The Federal Supreme Court has ruled that the co-acquisition of employee housing can only take place without authorisation if it takes place at the same time as the acquisition of a permanent business establishment (without prior authorisation).
In the present Federal Supreme Court case, a sister company, a public limited company domiciled in Switzerland, wished to acquire a property with employee accommodation without authorisation, in order to subsequently rent the rooms on a long-term basis to the employees of the neighbouring hotel. This hotel was owned by its sister company, the parent company being wholly owned by a German national. However, the authorities refused to approve the acquisition without authorisation. A so-called permanent business establishment, which is used for a commercial purpose, such as a factory, office, hotel or medical practice, or even rented or leased to a third party for the exercise of its commercial activity, is not subject to authorisation. However, there is no economic activity if residential property is built, rented or leased. Only in exceptional cases can apartments be acquired as part of the business premises without authorisation, for example if they are essential for the business (e.g. for the caretaker). In order to benefit from this exemption, the acquisition of a permanent business establishment without prior authorisation must take place at the same time as the co-acquisition of the employee housing. In the present case, the intended acquisition of the employee accomodation took place at a later date and was therefore not eligible for approval.
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