INTRODUCTION

OVERVIEW

In Switzerland, we have to distinguish between two normative levels. On the regional level, each of the 26 cantons has its own system of State liability. On the national level, the Swiss Confederation has its own legislation. In the following, we will focus to a large extent on the liability of the Confederation and make only sporadic allusions to cantonal law.

The main text on federal State liability is the State Liability Act from 1958 (FRA). In addition to this text, various other Acts contain norms on the liability of the Confederation. The Federal Act on Assistance to Victims of Criminal Offences (FAACO) guarantees damages, tort moral and other forms of help to victims of physical and psychological harm or of attacks on their sexual integrity. If the tortfeasor is not able to provide the victim with such aid, it falls to the cantons or the Confederation to step in. The Military Act imposes upon the federal State liability for damage caused to third persons by members of the army or by troops (art 135 FAAMA).

Certain other Acts establish the liability of the Confederation not as a State, but as the keeper of private enterprises. According to the Railway Act, the keeper (détenteur/Inhaber/titolare dell'impresa) of the enterprise is liable for damage which is the result of a characteristic risk of the enterprise (art 40b FAR). As the Confederation is the exclusive shareholder of (by far) the most important railway company (Chemins de fer fédéraux/Schweizerische Bundesbahnen), it is indirectly the main addressee of this Act. A comparable solution has been adopted for electric power installations. According to the Federal Act on Electric Power, the keeper is liable for physical harm caused by the installation unless he proves that the damage was due to vis major, fault or negligence of third persons or grave negligence of the victim (art 27 FAE). As the cantons and communes are largely involved in the running of electric power installations, they are at least economically concerned by this Act.