Swiss Federal Administration Research Articles

Automated assignment of judges to court panels: principles and empirical findings based on the Swiss Federal Administrative Court

Le Tribunal administratif fédéral est le tribunal le plus grand de Suisse. En 2007, il a fait œuvre de pionnier en développant un logiciel d’attribution automatique des dossiers à ses membres, logiciel qu’il utilise toujours depuis lors. Cette étude se penche sur le fonctionnement dans la pratique de ce logiciel d’attribution automatique des dossiers. Elle se fonde sur une analyse empirique de tous les jugements substantiels rendus entre 2008 et 2018 dans lesquels des données numériques d’attribution automatique des dossiers apparaissent. L’étude interdisciplinaire parvient à la conclusion que dans 45 % des cas, au moins un des membres de la Cour appelée à rendre le jugement n’a pas été choisi automatiquement, mais par une intervention manuelle. En particulier, l’étude analyse les raisons de ces interventions manuelles et en déduit les conclusions généralement applicables à la composition automatique d’une autorité de jugement.

Ungleichheit durch eine Biopolitik 2.0? Zur zunehmenden Rolle des Bioinformationsrechts anhand des EuGH-Urteils C-528/16 und des Urteils des schweizerischen Bundesverwaltungsgerichts BVGE C-669/2016

Based on reflections on the concept of biopolitics, the present paper addresses the junctions between self-determination and heteronomy in the encounter between state actors, global corporations, and the private individual. Rulings of the European Court of Justice (ECJ) and the Swiss Federal Administrative Court (FAC) serve as case studies for examining an increasing inequality caused by new technologies. Based on these case studies, we claim that the relationship between law and technology - in this case biotechnology - must be further discussed. Does the latter guide legal innovations or can it rather be described as a “co-evolution of technology and law”? We argue for finding forms of regulation that, while not avoiding inequalities in the tension between rights of freedom and duties to protect, should reduce their effects to a minimum. Keywords: bio-information law - biopolitics - health apps - inequality - quantified self - (self-)surveillance - technology law

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

The Making of a Swiss Migration Regime: Electronic Data Infrastructures and Statistics in the Federal Administration, 1960s–1990s

Abstract The article analyses the transformation of Swiss migration statistics through digital data processing in the 1970s and 1980s. It focuses on the emergence of two different modes of migration statistics management within the Swiss federal administration. First, in the early 1970s, the Swiss Federal Aliens Police implemented an electronic database with comprehensive statistics on foreigners, the so-called Central Aliens Register. It was devised as a data-driven instrument for regulating labour supply within the scope of the Western European guest worker regime. Then, in the mid-1980s, the Swiss Federal Statistical Office introduced periodical population scenario analysis. The modelling of future demographic scenarios, based on existing data, shifted the perspective towards a new global migration framework. It is shown how this computerisation of statistical data infrastructures in the 1970s/1980s enabled the combination of different regulatory regimes for population movements within the federal administration (labour/asylum), thus, contributing to the formation of a Swiss migration regime.

Data Interfaces: Tensions between Copyright and Competition Law – A New Swiss Court Practice for an Old Problem

Abstract The reconciliation of intellectual property rights laws with competition rules is a difficult task. For decades, courts and legal doctrine have been trying to draw fine lines in order to balance corresponding (yet partly differing) interests. Recently, the Swiss Federal Administrative Court ruled on the tensions between copyright and competition law, particularly assessing data interfaces in the credit/debit card payment transactions business. The Court applied a restrictive approach in respect of the exclusively protected sphere of the rightholder–its behaviour of building entry barriers for potential competitors was considered non-compliant with the Cartel Act. This contribution outlines the general principles applied in relation to the reconciliation of intellectual property rights with competition rules in the Swiss law environment and analyses the detailed, concrete reasoning of the recent decision in the light of the needs of the growing information society.

Project Success Requires Context-Aware Governance

Despite growing project management maturity, the failure rate of IT-related projects remains high. We investigated four large IT-related projects within the Swiss Federal Administration that were well-managed but still failed. We found that these projects failed because of poor project governance, in particular inadequate handling of project context by the project sponsor and steering committee. We identify five contextual factors that steering committees should focus on and provide recommendations for strengthening context-aware project governance, illustrated by their implementation in the Swiss Federal Administration.

DIE DURCHSETZUNG VON VERFÜGUNGEN NACH SCHWEIZERISCHEM VERWALTUNGSRECHT

This contribution elaborates on the rather seldom treated topic of “execution” of administrative acts which lies at the interface between the administrative law and the law on administrative procedure. Special importance hereby is attributed to remedies against decisions on the enforcement of administrative acts and other types of injunction, that are in connection with a threat of punishment in accordance with Article 292 of the Swiss Penal Code. With reference to a recent judgment of the Swiss Federal Administrative Court, the law on debt enforcement and bankruptcy is also explained pointing out the difference between the enforcement of administrative acts and the execution of contractual claims on the part of public authorities.

Organization and Information Processing: Elements of a History of Early Digitization in the Swiss Federal Administration

Since the founding of the Swiss federal state in 1848, government and administration have been constantly reorganized. One important change occurred between the 1960s and 1980s: the automation and standardization of information management. Through two cases, the Zentrales Ausländerregister (ZAR) and the Zentralstelle der Bundesverwaltung für Organisationsfragen (ZOB), this article examines the organization and mechanization of information in Swiss Federal Administration by focusing on data processing as the predominant measure for the operationalization of administrative workflows. The period between the 1960s and 1970s proved decisive in the incremental development of data processing that ultimately led to the digitization of ever larger parts of administration.

Court Denies Tax Treaty Benefits to Long Borrower of Swiss Shares

The Swiss Federal Administrative Court upheld a decision by the Federal Tax Administration to reject the tax treaty-based partial refund claims of a Luxembourg resident financial institution for Swiss withholding tax on dividends paid on stock exchange-listed Swiss shares, which Lux Bank had borrowed from an affiliated financial institution resident in the United Kingdom.

Der Kodifikationsentwurf für ein EU-Verwaltungsverfahrensrecht aus schweizerischer Perspektive

<bold>ReNEUAL Model Rules on EU Administrative Procedure – a Swiss Perspective</bold> The article analyses the possible impact of the ReNEUAL Model Rules on EU administrative procedure for Switzerland, as well as the benefits of an additional Swiss perspective in the European discussion. Switzerland is not a member state of the European Union. Yet Switzerland is so closely connected to the European Union that codification of administrative procedure would sooner or later have spill-over effects on the Swiss legal system. Conversely, Swiss public administration with its multi-jurisdictional nature and pluralisation of actors is perfectly similar to that of the European Union in many respects. Experiences gained by Switzerland in connection with the codification of administrative procedure may therefore also be of value for the project in the European Union. The authors of the ReNEUAL Model Rules deliberately drew them up as an innovative draft. In particular, this innovation manifests itself in a very broad approach which aims to comprehensively regulate as full a range of administrative activities as possible. What is especially noteworthy is the first-time attempt to regulate mutual assistance and administrative information management in a uniform and consistent manner. However, the European Parliament did not follow this comprehensive approach in June 2016 and instead suggested a modest “re-statement” of single decision-making. This pragmatic approach is strikingly similar to the concept on which the Swiss Federal Administrative Procedure Act (APA) of 1968 was based. This course of action may appear fainthearted, but from a Swiss perspective, it proved its worth step by step, since later reform steps have not been precluded. This is revealed, for instance, by the provisions on alternative dispute resolution added to the APA at a later stage. The procedural rules for Administrative Rule Making are strikingly similar to the proposals in Book II of the ReNEUAL Model Rules. They are, however not to be found in the Swiss APA, but in an act which regulates Administrative Rule Making together with the preliminary proceedings of legislation. A comparison with the Swiss legal system, therefore underlines that regulation of EU administrative procedure could be placed on an even broader basis than that proposed in the ReNEUAL Model Rules. Procedural laws in Switzerland regularly also contain provisions concerning administrative and judicial review. Bearing in mind the great fragmentation of the legal situation in the EU, a harmonisation of constitutional standards may well be useful in this respect. Besides some content-related aspects, this paper includes some critical references to the language and structure of the Re-NEUAL Model Rules, which the author considers to be in need of improvement. Even though the European Parliament is pursuing a rather modest approach for the time being, the ReNEUAL Model Rules will not forego their position as a reform agenda and point out what fields of activity of public administration should be codified for the reinforcement of democracy and the constitutional state in the medium-to-long term. However, the Model Rules not only outline a reform agenda for the EU’s procedural law, but are also an expression of a European <italic>ius commune proceduralis</italic>. They can therefore serve as a model for the member states and associated countries such as Switzerland.

Governing asylum through configurations of productivity and deterrence: Effects on the spatiotemporal trajectories of cases in Switzerland

Previous analyses of asylum seeking have drawn attention to the importance of the timing and spacing of governmental encounters. According to these accounts, spatiotemporal arrangements in the asylum procedure influence both asylum seekers directly and also the ways in which asylum seekers are presented to those with discretionary authority. Yet little research has investigated the conjunctures – the ‘meeting-up of histories’ in Massey’s (2005, 4) terms – that shape asylum cases-in-the-making. I argue that, in order to understand the governing of asylum and its sometimes contradictory effects, we need to be attentive to the material-discursive configurations of everyday legal and administrative practice. To illustrate this argument, I will outline the impact of two recent reconfigurations of the Swiss asylum procedure: a managerial emphasis on output-oriented measures in New Public Management reforms of the Swiss Federal Administration and a politics of deterrence, which has gained currency after the introduction of the Schengen area and the Dublin regulation. Drawing upon insights from extensive fieldwork inside the Swiss asylum administration, I highlight how such configurations can shape case trajectories and their outcomes in unexpected yet significant ways and thus contribute to understanding the variegated spatiotemporalities of governing asylum.

Methodical ICT Project Management

IntroductionThe contemporary reality is characterized by an increased number of problems and their interrelationship in all spheres of human activity, as well as management problems. This results in an increased risk within the organization's activity. To confine the risk, the problem solutions are more and more often \searched through establishing and management of the project [Spacek, Vacik 2016, pp. 14-30]. This results in an enhanced interest in professional methods of project management.The project management worked out a comprehensive and differentiated offer of management methods. The abundance of these methods results from the complexity and specificity of projects and from individual experiences and preferences of project managers and participants.On the one hand a comprehensive offer enables a choice of methods relevant to the projects specificity and conditions of their accomplishment, on the other hand it requires a good knowledge of a wide spectrum of existing methods, their limitations and possibilities [Trocki (ed.) 2011, p. 7].ICT projects, pursuant to a more comprehensive depiction used in the article, comprise all projects the final product of which is based on the Information and Communication Technology1 (ICT), connected with communication, collecting, processing and dispatching of information. These are projects devised to be used by external clients - public enterprises and institutions, combining the projects whose final product is mostly related to creation of software or services connected with its development, servicing and maintenance, the projects whose final product mostly comprises the hardware or services connected with it, telecommunication projects, as well as electronic and electro technical projects, or these are interdisciplinary projects in which we could hardly indicate a dominant specialty, e.g. corporation networks projects.Searching for a reply to the question how to improve implementation of ICT projects was a cause of the interest in methodologies of management of such undertakings.Until recently in Poland, to increase the effectiveness and efficiency of project management, universal methodologies such as PMBoK®, PRINCE2 or Project Cycle Management [Wyrozcbski 2010; Kaczorowska 2013; Trocki (ed.) 2015] were carried out. So studies on special, complex and detailed methods of ICT project management were undertaken with the aim to fill in the diagnosed research gap.As the projects are very often used as tools for accomplishment of the organization's objectives [Nowak, Trzaskalik, Twardoch 2013, pp. 49-64] and because of the multitude of project management methodologies, this subject should be discussed comprehensively.Selected for the analysis were MSF (Microsoft Solutions Framework) methods, RUP (Rational Unified Process) and SCRUM as representatives of ICT project management methodologies, i.e. involving the specificity of this type of undertakings. Furthermore, all methodologies selected for the analysis are based on a spiral approach to ICT project implementation (this facilitates their comparative analysis). Excluded from the analysis was the HERMES methodology - project management within ICT (worked out by the Swiss federal administration) because its scope comprises the management of single projects of ICT and ASAP Accelerated SAP - worked out by Systems Applications and Products in Data Processing because it focuses on one of the last phases of the information project lifecycle, i.e. implementation of the ready-made information system SAP R/3.The article consists of two parts - theoretical and empirical. The former comprises a survey of specialist literature. The most important results of empirical part include the general and personalized (taking into account the characteristics of organization from the ICT sector and the projects it implements) model of evaluation of the needs and selection of methodological support for ICT project management. …

Do Resources, Justice Administration Practices And Federalism Have An Impact On Registered And Sentenced Crime Prevalence?

This contribution, based on a statistical approach, undertakes to link data on resources (personnel and financial means) and the working of the administration of penal justice (prosecution, sentencing) taking into account the nationality of those prosecuted. In order to be able to distinguish prosecution and sentencing practices of judicial authorities and possible processes of discrimination, diverse sources have been used such as data from court administrations, public finances and police forces, collected by the Swiss Federal Statistical Office and the Swiss Federal administration of finances. The authors discuss discrimination in prosecution and sentencing between Swiss residents and foreigners taking into account localization and resources regarding personnel and public finances.

The Swiss court's approach to beneficial ownership

Following the conclusion of the agreement between Switzerland and the United States on the request for information from the Internal Revenue Service, the Swiss Federal Administrative Court (SFAC) has determined in a number of cases whether US persons were the beneficial owners of structures, in particular, Liechtenstein foundations, Liechtenstein Anstalts and irrevocable or revocable trusts. Based upon the principle of substance over the form, the concept of ‘beneficial owner’ refers to the economic reality as opposed to the legal from. As ruled by the SFAC, it is crucial to examine whether the founder or beneficiary of the structure ‘plays by the rules of the entity’.

Spread Trustee; Charitable Programme-related Investing; US exit taxes; Swiss Federal Administrative Court approach to foreign trusts and foundations; Singapore's approach to exchange of information; amendment to Sections 31 and 32 Trustee Act 1925; recovery of costs in probate litigation; thoughts on Sinclair v Versailles and constructive trusts generally

Spread Trustee; Charitable Programme-related Investing; US exit taxes; Swiss Federal Administrative Court approach to foreign trusts and foundations; Singapore's approach to exchange of information; amendment to Sections 31 and 32 Trustee Act 1925; recovery of costs in probate litigation; thoughts on Sinclair v Versailles and constructive trusts generally

Das Schweizerische Landesforstinventar – eine Bilanz (Essay)

Switzerland's National Forest Inventory – review and outlook (essay) The idea of carrying out a national forest inventory in Switzerland was first raised in the 1950s. It had become increasingly evident that such an inventory was lacking as a basis for evaluating the state of the forest in the whole country. But it was not until 1970 that this idea took concrete shape. And it took another ten years for the Swiss government to agree to the first inventory taking place. From the start, the National Forest Inventory (NFI) was a joint project of the Swiss federal administration and the Swiss Federal Research Institute WSL. It has now established itself as an objective source of information about the Swiss forest. On the national level, it is today the most important instrument for monitoring the sustainability of the management of Swiss forests, and it yields the main data needed for international reports on forests. The success of the NFI is at least partly due to the fact that it has met with widespread support from both the Swiss authorities and scientists. The NFI has, over the past 30 years, continuously developed both methodologically and in terms of content. Thus the first NFI's data catalogue was expanded to include, for example, numerous ecological parameters. Currently the fourth NFI is underway. It will mark the transition from a periodic to a continuous inventory. In the future, the survey results will be published roughly every three years. Reducing the intervals between inventories will, however, be associated with higher estimation errors. On the other hand, interesting new applications can be expected in remote sensing, as well as improved models of future forest development. Some new methods seem promising, like the so-called “small area estimation”, which enables conclusions to be drawn about relatively small areas. However, if the NFI is to continue to perform its tasks adequately in future, it must receive sufficient funding.

Recent decision of the Swiss Federal Administrative Court and its implications for the future of trusts in Switzerland

In its decision dated 18 March 2011, the Swiss Federal Administrative Court delivered a landmark ruling on characterization of rights of beneficiaries of a discretionary trust governed by a foreign law. The Court considered whether a bank account held in the name of trustees with UBS AG was within the ambit of a disclosure request received from the US Government investigating unpaid tax. Notwithstanding the fact that the plaintiff was within the class of objects/beneficiaries named in the trust instrument the court ruled that since the beneficiary/object had no control over the assets and income of the trust, he should not be treated as the beneficial owner of assets owned by the trust. In reaching its conclusion the Swiss Federal Administrative Court relied on the ratification in 2007 of the Hague Convention on the Law Applicable to Trusts and on Their Recognition and confirmed the wide recognition of the institution of trust in the Swiss legal order.

Institutional Design and Utilization of Evaluation

Growing interest in the institutionalization of evaluation in the public administration raises the question as to which institutional arrangement offers optimal conditions for the utilization of evaluations. Institutional arrangement denotes the formal organization of processes and competencies, together with procedural rules, that are applicable independently of individual evaluation projects. It reflects the evaluation practice of an institution and defines the distance between evaluators and evaluees. This article outlines the results of a broad-based study of all 300 or so evaluations that the Swiss Federal Administration completed from 1999 to 2002. On this basis, it derives a theory of the influence of institutional factors on the utilization of evaluations.

Embedding Evaluation in the Swiss Federal Administration

Scholars have long addressed the question of how to improve the usefulness of evaluation in the public sector. This article describes the role of evaluation within the Swiss Federation in order to investigate the conditions of evaluation use. The article is based on an examination of several offices in the federal administration. Evaluation within the Swiss federal administration shows great variety among the different units with regard to both the general understanding and the implementation of evaluation. These provide good examples for studying the relationship of purpose, utilization and institutional design in evaluation. Furthermore, decisions are often taken in the absence of basic considerations regarding the purpose or utility of the evaluation, and this substantially affects the subsequent institutional design of the evaluation. The authors recommend a clearer functional differentiation between different forms of evaluations as means for improving the evaluation measures currently used in and by the Swiss federal administration.

Effects of a lifestyle physical activity intervention on stages of change and energy expenditure in sedentary employees

Abstract Objectives: To assess the effects of an intervention in a worksite setting on changes in physical activity. It was expected that an intervention with an emphasis on daily life activities, such as brisk walking, would increase the proportion of individuals expending more than 1000 kcal per week in activities with at least moderate intensity, or influence individuals to change from one stage of the Transtheoretical Model of Behaviour to a higher one. Design: Quasi-experimental. Data were collected before and after a 4 month intervention period in 6 offices ( n =211) of the Swiss federal administration. Two offices ( n =168) served as controls. Methods: Participants completed a 7 day recall questionnaire on physical activities (daily life activities, leisure time activities, and sport) and stages of readiness for change, along with questions on demographic variables. Components of the intervention programme were: information, actions for daily life activities, fitness lessons, and counselling. Results: Between precontemplation/contemplation, preparation, and action/maintenance there was a significant difference of more than 850 kcal of energy expenditure. Baseline and follow-up examinations revealed a significant progression across the stages of change in the intervention offices. Subgroup analyses showed that the level of physical activity at baseline influenced the effect of the intervention. Exclusively in worksites with a lower proportion of sufficiently active individuals, the intervention was able to substantially increase the proportion by 21%. Conclusions: A diversified intervention programme in a worksite setting encourages participants to become more physically active during work and leisure time.