Proceedings

1. Legal basis  

All FAC proceedings are subject to the provisions of the Administrative Procedure Act (APA, SR 172.021), unless specified otherwise in the Federal Administrative Court Act (FACA, SR 173.32) (See Art. 2 para. 4 APA and Art. 37 FACA). FACA contains only a few provisions devoted specifically to proceedings. However, these provisions do not relate to the general handling of proceedings, but rather to specific FAC-related matters (Art. 38-44 FACA).

It is important to note that provisions of federal law that regulate a procedure in more detail apply, provided that said provisions are not contradictory to APA provisions (Art. 4 APA). In addition, more recent procedural regulations contained in other Federal Acts take precedence over APA in cases where lawmakers explicitly state this to be the case. Examples of this can be found particularly in the Asylum Act (AsylA, SR 142.31). For this reason, answers to procedural questions can be found not only in APA but also in the procedural provisions contained in corresponding special legislation.

In addition to APA, the Civil Procedure Act (CPA) is important for the procedure for obtaining evidence: first of all for litigation proceedings in general and secondly for complaints proceedings (Art. 44 FACA and Art. 19 APA).

Matters pertaining to the cost of legal proceedings and compensation are addressed in APA provisions as well as in provisions contained in the Regulation of 21 February 2008 on Costs and Fees for Legal Proceedings in the Federal Administrative Court (FACFCR; SR 173.320.2). Special legislative departures are not taken into account. 

2. No mandatory legal representation

There is no requirement that clients obtain legal representation in cases submitted before the Federal Administrative Court: generally speaking, the appellant may handle the proceedings on his/her own or have a legal expert (licensed or otherwise) or layperson represent him/her. 

3. Form of submission and content of appeal petition

It is possible to submit appeal petitions to the Federal Administrative Court both by post and electronically. Substantive requirements are set forth in Art. 52 APA.

Appeal petitions submitted by post must be signed and include the challenged decision of the government authority.

Appeal petitions to the Federal Administrative Court may be submitted electronically only via a recognised secure electronic delivery platform (Privasphere or IncaMail). The appeal petition must be submitted along with any supporting documents in .pdf format and include a recognised electronic signature of the party (Art. 21a para. 2 APA). The volume of data may not exceed 20 MB. Please consult the websites of the respective providers for information on how to configure and use these platforms. The official e-mail address of the Federal Administrative Court for electronic submission of appeal petitions: kanzlei@bvger.admin.ch

An electronically submitted appeal petition is deemed to have been delivered to the e-mail address of the Federal Administrative Court by the established deadline if the recognised secure electronic delivery platform sends confirmation of delivery no later than the last day of the established deadline.

4. Delivery of decisions, rulings and correspondence

The Federal Administrative Court does not communicate with the parties by electronic means. Decisions, rulings and other correspondence are given to the main parties and other parties to the proceedings in writing and by post in accordance with established delivery channels (servicing of court documents, registered letter, first-class and second-class mail).

5. Grounds of appeal  

According to Art. 49 APA, an appeal may be filed if there has been a violation of federal law including the exceeding or abuse of discretionary powers, if there has been an incorrect or incomplete determination of the legally relevant facts of the case, or if the decision rendered is inadequate, provided no special legal derogations exist (e.g. Art. 106 AsylA). A plea of inadequacy is deemed inadmissible, however, if a cantonal authority has ruled as the appellate authority.

6. Procedural costs and advance payment; Level of costs (Art. 63 and 64 APA)

Generally speaking, fees are charged for proceedings before the Federal Administrative Court. Procedural costs are usually paid by the unsuccessful party (Art. 63 para. 1 APA). If the successful party is to be awarded compensation, then this compensation may be imposed on the lower instance or on an unsuccessful respondent (Art. 64 para. 2 and 3 APA). In order to ensure that procedural costs are covered, the Federal Administrative Court may require advance payment (Art. 63 para. 4 APA).

The Federal Act and Ordinance draw a distinction between non-pecuniary disputes (e.g. an asylum case) and pecuniary ones (e.g. a VAT case). Procedural costs for non-pecuniary disputes may not exceed CHF 5,000.- and procedural costs for pecuniary disputes may not exceed CHF 50,000.-. Within this range, the actual amount to be paid depends on the scope and complexity of the dispute, the manner in which the proceedings are handled and the financial situation of the parties (Art. 63 para. 4bis APA and Art. 2 FACFCR). 

7. Legal aid 

Waiver of procedural costs (Art. 65 para. 1 APA)
In keeping with the constitutional principles of equality before the law, general procedural guarantees and guarantee of access to the courts, procedural costs and advance payment of the same may be waived on a case-per-case basis (Art. 65 para. 1 APA). Under certain conditions, parties may also be entitled to ‘appointment of a legal representative’ (Art. 65 para. 2 APA; see below). The decision on whether to waive procedural costs is generally made at the start of the proceedings in the form of an interim ruling.

Procedural costs may be waived if the following conditions are met:

  • A request for a waiver of procedural costs is submitted
  • Indigence: A person is considered to be indigent if payment of procedural costs and legal fees prevents a party from
    being able to cover his/her basic needs and those of his/her family. The FAC assesses a person's financial situation and reaches its decision on the basis of information provided in a special form. There are different forms for applicants from Switzerland and applicants from other countries. These forms are available in German, French and Italian in .pdf format and can be downloaded from this website.
  • The case must have some prospect of success as determined in a summary examination by the instructing judge.
Legal representation (Art. 65 para. 2 APA)
In some cases, the FAC will pay lawyer's fees ‘if it is necessary in order to safeguard a party's rights’. This necessity is deemed to exist if the party's indigence prevents him/her from obtaining proper and adequately effective legal representation (see, however, the special legislative provision contained in Art. 110a of the Asylum Act). In addition to this, the same conditions as those required for the waiver of procedural costs must also be met. 

 

8. Evidence  

Basis for investigation
All relevant circumstances must be correctly and completely disclosed in order for a judgment to be rendered. As a rule, the Federal Administrative Court decides on the basis of legally relevant facts.

Cooperation obligation
This obligation applies in particular to proceedings in which parties make their own independent applications or when required to cooperate under a special legislative provision (Art. 13 APA). If a cooperation obligation exists in a specific case, this does not mean that the party must bear the entire burden of proof. The cooperation obligation refers only to facts of the case that the party is more familiar with than the court or to facts that the court would be unable to determine without the party's cooperation or only through undue efforts.

Non-legal expertise within the court
Judges and court clerks may call upon the services of experts from the FAC's General Secretariat (e.g. country analysis, business administration and economics).

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