At its meeting on Wednesday, 26 February 2020, the Federal Council took note of the results of the consultation on the revision of the Code of Civil Procedure (CCP) and released the dispatch for the parliament. This was triggered by a motion submitted in November 2014, which demanded that the existing CCP be first examined for its suitability in practice and that the Federal Council then use the results to develop a draft with necessary adjustments. Purpose of this procedure was to adapt the CCP in a single draft and thus prevent it from being split into individual revision packages.
Considering that the CCP has proven to be very effective overall since its introduction in 2011, the Federal Council refrained from making any major changes in its preliminary draft and instead opted for selective adjustments. To carry out a general revision just nine years after it came into force would certainly have been too early and would also not have been conducive to legal certainty.
Nevertheless, the Federal Council recognized the need for action on certain aspects during the suitability test and accordingly set the following priorities in the preliminary draft: (i) changes to the law on costs, (ii) strengthening of collective redress, (iii) facilitating and expanding of possibilities for coordinating proceedings, (iv) strengthening of conciliation procedures, (v) creating a right of participation refusal for in-house counsel and (vi) further targeted adjustments by means of differentiated incorporation of Federal Court rulings into the Act.
The results of the consultation procedure showed that two aspects of the preliminary draft in particular were highly controversial from a political point of view. On the one hand, a majority of the cantons were against changing the cost provisions. This was primarily due to the threat of an additional financial burden, which would result in a new regulation of the liquidation of legal costs and the halving of advances on legal costs. Since the Federal Council has made it a clear objective to facilitate the access to the courts, particularly for members of the middle class, it is in principle adhering to its proposal in this respect. However, it takes into account the concerns of the cantons in the dispatch by providing for certain exceptions to the principle of halving court costs.
On the other hand, the proposals on collective legal protection were also highly controversial in the consultation process. Business representatives in particular opposed this proposal, fearing that it would increase the pressure on companies and also that it could encompass a certain risk of abuse. The Federal Council wanted to further enhance the class action lawsuit by enabling collective legal assertion of claims for damages and profit recovery. However, due to the strong criticism, the Federal Council waives further consideration of collective legal protection in the context of this proposal and will remove it from the dispatch. It will await the parliamentary discussion of the current draft before deciding how to proceed in this regard. The examination of the practical suitability has shown that certain mechanisms and procedures have proven to be extremely effective. For this reason the Federal Council intends, for example, to further strengthen the conciliation procedure and allow it to be used in other disputes as well, and to further expand the competence of the conciliation authorities in the case of proposed decisions.
At the moment it is still difficult to estimate when the revised CCP will actually enter into force and how much the draft will be amended in the course of parliamentary debates.
Whether under current or future CCP, our litigation specialists will be happy to assist you in enforcing your rights.