No Retroactive Direct Claims: Swiss Federal Supreme Court Clarifies Temporal Scope of Art. 60 para. 1bis ICA

BGE 151 III 35 and the scope of Art. 103a ICA

26 May 2025

On January 27, 2025, the Swiss Federal Supreme Court delivered a significant ruling (case no. 4A_189/2024 published as BGE 151 III 35) clarifying the intertemporal applicability of the revised Insurance Contract Act (ICA), specifically addressing the newly introduced direct right of claim under Art. 60 para. 1bis ICA, enabling injured third parties to directly pursue liability insurers.

Background of the Dispute

The underlying case involved a medical malpractice claim stemming from surgery conducted in 2014. The claimant initiated proceedings in 2023 directly against the treating physician's liability insurer, relying on Art. 60 para. 1bis ICA. Both the insurance contract and the injurious event predated the entry into force of the new provision on 1 January 2022.

The central question before the Court was whether Art. 60 para. 1bis ICA could apply retroactively to insurance contracts concluded prior to the amendment.

The Court’s Decision

The Federal Supreme Court ruled against retroactive application. Key aspects of its reasoning include:

Art. 103a ICA, a special transitional provision introduced with the 2020 amendments, exhaustively defines which new provisions apply retroactively.
Explicitly, Art. 103a ICA limits retroactive applicability to new form requirements and termination rights under Arts. 35a and 35b ICA.
The Court regarded the absence of Art. 60 para. 1bis ICA from Art. 103a ICA as a deliberate legislative choice, ruling out its retroactive application.

Analysis and Commentary

The decision reinforces the interpretation advanced by a substantial segment of legal doctrine, whose authors argue that Art. 103a ICA must be understood as an exhaustive transitional rule, deliberately limiting retroactive applicability to only two provisions of the revised ICA.

The Court’s judgment supports this view, interpreting the silence of Art. 103a ICA regarding Art. 60 para. 1bis ICA as indicative of a conscious legislative omission. The decision also rejects opposing scholarly views, which suggested that direct claims could apply retrospectively based on general transitional norms or a supposed gap in Art. 103a ICA.

By classifying Art. 103a ICA as a lex specialis that overrides the general provisions of the Swiss Civil Code’s transitional law, the Court emphasizes the history of Art. 103a ICA and prioritizes legal certainty. It also distances itself from formalistic distinctions between contract-based and third-party provisions of the ICA, emphasizing the systemic integration of all insurance-related rights into the contract framework.

Practical Impact

This landmark ruling significantly benefits insurers and policyholders by confirming that substantial new rights, including direct claims by injured third parties, apply only to insurance contracts concluded from 1 January 2022 onwards. This decision mitigates the risk of unforeseen retroactive liabilities and aligns with prudent insurance practice.

Furthermore, the ruling effectively settles ongoing debates regarding distinctions between contract-based and non-contract-based provisions within the Insurance Contract Act, clarifying that all rights fundamentally derive from existing insurance contracts.

Conclusion

In BGE 151 III 35, the Federal Supreme Court unequivocally reaffirmed the prospective nature of the revised ICA. Its decision underscores the paramount importance of explicit legislative intent and contributes substantially to legal certainty within the Swiss insurance landscape.