Federal Supreme Court, 03.11.2025, 9C_568/2025
Facts
An agricultural cooperative (the appellant) operates land in Switzerland and in the German border zone. Following an announcement by the Federal Office for Customs and Border Security (FOCBS) regarding a tightening of its practice effective January 1, 2028, concerning the duty-free importation of agricultural products (agricultural cross-border traffic), the cooperative requested a declaratory ruling. It sought to have its right to maintain the previous practice beyond 2028 confirmed and requested the granting of suspensive effect.
The FOCBS rejected the request. The cooperative appealed to the Federal Administrative Court (FAC), requesting as a provisional measure that the previous practice be maintained until the conclusion of the proceedings. In an incidental ruling, the FAC found that the appeal had suspensive effect by operation of law, but declined to rule on the request for provisional measures. The cooperative challenged this incidental ruling before the Federal Supreme Court (FSC), citing significant economic prejudice and the need for investment security.
Legal Analysis
The Federal Supreme Court reiterates the conditions for the admissibility of an appeal against a preliminary or incidental ruling that does not conclude the proceedings. Under Art. 93 para. 1 let. a of the Federal Supreme Court Act (FSCA), such an appeal is only admissible if the ruling may cause irreparable prejudice.
This prejudice must be of a legal nature, meaning it must infringe upon legally protected rights or interests. Prejudice of a purely factual nature, such as economic loss, the prolongation of proceedings, or increased costs, is generally insufficient to establish admissibility. Prejudice of a legal nature is typically recognized in cases involving the threat of loss of legal protection or the denial of access to a court.
Furthermore, under Art. 98 FSCA, appeals against incidental rulings concerning provisional measures are limited to the violation of constitutional rights, which must be demonstrated through qualified argumentation (Art. 106 para. 2 FSCA).
Application to the Case
The Federal Supreme Court classifies the FAC's ruling as an incidental ruling on provisional measures. It examines whether the appellant has demonstrated the existence of irreparable prejudice of a legal nature.
The FSC finds that the appellant's arguments—the need for planning security, the risk of rendering investments useless, loss of income, and the potential closure of an operation—are purely economic and factual in nature. In accordance with its established case law, such disadvantages do not constitute irreparable prejudice of a legal nature within the meaning of Art. 93 para. 1 let. a FSCA.
The FSC adds that the new FOCBS practice is not scheduled to enter into force until January 1, 2028, allowing for a transition period of several years. Until that date, the current practice remains in effect, rendering the granting of provisional measures to guarantee the status quo unnecessary.
Finally, the FSC notes that the appellant failed to sufficiently substantiate the violation of its constitutional rights, as required by Art. 98 FSCA, merely citing articles of the Constitution and the ECHR without developing a detailed argument.
Outcome
The Federal Supreme Court declares the appeal inadmissible, as the conditions of Art. 93 para. 1 let. a FSCA were not met. The legal costs are charged to the appellant.
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