F-35: Amherd Risks Liability for Extra Costs

Context

In brief

• The CdG established that Amherd was aware of the risks of extra costs on the F-35s months before informing the Federal Council.
• No final price was ever set for the purchase of the 36 jets.
• UDC National Councillor Wyssmann is asking to block the statute of limitations for potential liability actions.
• The three-year deadline to take legal action may expire soon.

Key facts

• What: Investigation by the National Council's Committee of Administration regarding the purchase of the F-35s.
• When: Report recently published; three-year statute of limitations is running.
• Where: Bern, federal level.
• Who: Former Federal Councillor Viola Amherd, CdG, National Councillor Rémy Wyssmann (UDC), Federal Council.
• Amount: Potential damage not yet specified; previous Bischof case involved 112,500 francs.
• Legal basis: Art. 5 para. 3 of the Ordinance on the Liability Act.

The CdG investigation and its findings

The National Council's Committee of Administration (CdG) has concluded its investigations into the methods used to purchase the 36 F-35 jets. According to the report, former Federal Councillor Viola Amherd was aware, months before informing the Federal Council, of the risk of additional costs. Furthermore, a final price for the contract was never set. Amherd, currently in Oslo for the funeral of Norwegian King Harald V, has so far chosen silence and has not responded to journalists' requests.

The debate on legal liability

In Bern, the issue of personal liability is at the center of political debate. UDC National Councillor Rémy Wyssmann had asked a year ago for the Federal Council to adopt 'all necessary measures' so that potential civil liability claims against Amherd and the officials involved would not fall under the statute of limitations. At the time, the Federal Council had recommended rejecting the request, arguing that there were 'no sufficient concrete indications either of the presence of damage, or of unlawful conduct.' However, it had assured that the competent authorities would evaluate legal actions should such indications emerge.

Jurisdiction and precedents

According to Article 5, paragraph 3, of the Ordinance on the Liability Act, jurisdiction for potential legal actions against Amherd lies with the Federal Council as a whole; for the officials involved, liability falls under the Department of Defense. A historical precedent is represented by the case of Councillor of States Pirmin Bischof (Centre), who in the 1990s was held personally responsible for the failure of the Solothurn Cantonal Bank and paid 112,500 francs. Former Socialist National Councillor Pierre-Alain Fridez considers the investigation insufficient and calls for the establishment of a parliamentary committee of inquiry, extending the in-depth analysis to the choice of the F-35 model.

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Operational details

Implications for managing large federal contracts

The CdG's conclusions raise structural questions about the management of billion-franc contracts at federal level. Wyssmann has sharply criticized the practice: «Once again, the contracts are not read, but those responsible continue to draw salaries of over 400'000 francs». This refers to the gross annual salary of a Federal Councillor. The Solothurn parliamentarian extends the concern to future major contracts, such as those with the EU: «These have not been read either? The federal administration now signs contracts as other people sign up for gym memberships».

The limitation issue and tight deadlines

Lawyer Wyssmann explains that the three-year relative limitation period begins when one first becomes aware that damage may have been caused. Courts often postpone this deadline, but «the three years could therefore expire at any time». The procedure for interrupting the limitation period would be simple: «All it would take would be a five-minute phone call with Amherd, in which she agrees in writing to waive the limitation defence – without any admission of guilt». So far, however, there is no indication that the Federal Council has initiated this step.

What this means for public finances and taxpayers

Whether and to what extent legally relevant damage resulted from the purchase has yet to be established. Wyssmann clarifies that this can only be determined once the purchase itself has been completed. «Then all jointly and severally liable parties and their respective shares of responsibility will have to be identified. Not just Amherd. Everyone involved», he stresses. The matter directly affects the management of public resources: any damage would fall on the federal coffers, funded by direct federal tax and VAT paid by citizens and businesses. Transparency about the final costs of the F-35s, amounting to several billion francs, therefore becomes a matter of national fiscal interest.

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Key points

Next procedural steps and possible scenarios

The Federal Council must now decide whether to interrupt the limitation period with regard to Amherd and the officials of the Department of Defence. Authority is exercised collectively in the case of the former Federal Councillor, whereas for the staff members it lies with the Department currently headed by Viola Amherd (until her departure) and her successor. If the Federal Council does not act promptly, there is a risk that the three-year limitation period will expire, making any recovery action impossible. At the same time, Fridez's request for a parliamentary commission of inquiry (CPI) would require a decision by the Federal Chambers: a CPI has broader investigative powers than the CdG, including the authority to order searches and seizures.

How to follow developments and protect your interests

For citizens who want to monitor the matter, the official channels are the Parliament's website (parlamento.ch) for the CdG's documents and any motions, and the Federal Administration's website (admin.ch) for the Federal Council's statements. Anyone wishing to understand the impact of military spending on federal taxation can consult the Confederation's budgets published by the Federal Finance Administration (AFF). Transparency regarding the final costs of F-35 will be decisive in assessing whether there has been harm to public finances.

Tools for navigating Swiss public finances

The management of major federal procurement contracts affects the Confederation's budget and, consequently, the tax burden at national level. To gain a concrete understanding of how decisions in Bern affect taxpayers' wallets, you can use our calculator to estimate the impact of direct federal tax on your income. The tool takes into account the latest tax brackets and permitted deductions.

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Source: tio.ch