The COVID-19 (coronavirus) pandemic has led the authorities – after initially rather cautious reactions – to take various measures at an unprecedented rate, particularly at the federal level, but also in the cantons. These measures involve major interventions affecting the population and companies. This briefing provides an overview of existing and possible future measures to combat the pandemic in Switzerland, their legal ramifications as well as legal options for those affected to defend themselves against the measures imposed or to demand compensation for the loss or damage they have suffered.

Existing Measures

At the Federal Level

On 25 February 2020, the new coronavirus SarsCcV-2 was first detected in Switzerland in a person from the Canton of Ticino. At its extraordinary meeting of 28 February 2020, the Federal Council classified what was happening in Switzerland as a so-called special situation in accordance with art. 6 of the Epidemics Act (EpG). This allows the Federal Council, after consultation with the cantons, to order measures which are normally the responsibility of the cantons. In particular, the Federal Council placed an immediate ban on major events with more than 1'000 people in attendance. On 13 March 2020, the Federal Council issued the COVID-19-Ordinance 2 (COVID-19-Vo II) on the basis of the EpG, which has since been revised twelve times and is currently in force under the version dated 4 April 2020 up to and including 13 September 2020 (unless withdrawn or modified beforehand). On 16 March 2020, the Federal Council also reclassified developments in Switzerland as an extraordinary situation pursuant to art. 7 EpG. This provision is a concretisation of the constitutional emergency powers according to art. 185 para. 3 of the Federal Constitution (BV). It allows the Federal Council to order uniform measures for the entire country or for parts of the country. The COVID-19-Vo II includes various measures to reduce the risk of transmission and to combat COVID-19, in particular:

  • General ban on entry into Switzerland for persons without Swiss citizenship or other residence titles (e.g. residence permit, cross-border commuter permit or freedom of movement entitlement and professional reasons for entry);
  • Channelling air traffic for the transport of passengers from abroad at the three major national airports airports and closure of small border crossings at the discretion of the Federal Customs Administration;
  • Requirement of a SECO export licence for certain protective equipment (e.g. protective goggles, masks and clothing) and important medical goods (e.g. anaesthetics and muscle relaxants), except, in particular, for exports (i) to EU member states, Norway, Iceland, the United Kingdom and certain other countries, provided reciprocity is granted; or (ii) for personal use;
  • Various measures to ensure the supply of essential medical goods (certain active substances such as insulin or morphine, medical devices such as respirators or COVID-19 tests, and personal protective equipment and other equipment such as hygiene masks or hand disinfectants), in particular:
    • Obligation of the cantons to report their current stocks;
    • Procurement and pre-financing of important medical goods by the federal government to support the supply of the cantons, non-profit organisations and third parties (e.g. laboratories and pharmacies);
    • Allocation of important medical goods to the cantons at their request;
    • Confiscation of important medical goods from cantons, public health facilities or companies in return for payment of the purchase price if procurement cannot be guaranteed;
    • Production orders for important medical goods, if procurement cannot be guaranteed otherwise;
    • Certain exemptions from the licensing requirements for drugs manufactured for the treatment of COVID-19 (e.g. Remdesivir) or containing certain active ingredients (e.g. insulin or morphine); exemptions from the import requirements of drugs for the treatment of COVID-19;
    • Exceptional authorisations for the placing on the market and putting into service of medical devices without conformity assessment, provided that they serve (in conjunction with other conditions) to prevent and combat coronavirus.
  • Prohibition of all face-to-face events at schools, universities and other educational establishments;
  • General ban on public and private events and closure of publicly accessible facilities (with the exception of grocery stores, post offices, banks and other important institutions);
  • Prohibition of gatherings of more than five people in public places;
  • Prohibition directed at health care facilities (in particular hospitals, medical practices and dental practices) from carrying out non-urgent medical examinations and treatments;
  • Instruction to particularly vulnerable persons (i.e. over 65 years of age or with certain pre-existing health issues) to stay at home and avoid crowds;
  • Criminal sanctions: (i) imprisonment of up to three years or a fine for deliberate violation of the ban on public or private events, (ii) fines for violation of the ban on gatherings of more than five persons, for violation of the ban on the export of protective equipment and important medical goods without a licence, and for crossing a border at a closed border crossing.

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