Federal Supreme Court, 14.01.2026, 9C_189/2025
Facts
Co-owners are challenging the official valuation of their apartment in the canton of Grisons, which was set in 2020 by the Real Estate Valuation Office (hereinafter: the Office). After their objection and subsequent appeal to the Cantonal Administrative Court were rejected, they appealed to the Federal Supreme Court for the first time. The Court upheld their appeal (9C_634/2022), noting several procedural flaws, including a violation of the right to inspect the case file, and remanded the case to the Administrative Court for a new decision.
In its new ruling, the Administrative Court again rejected the appeal, considering that the procedural flaws identified by the Federal Supreme Court had been cured during the cantonal appeal proceedings. The owners appealed to the Federal Supreme Court a second time.
Law
The Federal Supreme Court reiterates that the right to be heard is a formal right. Its violation generally results in the annulment of the contested decision, regardless of the chances of success on the merits.
A violation of the right to be heard, if not particularly serious, may exceptionally be cured during appeal proceedings. This cure is subject to two cumulative conditions: the appellate authority must have full power of review (full cognition) over the disputed issues, and the party concerned must not suffer any prejudice. A cure is excluded if the appellate authority has more limited powers of review than the authority of first instance.
The right to inspect the case file, a component of the right to be heard, is not absolute. If access to certain documents is refused for overriding reasons (e.g., third-party trade secrets), the authority must at least communicate the essential content of these documents to the party concerned to allow them to comment, provided the decision is based on them.
Application to the specific case
The Federal Supreme Court finds that the Administrative Court erred in considering that the violation of the right to be heard had been cured.
Firstly, curing a procedural flaw requires the appellate body to have full power of review. However, the Administrative Court itself stated in its ruling that it exercised restraint in reviewing technical valuation issues and did not review the appropriateness of the decision, limiting itself to a review of legality. It is contradictory to claim to cure a violation of the right to be heard while subsequently refusing to examine the appellants' substantive arguments on the grounds of limited review power. Since the condition of full cognition was not met, a cure was excluded.
Secondly, regarding the documents classified as secret, the Administrative Court only communicated their essential content to the appellants in the reasoning of its final judgment. The appellants therefore did not have the opportunity to comment on these elements before the decision was rendered, which constitutes a further violation of their right to be heard. Even if this communication had taken place earlier, a cure would not have been possible due to the Administrative Court's limited power of review.
The Federal Supreme Court concludes that the violations of the right to be heard were not validly cured. The case must therefore be remanded not to the Administrative Court, but directly to the authority of first instance (the Office), which has full power of review.
Outcome
The Federal Supreme Court allows the appeal. It annuls the judgment of the Administrative Court of the canton of Grisons and remands the case to the Real Estate Valuation Office for a new decision in the objection proceedings, in order to fully guarantee the appellants' right to be heard.
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