Susanne Leuzinger, Die Errichtung des Eidgenössischen Versicherungsgerichts vor 100 Jahren und die Entwicklung der Verwaltungsrechtspflege im Bund, Schweizerische Zeitschrift für Sozialversicherungsrecht und berufliche Vorsorge (SZS) 2017, pp. 587 – 616 (excerpt: pp. 588-606)
Susanne Leuzinger – Errichtung des eidg. Versicherungsgerichts
Background
In Switzerland, the Federal Supreme Court is the sole court of supreme jurisdiction. Other countries, by comparison, have chosen models involving multiple supreme courts (such as top-level courts respectively competent for specific areas of law or an independent constitutional court) which in some cases are geographically distributed around the country. There are both quantitative and qualitative reasons apparent for why Switzerland has limited itself to one single Supreme Court. Initially, it had modest jurisdictional powers and the Court’s workload was low due to the country’s relatively small population. With the gradual expansion over 170 years now, it suggested itself to charge the existing court with additional judicial tasks. The idea of creating a separate supreme court and separate track with administrative jurisdiction was seriously debated as different procedural rules would apply. The decision was ultimately made to integrate jurisdiction in administrative law and eventually in social security law into the Federal Supreme Court (see Part I A. 3.2). An important motive to do so was that federal judges should not lose sight of the interrelationships between the various fields of law. The proposal of centralising the location of the Court and giving up the division in Lucerne – as the Federal Supreme Court had wanted – was rejected on grounds that the federal courts are distributed throughout the country in the spirit of federalism. It cannot be argued, however, that the concentrating supreme jurisdiction within a single court is in line with general Swiss legal culture, as there are cantons with one, two or even three superior courts, some with different locations.
An account is given below of the historical developments that led to top-level court jurisdiction now being concentrated within the Federal Supreme Court and to establishment of a second Supreme Court location in Lucerne in addition to its seat in Lausanne.
Summary
In the early 20th century, compulsory accident insurance was introduced as the first social insurance scheme at the federal level. An independent court appeared to be indispensable to afford legal protection in disputes over the planned social security benefits. Initially, the Federal Council suggested to assign the task to the Federal Supreme Court. The government was hesitant to create new specialised courts of law of potentially competing jurisdiction with regular ordinary courts, potentially creating confusion and uncertainty rather than helping those seeking judicial relief. Claim procedures were to be made simpler than that for the Federal Supreme Court. Thus legislators decided to create a new Federal Insurance Court. This new court had its seat in Lucerne, which had been only narrowly edged out for becoming the seat of the Federal Supreme Court, which went to Lausanne. In addition, the public institution that administers the accident insurance scheme was also based in Lucerne as federal institutions so far had been under-represented in Central Switzerland. The court commenced its operation in late 1917, and was made responsible for all new branches of social security over the years. At the time when the compulsory accident insurance scheme and the Federal Insurance Court were created, the introduction of general jurisdiction for administrative law at the federal level was also postulated in view of expanded responsibilities of the Federal Administration. The procedure was to be simpler than in civil proceedings, so the Federal Council considered the option to equally create a specialised court. This would require a constitutional amendment and thus create a considerable hurdle. It was not until the Implementation Act of 1928 that it was decided that general administrative jurisdiction, which was still limited to a few types of cases, should be integrated and based with the Federal Supreme Court in Lausanne. The differences between civil and administrative justice were no longer emphasized, but rather the advantage of proximity of courts with constitutional jurisdiction, for which the Federal Supreme Court was already responsible, and administrative jurisdiction. Judges of a special court would also lose sight of the interrelationships with other areas of law, it was argued. The organization of the courts was again discussed in the run-up to the 1968 reform extending administrative jurisdiction to all types of cases, (expansion of the Federal Insurance Court to become a general Federal Administrative Court and creation of a Federal Administrative Court existing alongside the Federal Supreme Court and Federal Insurance Court). The Federal Insurance Court at the time was in favour of merging the two courts in the interest of unitary jurisdiction, but the Federal Supreme Court opposed a move to Lausanne due to anticipated resistance on the part of Central Switzerland. In a spirit of compromise, the Federal Insurance Court was formally declared an organizationally independent social security department of the Federal Supreme Court while retaining the two sites in Lausanne and Lucerne. In the judicial reform Act of 2007, the Federal Insurance Court and Federal Supreme Court were merged and all supreme court powers were concentrated within the Federal Supreme Court. The main motivation for this were improved coordination of jurisdiction between all areas of law and enabling personnel to work for both courts. On the basis of federalist considerations however, the Lucerne location was retained.