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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 5 lit. f und g FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
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FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origins
- II. Art. 75b para. 1 FC
- III. Art. 75b para. 2 FC
- IV. Art. 197 no. 9 para. 1 FC
- V. Art. 197 no. 9 para. 2 FC
- VI. Impact Analysis
- Recommended further reading
- Bibliography
I. History of origins
A. The problems with second homes
1. Excessive Alienation of Swiss Land
1 The first federal regulation concerning second homes was introduced as a measure against the alienation of domestic soil to foreign persons in 1961. The urgent federal resolutions were transferred to the Federal Law of 16 December 1983 on the Acquisition of Real Estate by Persons Abroad (SR 211.412.41), which restricts this acquisition and makes it subject to a permit requirement. The regulation, which has since become known as the "Lex Koller", is intended to prevent the alienation of domestic soil. Since its introduction, however, it has lost much of its effectiveness. On the one hand, it is limited to foreign demand only, with the share of second homes owned by foreigners being only an estimated 20%. On the other hand, the conclusion of the Agreement on the Free Movement of Persons with the EU reduced the scope of the Lex Koller even further, because EU/EFTA citizens residing in Switzerland have been put on an equal footing with Swiss nationals.
2. Overexploitation of Swiss mountain landscapes
2 Due in particular to its limited effectiveness, the Federal Council attempted to repeal the Lex Koller in 2007, but failed to do so in Parliament. Nevertheless, its Art. 8 para. 2 and 3, intended as flanking measures, were transferred to the RPG (SR 700) on July 1, 2011. Following the rejection of the repeal of the "Lex Koller", the two norms were redrafted as an indirect counter-proposal to the second-home initiative, which has since come to fruition, and which aimed at a stronger spatial planning control of two-home construction.
3 By stopping the construction of second homes, the initiative aimed at preserving the landscape and agricultural land, thus keeping the mountain regions attractive as tourist areas and creating affordable housing for the local population. The intended goals leave no doubt that the problems associated with second homes have changed over time. In the meantime, ecological concerns have come to the fore, in particular the consumption of land for dwellings that are only used for a few weeks a year (the problem of the so-called "cold beds"), but the population has also become increasingly aware of negative economic effects on the local population and the tourism industry.
3. Adoption and entry into force of the Secondary Residence Initiative.
4 On March 11, 2012, the popular initiative "Stop the rampant construction of second homes!" was finally accepted with 50.6% votes in favor and 13.5 votes against, and the Federal Constitution was amended with the present Art. 75b and Art. 197 no. 9. Art. 8 para. 2 and 3 RPG were again repealed on January 1, 2016 in the course of the introduction of the Secondary Residence Act; parts of the content of the norm were thereby incorporated into Art. 3 and 12 of the Federal Act of March 20, 2015 on Secondary Residences (Secondary Residence Act, SHA; SR 702).
B. Implementation problems
5 Upon adoption of the initiative, its provisions entered into force immediately (cf. Art. 195 FC). Much else, however, remained unclear due to the careless, poorly structured and generally deficient formulations of the new constitutional norms. First of all, there was disagreement as to whether the initiative could be applied directly or not (cf. n. 8 et seq. below); the central term "secondary residence" was not even defined. Further problems were caused by the simultaneous use of the terms "dwelling" and "dwelling units", the double standard of calculation based on dwellings and "gross floor area", the latter term also not being sufficiently defined. Moreover, the initiative consisted of an arbitrary sequence of specifications for direct application (Art. 75b para. 1 FC) as well as mandates to the legislator (Art. 75b para. 2 and Art. 197 No. 9 para. 1 FC). The restriction of the initiative to the "construction" of second homes (cf. title of the initiative) as well as the measures to building permits caused further confusion (on all this, see II. below); as did the concentration on a "first home share plan", whereby this term was also used in a misleading manner (see III. below). In addition, the content of the implementing provisions was limited and had to be enacted within two years of the adoption of the initiative (IV. below), and the fate of building permits issued between January 1, 2013 and the entry into force of the implementing provisions was unclear (V. below).
6 The situation was further complicated by the fact that at most a handful of municipalities affected by the initiative had actually approved it. Additional frictions in the implementation and, in particular, in the drafting of the Implementing Law (SHA) were readily foreseeable. Despite numerous supreme court decisions, the problems persist.
C. Possible solutions
1. Second homes ordinance of 22 August 2012 (aZWV).
7 Even before the SHA entered into force, the Federal Council issued a Secondary Residence Ordinance on August 22, 2012, to fulfill the legislative mandate of the initiative and eliminate the most pressing legal uncertainties. This ordinance entered into force on January 1, 2013 and applied to municipalities in which the share of second homes in the total stock of dwellings was more than 20% (Art. 1 para. 1). The annex contained a list of municipalities for which there was a rebuttable presumption that the share of secondary residences was more than 20% (Art. 1 para. 2 and 3). In addition, Art. 2 contained a first (unsuccessful) definition of the term "secondary residence"; it also specified the handling and the possibilities of conversion for already existing or already legally approved apartments and hotel businesses (Art. 3).
8 The Federal Council's action was not without controversy due to its urgency in terms of time and related questions of competence (see n. 47 below). This ordinance, not to be confused with the one that now exists based on the SHA, was repealed with the introduction of the SHA on January 1, 2016.
2. Decisions of the Federal Supreme Court of May 22, 2013
a. Direct applicability
9 Finally, due to numerous applications for the construction of second homes, the Federal Supreme Court already had the opportunity in May 2013 to comment on various issues related to the implementation of Art. 75b and Art. 197 no. 9 FC. With regard to the direct applicability of the Secondary Residence Initiative, it stated that the facts and the legal consequences were clear and specific with regard to those residential uses which undoubtedly fell under the concept of secondary residences and were intended in a municipality with a clearly excessive proportion of secondary residences. The circumstances covered in this way ("cold beds") were relatively simple to delimit and not complex. Therefore, there was nothing to prevent the immediate applicability of this "hard core" of the new, special constitutional norm, even if it meant a not insignificant restriction of the property guarantee (Art. 26 FC).
10 However, Art. 75b FC would still have to be concretized to a large extent, in particular with regard to the construction of managed secondary residences, the conversion of primary and secondary residences as well as the expansion and replacement of existing secondary residences. The direct applicability of Art. 75b para. 1 in conjunction with Art. Art. 197 para. 9 subpara. 2 FC is accordingly limited to a precautionary ban on building permits for secondary residences in the affected municipalities until the implementing provisions come into force, which in effect amounts to a planning zone. This prohibition was to be interpreted broadly in order not to anticipate the legislator and to prevent a prejudice of the future implementing provisions. All in all, it was merely a temporary restriction of the property guarantee until the implementing provisions were issued. For such a precautionary and temporally limited measure, no high requirements were to be placed on the definiteness of the norm.
11 These rulings were issued despite the fact that a large part of the doctrine was against the direct applicability of the initiative. In particular, the inadequate definition of the term "secondary residence" was criticized, which made it hardly possible for the persons concerned to orient their behavior according to the new norm and to sufficiently foresee the consequences of their behavior.
b. Dealing with building permits
12 Another controversial issue was how to deal with building permits for second homes that were issued after the initiative was adopted on March 11, 2012. The Federal Supreme Court came to the conclusion that Art. 197 para. 9 FC, which provides for the nullity of building permits granted from January 1, 2013 until the entry into force of the implementing provisions, is not a deviating transitional provision, but merely intensifies the legal consequence (nullity instead of contestability). Thus, the usual principles on the intertemporal validity of the law were applied (for more details on the resulting consequences see V. below).
3. Secondary Residence Act
13 Finally, on January 1, 2016, the long-awaited SHA and the associated Secondary Residence Ordinance of December 4, 2015 (ZWV; SR 702.1) - not to be confused with the one of August 22, 2012 (n. 7 above) - came into force. The legislator thus fulfilled the mandate of Art. 197 No. 9 para. 1 FC and enacted the implementing legislation. The SHA defines, among other things, the concept of secondary residences (Art. 2 para. 4) and, in demarcation therefrom, primary residences as well as residences which are treated as equivalent to primary residences. It regulates the calculation of the proportion of secondary residences (Art. 4 f.) and contains a specification of the ban on secondary residences in Art. 75b FC (Art. 6). It also contains provisions on the construction of new dwellings (Art. 7 ff.) and the modification of existing dwellings in municipalities with a proportion of second homes of more than 20%. In addition, it contains enforcement (Art. 15 ff.), penal (Art. 21 ff.) and final provisions on implementation and transition (Art. 23 ff.).
14 The SHA was preceded by an extra-parliamentary compromise between a delegation of National Councillors and the initiative committee. In exchange for concessions on the content of the law, the initiators agreed to forego a referendum. The compromise reached was subsequently adopted by parliament without any major opposition.
15 Reactions to the result were predominantly critical. Biaggini is of the opinion that "[t]he legislative implementation (...) is not one of the finest moments of legislative methodology and parliamentarianism." Alig/Griffel even speak of the fact that the Secondary Residence Act is essentially an exception to the restriction on second homes provided for in the constitution, flanked by enforcement and penal provisions. Nevertheless, there are good reasons in favor of the compromise reached. For example, the explicit approval of the initiators is a strong indication that the SHA takes into account the spirit and purpose of the new constitutional provisions. After the initiative was adopted, it was not necessarily clear how the will of the people was to be interpreted and what objectives had been pursued with the initiative in the first place.
16 Furthermore, it was imperative to reconcile the apodictic provisions of Art. 75b FC with other constitutional norms (e.g. spatial planning, principle of proportionality, property guarantee, freedom of establishment). It would therefore be wrong to speak of a lazy legislative compromise, or - as Biaggini again points out - that the Councils have seldom been so fortunate that Art. 190 FC declares the result of parliamentary legislative work to be authoritative and exempts it from judicial review. Nevertheless, the SHA now provides a basis for dealing with the construction of second homes, on the basis of which the elimination of existing ambiguities can be tackled. The concrete effects of the implementing provisions on the individual provisions of the initiative are to be shown below on the basis of the individual norms.
II. Art. 75b para. 1 FC
A. Relationship to other constitutional norms
1. Spatial planning
17 With the adoption of the initiative, the federal government has the competence to legislate in the area of second homes. In my opinion, it represents a mere supplement to the basic legislation in the area of spatial planning according to Art. 75 RPG and is to be handled restrictively. However, it can also be considered as a comprehensive competence regarding secondary residences. In this way or another, the federal government is authorized to regulate all legal issues concerning secondary residences. Furthermore, it is a competing, i.e. subsequently derogating, competence. Cantonal law only ceased to be in force when the SHA was enacted and only to the extent that federal competence is actually exhausted. Since the restriction of the construction of second homes is a federal task, building permits in this respect can also be challenged by nature and heritage protection organizations with an association complaint pursuant to Art. 12 NHG, thus taking into account the "concerns of nature and heritage protection" (Art. 78 para. 2 FC).
18 Art. 75b FC and the implementing legislation based on it continue to leave room to the cantons and municipalities for certain regulations on secondary residences. Thus, Art. 3 para. 2 SHA allows the cantons to enact regulations that restrict the construction and conversion of dwellings more than the Secondary Residence Act provides, e.g. by means of quotas or secondary residence taxes. The enforcement of the initiative is also left to the cantons as well as the municipalities (cf. Art. 23 SHA).
2. Proportionality and property guarantee
19 In principle, all norms of the Constitution have equal priority, as long as no individual regulation is deliberately given priority by the constitutional legislator. The strict limitation of the proportion of second homes to 20% by Art. 75b para. 1 FC prevents case-by-case assessments, which on the one hand constitutes an encroachment on the property guarantee (Art. 26 FC) and on the other hand a violation of the proportionality requirement (Art. 5 para. 2 FC). There is a situation comparable to Art. 78 para. 5 FC (moor protection), in which one regulation claims priority over other constitutional norms. In such circumstances, the restrictions on fundamental rights imposed by the constitution itself must be accepted. However, the present preference applies only to the constitutional provisions just mentioned; it cannot be inferred from Art. 75b para. 1 FC that other norms should also take a back seat.
B. Scope of application
1. Material scope of application
20 Art. 75b para. 1 FC is both a conditional and a final norm. On the one hand, it requires that if 20% of the total number of dwellings are second homes (factual), then a restriction to this limit (in the sense of a ban) is provided for as a legal consequence and, as a logical consequence, no more building permits can be issued.
21 There are various demands that the same legal consequence should also occur if the share of second homes in the gross floor area of a municipality used for residential purposes exceeds 20%. This is undoubtedly true according to the wording of the norm. However, up to now there is no valid definition of the term "gross floor area" in Switzerland and a practical survey could not be provided either; accordingly, the SHA refrains from determining the gross floor area. The restriction of the areas occupied by secondary residences is only taken into account by the fact that conversions and extensions of old-law residences are restricted (cf. Art. 12 SHA). Furthermore, within the framework of the impact control (Art. 19 SHA), the annually published results of the building and housing statistics are to be used to verify whether the assumption used to justify this approach, that second homes are usually smaller than primary homes anyway, is actually true. At least the first impact report could not refute the assumption. Under these circumstances, the accusation of a breach of the constitution voiced against the legislator in connection with the waiver of the gross floor area seems, in my opinion, more dramatic than it actually presents itself.
22 The final content of Art. 75 FC, on the other hand, is manifested in the fact that it establishes the 20% limit as the ratio to be aimed for between primary and secondary residences. Thus, on the one hand, the municipalities are required to take precautions so that the threshold of 20% is not reached in the first place. On the other hand, municipalities with a proportion of second homes of more than 20% must take measures to reduce the proportion of second homes. These requirements are implemented by Art. 12 para. 1 SHA and Art. 3 para. 1 SHA, respectively, in a rather restrained manner, in that the cantons are only required to take measures if necessary.
2. Local scope of application
23 The local scope of Art. 75b FC covers the whole of Switzerland insofar as all municipalities have to draw up a housing inventory (also Art. 4 SHA; cf. III. below). Based on this, it is decided whether a municipality also falls within the scope of the conditional second home restriction according to Art. 75 para. 1 FC. If this is the case, the restriction (of course) applies to the entire municipality and not only in the construction zone. Furthermore, due to the final purpose, all municipalities are required to prevent the second home share of 20% from being exceeded (see also Art. 6 para. 1 SHA).
24 It is possible for municipalities to escape the local scope of the restriction measures if, as a result of mergers or splits, their share of second homes falls below the 20% limit. In this respect, only newly created municipalities whose territory is not contiguous and which have merged or split only for the purpose of circumventing Art. 75b can be considered abusive of the law. However, it is highly doubted whether the federal government would have any means of action against such maneuvers, if they could be proven at all. In any case, no examples are known so far.
C. Concept of "secondary residence
25 The term "secondary residence" (cf. n. 11 above) has been defined in detail in Art. 2 SHA. It is defined negatively, i.e. according to para. 4, a dwelling is considered a secondary dwelling if it is neither a primary dwelling nor equivalent to a primary dwelling.
1. Dwelling
26 Art. 2 para. 1 lit. a - e SHA lists the requirements for a dwelling, which must be fulfilled cumulatively. A dwelling is thus a set of rooms suitable for residential use, forming a structural unit, having access either from the outside or from an area within the building shared with other dwellings, having cooking facilities and not constituting a vehicle. Normally, an apartment consists of several rooms, but a single room can also meet all the requirements on its own (one-room apartment). The right to use the apartment is irrelevant, i.e. it does not matter whether the apartment is owned by or rented to the user.
2. Primary residence or secondary residence
27 A primary residence, on the other hand, is a dwelling that is used by at least one person who is resident in the municipality in which the dwelling is located (Art. 2 para. 2 SHA). In addition to various other exceptions, in particular dwellings that are permanently occupied for purposes of gainful employment and education are treated as primary residences (cf. Art. 2 para. 3 lit. a-h SHA) and are thus not frowned upon in the sense of the legislator.
28 The concept of secondary residences thus defined by the legislator is not objectionable and is likely to be in line with the objectives pursued by the Secondary Residence Initiative. In principle, those dwellings that are rarely used and/or primarily serve as capital investments and are not made available as living space for a longer period of time (so-called "cold beds"; see n. 3 above) are to be considered second homes.
3. Calculation of the proportion of secondary residences
29 Based on the aforementioned concept, the share of secondary residences can also be calculated precisely. It is calculated by dividing the number of dwellings considered as secondary residences by the total number of all dwellings (multiplied by 100). It must be taken into account that an accurate result can only be obtained if the use of the dwellings is correctly surveyed. Otherwise, the percentage of second homes is overestimated. The municipalities around the border area would do well to demand a proper census (cf. n. 43 below).
D. Ban on secondary residences and residences still permitted
30 New second homes according to Art. 2 SHA may no longer be approved in municipalities with a second home share of more than 20% based on Art. 6 para. 1 SHA. This clarifies the prohibition of second homes in Art. 75b FC, which, according to case law, already existed before the law came into force due to its direct applicability, but only comprised a "hard core" (see above n. 9 ff.).
1. New dwellings with restrictions on use
31 The prohibition covers the creation of a secondary dwelling both by means of new construction and by means of conversion of an existing structure that previously contained no dwellings. In the municipalities concerned, new dwellings may in principle only be built with a specific restriction on use (Art. 7 para. 1 SHA), the alteration of which normally requires (building) permission (Art. 13 SHA). Permitted is the use as primary residences and residences that are equal to them (lit. a) as well as a tourist managed residence (lit. b). An apartment is considered to be such if it is permanently offered for the exclusive short-term use of guests at market and local conditions and if it: a. is located in the same house in which the owner has his residence (granny annexe) or b. is not tailored to the personal needs of the owner and is managed within the framework of a structured accommodation business (Art. 7 para. 2 SHA). Pursuant to Art. 7 para. 3 SHA, the authority responsible for the building permits orders the respective restriction of use in the building permit by means of a use condition. This is a so-called prohibition of misappropriation. 2.
2. New dwellings without restrictions on use
32 Exempted from the ban on secondary residences according to Art. 6 SHA are, in particular, residences that have been approved as residences without use restrictions on the basis of an exception according to Art. 8 or 9 SHA. On the one hand, these are dwellings for the cross-financing of structured accommodation establishments, both of existing establishments and of new establishments to be built (cf. Art. 8 SHA). On the other hand, this concerns dwellings within the building zones in protected buildings or buildings that are characteristic of the locality (Art. 9 SHA), the purpose being the preservation of the building.
33 Also permissible are apartments that can be approved on the basis of a project-related special use plan pursuant to Art. 26 f. SHA, and those that fall under the transitional provisions of Art. 25 para. 2 and 4 SHA, although they are not explicitly mentioned in Art. 6 para. 2 SHA.
34 From the point of view of Art. 75b FC, Art. 8 SHA (apartments for cross-financing structured lodging establishments) is particularly problematic, because it allows hotel establishments to create new "cold" beds under certain circumstances (n. 3 above), or to convert up to 50% of their main floor space into "cold" beds. In contrast, the "warm" beds that are created in tourist apartments according to Art. 7 para. 1 lit. b SHA can be easily reconciled with the objectives of Art. 75b FC. The exceptions of Art. 9 SHA are based on the public interest in the preservation of protected buildings. Para. 1 is aimed at protected buildings or buildings that are characteristic of a particular locality within the building zones, while para. 2 is aimed at buildings outside the building zone. As a result, the exception according to para. 2 serves not only the continued existence of the building, but also that of the surrounding cultural landscape and corresponds to the concerns of Art. 75b FC.
E. Abuse of rights in connection with restrictions on use
35 Based on Art. 14 para. 1 SHA, it is possible to suspend the restriction of use as a primary residence for a certain period of time, which is intended to avoid cases of hardship that may arise in the event of a strict, schematic application of the law, regardless of the specific circumstances. A suspension is possible either in cases of personal hardship (death, change of residence or change of civil status (lit. a) or in cases of structural hardship (unsuccessful tender for lawful use (lit. b).
36 According to the Federal Supreme Court, the introduction of the possibility under lit. b in particular has increased the potential for abuse in connection with the construction of new apartments in municipalities that fall under the scope of Art. 75b FC. Accordingly, it has tightened its jurisprudence on the abuse of rights in the area of the construction of apartments in the municipalities concerned. Specifically, it must be examined ex officio whether there are specific indications that make the intention or the possibility of a primary residence use of the construction project appear unrealistic.
F. Guarantee of vested rights; old-law dwellings
37 In connection with the effects of Art. 75b FC on already existing dwellings, the guarantee of vested rights is regularly mentioned. This guarantees that legally constructed buildings, which have become illegal due to new decrees, may be maintained and continue to be used in the previous manner. It has no direct effect with regard to Art. 75b FC, because its application to existing buildings is not provided for. Existing buildings have not become illegal with the entry into force of Art. 75b FC. Art. 75b para. 1 FC only sets a maximum percentage of second homes per municipality; it cannot be said which second home has led to the limit being exceeded. A (basically problematic) retroactivity clause does not exist either.
1. Exemption clause
38 Because the grandfathering guarantee only covers the previous use, old-law dwellings that were used as primary residences can in principle no longer be converted into secondary residences after the entry into force of Art. 75b FC. Without exceptions to this rule, however, pre-existing primary residences in the affected municipalities would lose a great deal of their value, because part of the price would cover the possibility of conversion. This process would disadvantage the owners of primary residences (the local population), while due to the shortage of supply, pre-existing secondary residences - mostly with non-resident owners - would increase in value. Art. 11 para. 1 SHA therefore now provides that old-law dwellings - subject to existing or future restrictions of use under cantonal or communal law - are free in the type of residential use. In principle, they may therefore be used as primary or secondary residences without restriction, whereby a dwelling is deemed to be under former law if it legally existed or was legally approved on March 11, 2012 (Art. 10 SHA; see also n. 53 below). Such old-law dwellings may be renewed, converted and rebuilt within the framework of the existing main usable area (Art. 11 para. 2 SHA). Likewise, they may be extended within the building zones by a maximum of 30% of the pre-existing main usable area, provided that no additional dwellings are created (Art. 11 para. 3 SHA).
2. Concerns and possible consequences
39 In connection with the unrestricted conversion of old-law dwellings to secondary residences, the Federal Council fears two central undesirable developments. On the one hand, due to the shortage of second homes, there would be a great financial incentive for local residents to sell their centrally located primary homes to foreigners who would like to use them as second homes. With the profit they make, they could then build or purchase a new and larger primary residence in a peripheral location on the outskirts of the village. This leads to an emptying of the village centers and additional urban sprawl; if this process takes place within a municipality, it is called the "donut effect". On the other hand, the free conversion of primary to secondary residences in tourist communities could displace local residents because primary residences would become scarcer and more expensive.
40 In order to prevent such undesirable developments, Art. 3 para. 4 aZWV already stipulated a ban on abusive conversions. However, it proved to be unworkable due to its legal and practical shortcomings. Art. 12 para. 1 SHA now merely provides that cantons and municipalities may take measures, if necessary, to prevent abuses and undesirable developments resulting from the change of use. In this context, it is possible to restrict the conversion of dwellings previously used for primary residential purposes to secondary residential purposes as well as the modification possibilities of old-law dwellings. In addition, these changes in use and construction can be made subject to the building permit requirement if this is not already the case (Art. 12 para. 2 SHA). In its current form, however, Art. 12 SHA is largely redundant, since the cantons can already take the proposed measures based on Art. 3 para. 2 SHA, which authorizes them to enact regulations that restrict the use of dwellings more than the SHA does. Although not explicitly mentioned, the introduction of fiscal restriction measures would also be possible on the basis of Art. 3 para. 2 SHA.
41 In various quarters, the indirect design of the measures to prevent abuse and undesirable developments is regarded as insufficiently far-reaching and, in view of the meaning and purpose of Art. 75b FC, as unconstitutional. However, the feared abuses have so far largely failed to materialize, which is why cantons and municipalities have exercised restraint; an introduction on a provisional basis would also appear to be misguided. This is only because the requested measures, which would allow the conversion of primary residences into secondary residences only in exceptional cases, would be associated with serious encroachments on the fundamental rights of those affected (especially freedom of establishment, property guarantee) and the implementation would require a hardly proportionate control of personal living conditions. Moreover, the economic frictions would be difficult to control.
III. Art. 75b para. 2 FC
42 Like various other terms in Art. 75b FC, the "first-home share plan" is used in an extremely misleading manner. In the present context, the term "first-home share plan" is usually used as a synonym for first-home share regulations that determine the share of first homes in a municipality. In the legal implementation of Art. 75b para. 2 FC, however, the term is obviously understood to provide information on the type of use of all dwellings in a municipality, so that it can be determined how high the proportion of second homes is. Accordingly, it is an inventory or a register and not a planning measure. Art. 4 SHA, which implements the legislative mandate of Art. 75b para. 2 FC, therefore uses the term "housing inventory" instead of "primary residence plan". Based on Art. 4 para. 1 SHA, all Swiss municipalities are therefore obliged to draw up an annual housing inventory, irrespective of the proportion of second homes they own. This inventory must at least list the total number of dwellings and the number of primary residences (Art. 4 para. 2 SHA). Art. 75b para. 2 FC itself cannot be applied directly due to its nature as a legislative mandate.
43 Specifically, each municipality must provide the FSO with its population data annually with a cut-off date of December 31 by January 31 of the following year at the latest. By the same date, the communes must also update their data in the building housing register (GWR) (art. 1 para. 1 ZWV). Based on the commune data in the GWR, the Federal Office for Spatial Development (ARE) determines for each commune by March 31 of each year whether or not its share of second homes exceeds 20% (art. 2 para. 2 ZWV). An appeal against the ARE's decision may first be lodged with the Federal Administrative Court and then with the Federal Supreme Court in matters of public law. If a municipality is content with collecting the minimum data, however, it will regularly show a higher proportion of secondary residences than actually exists on its territory. This is due to the fact that in the GWR, only those dwellings represent primary residences that can be assigned to persons with a place of residence in the municipality. Dwellings that cannot be assigned to a person residing in the municipality are considered potential secondary residences. As a result, all apartments that are treated as primary residences according to Art. 2 para. 3 SHA are statistically counted as secondary residences, even though this is not the case. In order to avoid this, the municipalities can, in addition to the primary residences, also separately record the category of residences treated as primary residences within the meaning of Art. 2 para. 3 SHA and assign these to the primary residences. They are then no longer considered secondary residences, which reduces the proportion of secondary residences in the municipality. This is the only way to precisely determine the proportion of secondary residences (cf. n. 29 above).
44 Municipalities whose proportion of secondary residences is constantly in the limit range of 20% (so-called lift municipalities) should accordingly not be satisfied with the minimum content according to Art. 4 para. 2 SHA when collecting data for drawing up the inventory of secondary residences, but should choose the procedure according to para. 3 and additionally closely monitor the development of the proportion of secondary residences. Already a different use of a few dwellings can lead to the fact that a municipality is subject to the scope of application of Art. 75b FC or not. If the proportion of second homes falls below 20%, the basis for the restrictions on use according to Art. 7 para. 1 SHA will no longer apply. Although the legal basis for the use restriction ceases to exist, the cancellation of this condition does not take place ex officio, but an application by the owner is necessary so that the competent authority instructs the land registry to delete the note (Art. 25 para. 3 SHA). The situation is unclear if, after falling below the 20% threshold and the deletion of restrictions on use, the threshold is again exceeded. The SHA does not regulate this situation, so that these apartments are neither new nor old-law apartments. It will have to be clarified how their possibilities of use and expansion are to be treated. On the other hand, it is already undisputed on the basis of Art. 75b para. 1 FC that a building permit may not be granted for a secondary dwelling which leads to the limit being exceeded (Art. 6 para. 1 sentence 2 SHA).
IV. Art. 197 no. 9 para. 1 FC
45 With this transitional provision, the Federal Council was authorized to issue the necessary implementing provisions on creation, sale and registration in the land register by ordinance if within two years (i.e. by March 11, 2014) the legislation required to implement Art. 75b has not entered into force. Obviously, this was intended to put the legislator under time pressure. As expected, the necessary law was not yet in force at the time in question, but the Federal Council (surprisingly) acted already before and issued a first ordinance on secondary residences, which entered into force on January 1, 2013 (aZWV, not to be confused with the current ZWV; see above n. 7 f.). In doing so, it wanted to ensure an equal application of the new constitutional norms until the implementing legislation came into force.
46 However, the question arose whether the Federal Council was authorized to issue such an ordinance at all at that time. While the Federal Council considered itself competent to do so on the basis of Article 182 para. 2 FC, according to which it is responsible for the execution of legislation and the enactment of the necessary regulations, a considerable part of the doctrine was of the opposite opinion. Only an existing law would allow the Confederation to issue an ordinance on the basis of Art. 182 para. 2 FC. The Federal Supreme Court did not comment conclusively on this dispute in a diplomatic manner and merely stated that it would in any case be overly formalistic to demand that the Federal Council enact the aZWV a second time, this time on the basis of Article 197 no. 9 para. 1 FC.
47 After March 11, 2014, and until the entry into force of the law required by Article 75b FC, the aZWV was then considered an ordinance within the meaning of Article 197 no. 9 para. 1 FC, at which point it also undoubtedly had a secure basis of competence. With the entry into force of the SHA, the aZWV was finally repealed on 1 January 2016 (n. 8 above).
V. Art. 197 no. 9 para. 2 FC
48 There was also disagreement about the scope of Art. 197 no. 9 para. 2 FC prior to the Federal Supreme Court's landmark decisions. The majority of the doctrine and the cantonal courts assumed that this transitional provision clarified Art. 75b para. 1 FC and took precedence over it as a lex specialis. As a legal consequence of Art. 75b para. 1 FC, Art. 197 No. 9 para. 2 FC unambiguously stipulates the nullity of building permits only as of January 1, 2013 and not already as of the entry into force of the initiative. This leads to the compelling conclusion that the old law continues to apply until December 31, 2012 and that building permits issued remain valid.
49 However, the Federal Supreme Court did not consider Art. 197 No. 9 para. 2 FC to be a transitional norm, but rather a tightening of the legal consequence of Art. 75b para. 1 FC (nullity instead of contestability, n. 11 above). As a result, the usual rules on the intertemporal validity of the law are applied and the legality of an administrative act is assessed according to the legal situation at the time of its issuance. Changes in the law that occur only in the course of the appeal proceedings are normally not to be taken into account, unless a substantial public interest requires the application of the new law or the latter has been enacted for the sake of public policy. However, such compelling reasons, respectively an overriding public interest, did not exist according to the Federal Supreme Court.
50 Due to the direct applicability of Art. 75b para. 1 FC, the legal situation is as follows: For building applications that were granted before March 11, 2012 and subsequently challenged, the law at the time of the first-instance assessment by the cantonal authorities applies. Building permits issued after 11 March 2012 are subject to the new law; they are contestable even if they were submitted before the initiative was adopted. If the building permit was only granted by the first instance after 1 January 2013, it is null and void. A different decision is only to be taken if there are special constellations of protection of legitimate expectations and denial or delay of justice.
51 The consequence of these decisions of the Federal Supreme Court would actually be that apartments which were approved by the first instance before March 11, 2012 are also considered to be "under old law", even if they were still the subject of appeal proceedings thereafter. Art. 10 SHA, on the other hand, now states that an old-law apartment within the meaning of the law is only one that legally existed or was legally approved on March 11, 2012. The legislator did not provide any justification for this restriction.
VI. Impact Analysis
52 During the referendum campaign, the proponents of the initiative presented it as a simple means to stop urban sprawl in mountainous regions and to provide affordable housing for the local population (supra n. 3). Like other recent initiatives, it was focused more on a simple but cutting formulation in view of its chances of success at the ballot box than on seriously addressing sustainable solutions to the problems it addressed. As is often the case, the reality turned out to be far more complex than expected, and the results of the second-home initiative are accordingly mixed.
A. Economic aspects
53 The feared negative economic consequences have materialized in the affected communities - as predicted by the experts and thus unsurprisingly - although this was consistently denied before the vote. Thus, wealth inequality increased, because the unrestrictedly permitted primary residences suffered value losses compared to the contingent second residences. In other words, the owners of existing vacation homes (probably mostly foreigners) have benefited, while the local owners of primary residences are among the economic losers. In addition, unemployment has increased in the already structurally weak regions. According to the first impact analysis, however, there are no substantial economic difficulties, even if the effects of Art. 75b FC on gross value added, employment and tax revenues should become more noticeable in the future. Despite the collateral economic damage, urban sprawl did not slow down significantly in the affected communities.
54 In turn, real estate prices in the affected municipalities generally declined in the first few years after the initiative was adopted - contrary to experts' expectations. It was not until 2021, and especially under the influence of the Corona pandemic from 2020 onward, that prices reached the same level they would likely have had without the initiative. Actually, it was assumed that the bifurcation of the market into old- and new-law apartments would directly result in price increases, since even after the adoption of Art. 75b FC, 90% of transactions would still involve old-law apartments. There were two main reasons for the paradoxical development of real estate prices: On the one hand, the already mentioned economic problems of municipalities within the scope of Art. 75b FC led to a lower local demand for real estate. On the other hand, the legal and economic imponderables in connection with the initiative led to restraint in real estate transactions.
55 Further developments in the housing market of the affected municipalities are uncertain. Although it is likely that price appreciation for grandfathered housing should be delayed, exacerbated by the need for additional housing in decentralized locations due to the pandemic and the increased opportunity for home offices. Additional affordable housing for local residents, on the other hand, is not likely to occur. Old-law housing will become more difficult for locals to afford, while the market for new-law housing remains small (in part due to the shortage of building land resulting from the new RPG), so it will remain expensive. If, contrary to expectations, the stock of new-law apartments were to increase - after all, local owners of old-law apartments have a financial incentive to sell them and thus finance cheaper new-law apartments - the undesirable urban sprawl would be intensified. The aforementioned "donut effect" would occur belatedly after all. Until now, it was not or hardly detectable.
56 It cannot be reliably predicted whether the intensifying home-office trend as a result of the Covid 19 pandemic will lead to an intensification of the use of second homes or even to an increase in the number of people taking up residence in the peripheral regions, which would lead to a permanent decline in the proportion of second homes.
B. Legal aspects
57 From a legal perspective, the main objection is that the poorly thought-out wording has created plenty of legal fodder in the implementation of the initiative. According to the impact analysis of the Zweitwohnungsgesetz (ZWG), legal practice on some essential issues has already developed within a relatively short period of time. With the SHA, the parliament, in an attempt to accommodate the affected communities and their specific problems in the area of secondary residences, at least explored the limits of Art. 75b FC. This approach is also based on the fact that Art. 75b FC prevents solutions adapted to the specific situation of a municipality by deliberately undermining the principle of proportionality through the absolute 20% limit. The claim of priority over other constitutional provisions joins the inglorious list of recent initiatives that deliberately undermine the equivalence of norms and accept that elementary legal principles are undermined. This zeitgeisty phenomenon is questionable from a constitutional perspective.
58 For the future, increased attention should be paid in particular to the needs of the less touristy areas; the mountain regions affected by the initiative do not only consist of St. Moritz, Zermatt or Verbier. A pragmatic handling of the ban on second homes is particularly appropriate in peripheral, structurally weak areas, otherwise the migration of the local population will be further aggravated due to the poor economic prospects. In this context, not only the federal legislator is challenged, but also the affected municipalities should make more use of the spatial planning and fiscal options that are already available to them.
C. Résumé
59 Overall, the two goals envisaged by Art. 75b FC (stopping urban sprawl and affordable housing) have not been achieved so far. For the near future, it looks uncertain with regard to stopping urban sprawl, while affordable housing for the local population is likely to remain a utopia. However, the results of the first impact analysis are still of limited significance, especially from an economic point of view, due to the relatively short period of time since Art. 75b FC came into force; this will hopefully change in the future.
About the author
Dr. iur. Fabian Mösching, attorney-at-law, LL.M. (University of Sydney), is a law clerk at the I. Public Law Division of the Swiss Federal Supreme Court in Lausanne. He wrote his dissertation on measures to restrict second homes.
Recommended further reading
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Biaggini Giovanni, Bundesverfassung der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2017.
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Mösching Fabian, Massnahmen zur Beschränkung von Zweitwohnungen, Diss. Bern 2014.
Ruch Alexander, in: Ehrenzeller Bernhard/Schindler Benjamin/Schweizer Rainer J./Vallender Klaus A. (Hrsg.), St. Galler Kommentar, Die schweizerische Bundesverfassung, 3. Aufl., Zürich/St. Gallen 2014.
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Steffen Daniel, Der kausale Effekt der Zweitwohnungsinitiative auf Immobilienpreise, Swiss Real Estate Journal, 23 (2021) S. 4 - 12.
Wolf Stephan/Lienhard Andreas (Hrsg.), Schweizerische Zweitwohnungsgesetzgebung – inbesondere praktische Umsetzungsfragen und Rechtsvergleich mit den Grundverkehrsbeschränkungen in Tirol, INR Band 15, Bern 2014.
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