State Aid

Last verified on Tuesday 30th July 2019

State Aid: Switzerland

Marcel Dietrich, Franz Hoffet and Andreas Burger

Homburger

National state aid control - competent authorities

1. Which national authority or body is responsible for the oversight of state aid in your country, in particular the identification of new aid measures and their notification to the European Commission, the monitoring of existing aid measures for compliance with EU state aid rules and decisions, the submission of annual reports on existing aid schemes to the European Commission and cooperation more generally with the European Commission on state aid matters?

Switzerland

Switzerland is not a member state of the European Union and has no specific legislation regarding state aid. However, the absence of comparable legislation in this field of law does not mean that state aid could be granted at discretion. In particular, state aid that could distort competition in Switzerland could be caught by public law meant to provide a fair and competitive level playing field, especially with regard to state-owned companies. Further, Swiss competition law might be applicable to a limited extent.

First, with regard to the internal market, Switzerland and the European Community concluded a bilateral agreement on air transport (ATA). The ATA provides rules concerning state aid, which have been drafted along the lines of articles 107–109 of the Treaty on the Functioning of the European Union (TFEU). These rules introduced de lege state aid control in Switzerland by way of an international treaty in an important economic sector. Moreover, the free trade agreement (FTA) concluded in 1972 between Switzerland and the European Community incorporated a general rule regarding state aid. Article 23(1)(iii) of the FTA provides that any state aid that could distort competition in promoting certain undertakings or certain branches of production is incompatible with the FTA. However, this provision proves problematic. On the one hand, it does not define the consequences of a violation. On the other hand, the Federal Supreme Court provided a very restrictive interpretation of the FTA in its early case law. Therefore, in practice, article 23(1)(iii) of the FTA did not introduce state aid control legislation in Switzerland.

Second, in Swiss national legislation, two sets of rules limit the ability of public authorities to provide aid for undertakings. The first set of rules, the Law on Subsidies (LSub), ensures that financial aid and compensation from the state may only be granted under certain conditions. Under the LSub, financial aid means advantages with a monetary value that are granted to recipients outside the Federal Administration to assist the fulfilment or continuation of a task chosen by the recipient. Payments are made to such recipients to reduce or compensate for financial burdens that arise from fulfilling this task to the extent that it conforms with a public task – eg, farmers are granted subsidies for the preservation of the countryside, a public task, if they fulfil certain conditions when farming, which is their chosen task. Two specific sets of conditions have a connection with state aid rules. Based on the first set of conditions, financial aid and compensation may only be granted when they are able to fulfil their goal in an efficient and economic manner. Moreover, they must be uniformly and fairly attributed. No court has yet had to deal with this first set of conditions. The second set of conditions requires that Swiss authorities respect the principle of neutrality in competition (also called competitive neutrality). This principle is guaranteed by article 94 of the Federal Constitution. Economically, the principle of neutrality in competition is based on similar grounds as state aid legislation. In Switzerland this principle plays an important role in providing a fair and competitive level playing field: it prevents public entities from supporting specific companies, for example, public-owned companies, at the expense of other competitors. Violations of this principle may generally be challenged before the Federal Supreme Court. 

Third, in recent cases, the Swiss competition law has begun to play a limited role with regard to state aid. The Swiss Competition Commission (COMCO), in informal proceedings, has taken the view that a state-owned entity may infringe the rules applicable for market dominant enterprises if it cross-subsidises its activities on the free market with its activities on a market for which it has been attributed a monopoly. However, this view of the COMCO has not been tested in court.

Fourth, the Swiss Federal Court, in a decision of 22 May 2017, has withdrawn the award of a contract granted to a public entity, ie, the University of Zurich, in a public tender because this public entity cross-subsidised the low price offered in the tender procedure from other services for which it received subsidies and, thereby, infringed the principle of competitive neutrality.

Since Switzerland has no specific legislation regarding state aid, no authority is explicitly empowered to enforce state aid rules at national level, except in the air transport sector.

In the air transport sector, according to the ATA and the national legislation on civil aviation (LCA), the COMCO is responsible for overseeing compliance with state aid rules. To review potentially unlawful state aid measures, the COMCO acts independently of the executive body and of the other administrative entities. The COMCO has, however, no competence to directly intervene on state aid grounds. The LCA only provides that decision-making authorities shall take into account the result of the review. This constitutes an important difference compared with the European Commission. According to the ATA, Swiss authorities shall constantly monitor all systems of aid existing in Switzerland and ensure that the European Union is informed of any procedure initiated to guarantee respect of the state aid rules governing air transport. The European Union also has the right to submit observations before any final decision is taken. Upon request, it may refer the matter to a Joint Committee, which shall discuss any appropriate measures required by the purpose and functioning of the ATA. The Joint Committee is established by the ATA and is composed of representatives of the European Union and Switzerland. Its purpose is to ensure proper implementation of the ATA. It can make recommendations and decisions in the cases provided for in the ATA, including state aid cases. So far, the COMCO has never dealt with such a state aid case in the air transport sector.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

2. Does any authority monitor the national legislative process to identify potential aid measures? Does this independent authority have sufficient powers to prevent the legislature or government from adopting aid measures that do not comply with EU state aid rules?

Switzerland

In principle, the legal services of the government preparing a new law have to assure its compliance with the Federal Constitution, including the principle of neutrality. However, due to the separation of powers, they cannot coerce the parliament to adhere to the principle of neutrality or other constitutional principles. There is no independent, central authority monitoring the national legislative process to identify potential aid measures.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

3. What are the competences of the national authority responsible for state aid control, and what is the legal basis for these powers in domestic law? Does this authority have the power to grant interim measures in addition to any interim relief that may be available in the national courts?

Switzerland

There is no centralised state aid control in Switzerland. If an authority is competent to decide on questions of state aid (see question 1), the general rules of Swiss administrative law apply. Generally, parties to administrative proceedings are obliged to cooperate with the authority and have to provide all information requested. The authorities can impose interim measures if a serious disadvantage might arise without interim measure and (cumulatively) if there is an urgency to take the interim measure.

Enforcement of decisions follows the general rules of administrative law. Obligations to pay money are enforced in debt enforcement proceedings. All other obligations are enforced, as the case may be, by direct coercion, execution by substitution or criminal prosecution.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

4. Aside from the role played by the European Commission and national courts in enforcing EU state aid rules, does the national authority responsible for state aid control accept complaints made by competitors, other interested parties, or other third parties regarding potentially unlawful and incompatible aid measures?

Switzerland

In Switzerland the opportunity for competitors or other interested parties to file a complaint is governed by the general rules regarding legal standing (see question 22). State aid measures constitute no exception. Customer organisations only have a right to legal standing if a specific law provides for such a right. At present, there is no such law in the area of state aid.

In a recent case, competitors of a state-owned public company challenged the amendment of a cantonal act directly before the Federal Supreme Court. The competitors claimed that the amendment would distort competition in favour of the state-owned company. In this case the Federal Supreme Court approved the legal standing of the competitors and decided the case on its merits. Competitors could also file a complaint with the COMCO. In two recent cases, the COMCO opened informal proceedings that lead to an amicable settlement with the state-owned companies. However, according to the prevailing doctrine, there are no means for competitors to compel the COMCO to open proceedings. 

Limitation rules apply based on the general rules of administrative law. For example, the deadline to appeal against a new law infringing the principle of neutrality in competition expires 30 days after publication of this law. Complaints to the COMCO can be made any time.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

5. Does the national authority responsible for state aid regularly cooperate or exchange information with the state aid authorities in other member states? If so, are there formal structures to facilitate this cooperation and information exchange, or does this occur on a purely ad hoc basis?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

6. Which body represents your country in state aid proceedings before the EU courts?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

7. Is there a national register or other central source of data on national aid measures? Are the various state aid reports, complaints, decisions, etc, published?

Switzerland

There is no national register or other central source of data on national state aid measures available. The Federal Finance Administration, however, publishes on a non-comprehensive basis on its website details regarding approximately 300 federal subsidies as well as the overall expenditure and general allocation of the federal subsidies.

Decisions of administrative bodies, the COMCO or the courts are often published on the websites of the deciding body.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

National substantive and procedural rules

8. Describe any recent developments in substantive or procedural rules under domestic law relating to state aid.

Switzerland

There are no recent specific developments to report since Switzerland has no specific legislation regarding state aid.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

9. Is there a specific legislative or administrative scheme under national law relating to the application or enforcement of EU state aid rules?

Switzerland

Since Switzerland has no specific legislation regarding state aid, no substantive or procedural rules exist to enforce EU state aid rules at national level, except in the air transport sector. In this sector, substantive rules regarding state aid are incorporated in the ATA (see question 1). Article 13 of the ATA provides that any aid granted by Switzerland, by an EU member state or through state resources in any form whatsoever, that distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, insofar as it affects trade between contracting parties and save as otherwise provided in the ATA, be incompatible with the ATA. Aid that has a social character and is granted to individual consumers is compatible with the ATA, provided that such aid is granted without discrimination relating to the origin of the products concerned. The same applies to aid that remedies the damage caused by natural disasters or exceptional occurrences.

Other types of aid might be compatible with the ATA under certain circumstances. Article 13(3) of the ATA, mirroring article 107(3) TFEU, sets out three such circumstances:

  • aid to promote the economic development where the standard of living is abnormally low or where there is serious underemployment;
  • aid to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of the European Union or Switzerland; and
  • aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

10. Are there national rules or guidelines relating to the implementation of EU state aid rules, in particular EU guidelines?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

11. Are there national rules or guidelines relating to the process of applying for, and the granting of, state support?

Switzerland

The Law on Subsidies (see question 1), which is a framework law, sets the general rules applicable for the provision of subsidies contained in other Swiss federal sector legislation (eg, the legislation for farmers). It is further specified in the relevant sector legislations.

Applications for subsidies can be submitted by any person who fulfils the conditions of the relevant sector legislation. The applicant must file a formal application and fully cooperate with the attributing authority. Financial assistance, or compensation to individual applicants, is generally awarded by means of a binding order. Exceptionally, it may also be granted by means of a public contract.

Generally, subsidies are granted in cash and are conditional upon the recipient fulfilling a pre-defined task. If the task is not fulfilled or the subsidy is used for another purpose, the authority is entitled to ask for repayment of the subsidy, including interests of 5 per cent counted as from the original day of payment by the authority.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

12. How is the concept of "service of general economic interest" (SGEI) defined on the national level? Did the definition recently lead to disputes, and, if so, how was the dispute adjudicated?

Switzerland

Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly are subject to the rules contained in the ATA. However, the concept of SGEI is not defined at national level and there has not been any dispute with regard to this notion recently. 

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

13. Do any studies on national enforcement of EU state aid rules exist? If so, describe the main subjects and results of these studies.

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

Role of national courts

14. Do all national courts have jurisdiction to apply state aid rules? Or do certain dedicated courts have specific jurisdiction for state aid cases?

Switzerland

To the limited extent that state aid rules are relevant in Switzerland, all Swiss courts have to apply the rules. There are no dedicated national courts for questions of state aid in Switzerland. Any administrative matters of the federal level can generally be brought before the Federal Administrative Court. Administrative matters of the cantonal level can be brought before the cantonal administrative courts. The highest Swiss court is the Federal Supreme Court, which can generally decide on cases of both the cantonal and federal level.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

15. Can the judgment of a national court on a state aid matter be appealed? If so, what grounds of appeal are available, and which court can hear the appeals? Does an appeal of a recovery order entail an automatic suspension of the obligation to recover unlawful aid (not notified) pending the outcome of the appeal?

Switzerland

As a general principle, any decision of a Swiss authority (being the first instance) may be challenged via the competent Swiss superior authority or the competent Swiss courts. Most judgments of lower courts in Switzerland can be appealed before the Swiss Federal Supreme Court. However, appeals before the Swiss Federal Supreme Court do generally not have a suspensive effect.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

16. Do national courts sometimes confuse the concept of unlawful aid with incompatible aid?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

17. Do national courts sometimes confuse the concept of new aid with existing aid?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

18. Do national courts traditionally refer questions regarding the interpretation of EU state aid rules to the Court of Justice? Provide any notable examples of preliminary references made on state aid questions.

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

19. Do national courts use the possibilities offered by article 29 of Regulation 2015/1589 (Procedural Regulation) providing for the amicus curiae conditions in state aid matters? Has the European Commission submitted written observations to national courts and asked authorisation to appear in court hearings?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

20. Describe recent developments regarding state aid cases before national courts.

Switzerland

Case law on state aid is very scarce in Switzerland. A development worth mentioning is the COMCO's view that it is competent under certain circumstances to decide on the compatibility of cross-subsidies of state-owned entities (question 1).

There have been several cases in which the Swiss national courts have dealt with the principle of neutrality in competition. In particular, the Federal Supreme Court confirmed the lawfulness of a cantonal act allowing a state-owned company, to which an exclusive right was granted for a specific service (building insurance), to expand the range of services it offered on the free market (Decision of the Federal Supreme Court, 3 July 2012, Case 138 I 378). In terms of distortion of competition, the Federal Supreme Court stated in this landmark case that the contemplated expansion of the field of activity did not raise concerns, since the cantonal act fully complied with the principle of neutrality in competition. The Federal Supreme Court examined in particular the possibility of cross-subsidisation or unbalanced distribution of fixed costs, as such behaviour would not be in line with the principle of competitive neutrality. Indirectly, the Federal Supreme Court therefore confirmed that distortion of competition resulting from state activity would be unlawful. In its decision of 22 May 2017 (case 2C_582/2016), the Federal Supreme Court reiterated this line of reasoning when it withdrew a contract awarded to the University of Zurich in a public tender because this public entity could only offer a low price because it cross-subsidised the offer with other activities for which it received public funds.

In the air transport sector, the European Community and Switzerland may request the Joint Committee to discuss any appropriate measures required by the purpose of the state aid rule incorporated in the ATA. However, no such case has occurred thus far. Moreover, because of the very restrictive interpretation of the FTA by the court, the scope of article 23(1)(iii) FTA is merely programmatic (see question 1).

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

21. Under national procedural rules, can a government measure be challenged directly in court on the grounds of illegal state aid, or do applicants first have to go through a preliminary administrative review procedure? If so, describe the steps involved in this procedure.

Switzerland

In Switzerland, judicial review is generally conditional upon the existence of a decision in an individual case. As a general principle, any negative decision of a Swiss authority (being the first instance) may be challenged via the competent Swiss superior authority or the competent Swiss courts. However, in certain circumstances, a cantonal legislative act may be directly challenged before the Federal Supreme Court in order to examine its conformity with the Federal Constitution. Typically, a new cantonal act regarding a state-owned company that raises concerns relating to competitive neutrality could be challenged before the Federal Supreme Court.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

22. Under national procedural rules, who has legal standing to challenge a government measure in court on the grounds of illegal state aid?

Switzerland

Under Swiss law, as a general principle, anyone has a right of appeal who (i) has participated, or has been refused the opportunity to participate, in proceedings before the lower instance, (ii) has been specifically (ie, more than the general public) affected by the contested ruling, and (iii) has an interest worthy of protection in the revocation or amendment of the ruling. If a norm raises concerns regarding competitive neutrality, competitors affected by said norm generally have the right to challenge the measure before court.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

23. Can a national authority argue in domestic court proceedings that a particular measure contains unlawful state aid, or are there any procedural bars to doing so?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

24. What are the limitation periods under national procedural rules for a party seeking to invoke unlawfulness under state aid rules in domestic court proceedings?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

25. Does any provision of national law prevent an individual with standing from bringing state aid proceedings in the domestic courts concurrently with an investigation by the European Commission (eg, if the individual has complained to the European Commission in parallel, or the European Commission has started an investigation on its own initiative)?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

26. Under which circumstances will a national court stay proceedings as to the existence of state aid pending a European Commission investigation?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

27. What are the consequences for national courts if the European Commission has already come to the preliminary conclusion in its opening decision that the measure constitutes incompatible state aid?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

28. How do national courts react to the Deutsche Lufthansa case? By referring matters to the European Commission (for amicus curiae support) or to the Court of Justice of the European Union (CJEU) for a preliminary ruling under article 267 TFEU?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

29. What is the burden of proof in state aid cases before national courts?

Switzerland

As a general rule, the administrative Swiss courts of first instance, when hearing cases, carry out a comprehensive review of the relevant facts and legal provisions. The parties to the proceeding are obliged to cooperate in the establishment of the facts.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

30. In light of the EU law obligation on national courts to protect the rights of individuals affected by the unlawful implementation of state aid, what are the requirements under national law for a plaintiff seeking interim measures in the courts, in particular to prevent the grant of aid? In what form and under what circumstances can interim relief be granted?

Switzerland

Given that Switzerland is not a member of the EU, the EU law obligations are not applicable to Swiss courts. In theory, a plaintiff claiming the illegality of a subsidy granted to a third party under Swiss national law might ask for interim measures if a serious disadvantage might arise without interim measure and (cumulatively) if there is an urgenc requiring that the interim measure be imposed. 

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

Consequences of violation of state aid rules

31. What remedies are available to a national court if it determines that a non-notified measure contained state aid?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

32. In light of the EU law requirement that national courts must, in principle, order the full recovery of unlawful state aid from a beneficiary, are there any domestic law provisions that may hinder a national court from ordering the recovery of non-notified state aid? Do national courts set aside such domestic law provisions as required by the Court of Justice’s case law?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

Enforcement by the European Commission

33. Would the national court necessarily declare a guarantee invalid if it secures a loan constituting aid and was granted in breach of article 108(3) TFEU? Does it make a difference if the only aid beneficiary is the borrower and not the lender?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

34. How can a competitor of the beneficiary or other affected third parties claim compensation from the authority granting the state aid for damages caused by the aid? Explain the steps involved in bringing such an action for damages. Explain the steps involved in bringing such an action for damages and how national courts have applied the criteria of the relevant EU case law.

Switzerland

According to the general rules of the Swiss Act on Liability of the State, the Swiss state must compensate third parties for damages caused unlawfully by an official. These conditions set a high threshold. It is not sufficient that a court ultimately finds the state aid to be illegal. Rather, it is also required that the official himself acted unlawfully by infringing a fundamental official duty. It is very rare that the Swiss state has to make compensations under the Act of Liability.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

35. How can a third party claim compensation from the member state for damage caused by failure to respect the standstill obligation?

Switzerland

Under the general rules of the Act on Liability, third parties may claim compensation for damages caused unlawfully by an official (see question 34).

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

36. Under national law, can a third party bring damages actions against the beneficiary?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

37. Under national law, how can a beneficiary bring damages actions against the member state as per the SFEI case law of the Court of Justice for having unlawfully granted aid? How do national courts avoid the risk of circumvention of EU state aid rules?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

38. What are the consequences of a violation of EU state aid rules for the validity and enforceability of the aid measure under national law? Are the consequences the same for unlawful aid that was not notified to the European Commission as for aid that the European Commission has ultimately determined as incompatible with the internal market?

Switzerland

EU state aid rules are not applicable in Switzerland; therefore, violations of these state aid rules are largely theoretical and have no practical relevance. In Switzerland, a company alleging to be affected by a distortion of competition comparable to unlawful state aid could challenge the measure at stake based on the principle of neutrality in competition. Subject to the facts of the case, such a complaint could potentially lead to the withdrawal of the aid measure and the obligation to reimburse the subsidy to the authority, but generally without interest.

In the air transport sector, the consequences of an unlawful aid measure would have to be dealt with by the Joint Committee. The ATA states that the Joint Committee shall discuss any appropriate measures required by the purpose and functioning of the ATA. It shall, moreover, make recommendations and decisions, and such decisions shall be put into effect by the European Union and Switzerland in accordance with their own respective rules.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

Recovery of state aid

39. What are the consequences of a violation of EU state aid rules for the validity of a government regulation or contract containing the aid measure, and for subsequent regulations or contracts linked to the aid measure? Are the consequences the same for unlawful aid that was not notified to the European Commission as for aid that the Commission has ultimately determined to be incompatible with the internal market?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

40. Describe any major state aid investigations opened by the Commission against your country over the past 12 months. State whether these investigations were specific to your country or part of a broader investigation into several member states.

Switzerland

Given that Switzerland is not a member of the EU, the European Commission has no jurisdiction over Switzerland in EU state aid cases.

In the air transport sector, there has been no request of the European Commission to the Joint Committee regarding state aid to date. 

Under the FTA (see question 1), the European Commission, in 2005, made a request to the Joint Committee of the FTA regarding company tax regimes of Swiss cantons. As it was not possible to find a solution in the Joint Committee, the European Commission decided in 2007 that certain of the cantonal tax regimes constituted state aid incompatible with the FTA and asked Switzerland to amend its laws. This decision was, however, not binding upon Switzerland.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

41. Has the European Commission suggested appropriate measures concerning existing aid measures in your country over the past 12 months?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

42. Has the European Commission ever opened specific investigations against your country following a sector inquiry?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

43. Has your country ever been subject to an injunction by the European Commission to suspend or provisionally recover aid under article 13 of Regulation 2015/1589?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

44. Has your country ever been subject to an infringement procedure under article 108(2) TFEU and article 260 TFEU?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

45. Has the European Commission ever undertaken on-site state aid monitoring visits based on article 27 Regulation 2015/1589 (previously article 22 of Regulation 659/1999)? How were the visits carried out? What measures were taken to assist the officials and experts carrying out the visit?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

Main areas of state aid

46. Which national authority orders the recovery of state aid following a European Commission decision, a judgment of the Court of Justice, or a national court judgment?

Switzerland

Given that Switzerland is not a member state of the EU, the European Commission has no power to decide upon the recovery of state aid in a Swiss case.

As a general rule, the authority who has granted the payment may recover it by means of an administrative order. Recovery is subject to payment of an interest of 5 per cent per annum. According to the general rules of Swiss administrative law, the national authority that ordered the repayment of the funds is competent to enforce its own decision.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

47. What procedural or administrative actions are contemplated in the national law for the recovery of unlawful or incompatible state aid?

Switzerland

According to the general rules of Swiss administrative law, obligations to pay money are enforced in debt enforcement proceedings. They can be initiated by the authority that ordered the repayment of the funds. 

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

Other

48. What actions are available to the national recovering authority seeking to force an unwilling beneficiary to refund the unlawful and incompatible state aid?

Switzerland

According to the general rules of Swiss administrative law, obligations to pay money are enforced in debt enforcement proceedings.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

49. Can an individual with standing bring an action in the national courts for the purpose of: challenging the validity of the national recovery order implementing the European Commission’s recovery decision; or suspending the national recovery order pending a final decision either on the validity of the national recovery order itself, or on the validity of the European Commission’s recovery decision?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

50. Can third parties with standing obtain a mandatory order from the court that forces the relevant national authority to recover funds from a beneficiary of incompatible state aid where the former has failed to implement a recovery decision by the European Commission?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

51. What defences by beneficiaries against recovery have been accepted by national authorities or courts?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

52. Provide information on any other special features of your country’s state aid regime not covered above.

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

53. What is the situation under national law if recovery was ordered by a national court owing to the violation of the standstill obligation but the aid is later declared compatible with the internal market by the European Commission?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

54. How do national courts apply the CELF I case law (Case C-199/06)?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

55. How do national courts handle cases where the European Commission has not yet decided on compatibility?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

56. Are the recovery interests paid by a beneficiary tax deductible under national tax rules?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

57. Is aid that was granted in the form of a fiscal measure always recovered through a new tax assessment, or do the national authorities use the freedom of choice under EU law to recover through the easiest available and most efficient method, even if not fiscal?

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

58. Which sectors have received the highest amounts of aid in the past five years?

Switzerland

The main sector receiving subsidies, direct payments, in Switzerland is the agrarian economy. Direct payments to this sector amounted in recent years to between 2.5 and 3 billion Swiss francs per year (2018: 2.8 billion Swiss francs).

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

59. Provide information on the amounts of state aid paid out under approved state aid schemes and individually approved state aid for the past five years.

Switzerland

Not applicable.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

60. Provide information on any other special features of your country’s state aid regime not covered above.

Switzerland

To date, state aid legislation has only played a very minor role in Switzerland. Articles 13 and 14 of the ATA have never led to any proceeding.

Under Swiss national law, the principle of neutrality in competition was recently at stake in the insurance sector, where both the COMCO and the Federal Supreme Court examined the expansion of activities of state-owned companies in this economic area. Further, the Federal Supreme Court made it clear that offers in public tenders need to be excluded if they are cross-subsidised and, thereby, infringe the principle of neutrality.

Answer contributed by Marcel Dietrich, Franz Hoffet and Andreas Burger

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