be treated in debt enforcement and insolvency proceedings. Further, the fact that cryptocurrencies have a number of particularities which distinguish them from other asset categories raises numerous questions relating to (for example) the seizure, attachment and liquidation of cryptocurrencies from a Swiss insolvency law perspective.
In February 2021 the Economic Affairs and Taxation Committee of the National Council surprisingly decided to include the initiative to temporarily prohibit the acquisition of business premises by persons abroad in the revised urgent COVID-19 Act instead of amending the Lex Koller through the ordinary legislative process. However, the Council of States and the National Council recently rejected the proposal. Despite this pleasing result, the topic remains on the agenda.
The Legal Affairs Committee of the National Council recently submitted an initiative that would temporarily prohibit the acquisition of business premises by persons abroad. The proposal claims that it will mitigate the negative impact of the COVID-19 crisis by preventing foreign investors from acquiring financially distressed Swiss companies at low prices. However, as foreign investors improve the sales conditions for such companies by fostering demand, the amendment would actually be counterproductive.
The proposed COVID-19 Business Rental Act has failed in Parliament and is thus off the table on a national level. The main arguments for the dismissal included the retroactive intervention in private law contracts and the legal uncertainty with regard to the question of whether the proposed act had a sufficient constitutional basis. However, the topic of COVID-19 rent reductions will likely lead to court decisions in the future.
The Federal Council recently submitted to Parliament a preliminary draft federal act on rent payments during the COVID-19 lockdown and opened the consultation procedure with the cantons, political parties and interested organisations. The act is a political decision and its constitutional basis is questionable. Further, a number of the suggested provisions leave room for improvement.
Numerous shops, restaurants and other facilities throughout Switzerland have had to close their businesses due to emergency regulations issued to combat COVID-19. This has led to the question of whether the tenants of such premises are still obliged to pay rent or whether they are entitled to a full or partial rent reduction. Despite many opinions having been expressed in the legal community and by politicians, this question remains as unanswered as it was at the beginning of the lockdown.