SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
Article 126 (1) of the SCCP allows the court to sus- pend proceedings where this is necessary for rea- sons of expediency, particularly where the decision depends on the outcome of another case. Furthermore, Article 127 (1) of the SCCP provides that ‒ if several related actions are brought before different courts – any court seised subsequently may transfer the action to the court first seised (with the latter’s agreement). General Right of Action for Associations Article 89 of the SCCP permits associations and other organisations of national or regional importance to bring actions in their own name against violations of the personality rights of their members, if the organisa- tion is empowered under its articles of association to defend the interests of a specific group of people. This mechanism is, however, limited in scope and does not allow for monetary damages. Under Article 89 of the SCCP, any claim for compensation is excluded, as organisations can only seek an injunction, a cessation of the disturbance, or a finding that the disturbance is unlawful. To date, Article 89 of the SCCP has thus been of little practical significance. Special Rights of Action for Organisations In addition to the general right of action for organisa- tions provided for in Article 89 of the SCCP, there are special rights of action for organisations, which are dispersed in various laws and which may be more or less restrictive than the rule set out in Article 89 of the SCCP. Notably, Article 7 (1) of the GEA grants organisations that have existed for at least two years and that aim ‒ under their articles of incorporation – to promote gender equality or defend workers’ interests to bring an action in their own name for a finding of discrimi- nation (including gender pay gaps and other forms of unequal treatment) if the outcome is likely to impact a considerable number of employment relationships. These associations benefit from certain procedural facilities (free of charge, ex officio rule, simplification of evidence). In matters of unfair competition, Article 10 (2) of the UCA permits professional and trade associations that
are authorised under their articles of association to safeguard the economic interests of their members – as well as organisations of national or regional impor- tance that, in accordance with their articles of asso- ciation, are dedicated to consumer protection – to bring action if there is a threat to or damage sustained by customer bases, credit or professional reputation, business operations or economic interests due to an act of unfair competition. Associations may only seek prohibition, cessation or recognition of the unlawful- ness of unfair conduct, and the members must then each assert their individual financial claims. Furthermore, professional and economic associa- tions, consumer protection organisations, employ- ers’ and employees’ associations, and certain asso- ciations for the disabled have various rights of action under Swiss law. According to Article 56 (1) of the TmPA in conjunc- tion with Articles 52 and 55 of the TmPA, professional and trade associations authorised by their statutes to safeguard the economic interests of their members – as well as organisations of national or regional impor- tance dedicated by their articles to the protection of consumers – can initiate proceedings for declarations, cessation, prohibition, or requests for information related to indications of source, guarantee marks, or collective marks. Under Article 15 (2) of the Participation Act, employ- ers’ and employees’ associations can also bring actions to establish infringements of the Participation Act’s provisions. Additionally, Article 357b of the SCO enables the con- tracting parties to stipulate in such a contract a right to take joint action directly against bound employers and employees to ensure compliance with the clauses of the collective employment contract ‒ particularly regarding the formation, the nature, and the termina- tion of employment relationships. Finally, in cases of discrimination affecting a substan- tial number of persons with disabilities, Article 9 of the Disability Discrimination Act (DDA) grants organisa- tions for persons with disabilities – operating through- out Switzerland and established for at least ten years
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