“Panel formation” designates the procedure for assigning judges to a panel entrusted with adjudicating a case. The rules of procedure for the Federal Administrative Court (VGR, SR 173.320.1) specify the criteria to be taken into account in assigning business to the judges.
As a rule, panels are composed of three judges. But cases may also be heard by a single judge, if necessary with the consent of a second judge, or by a five-judge panel.
The panel is normally formed at the beginning of proceedings. Where necessary, cross-divisional panels may be set up. This is done, for example, if:
- a legal issue concerns the common areas of law in the respective remit of the divisions concerned;
- the expertise of another division is required on a point of law;
- judges in other divisions are called upon to balance the workload.
Panel formation at the Federal Administrative Court has two components, one automated and the other manual.
For the automated part, the Court relies on a software programme called “Bandlimat” in internal parlance. This software contains input such as judges’ working languages, degrees of occupation, and areas of expertise.
If, for technical reasons, criteria cannot be mapped in the software, they will be taken into account manually. This is done in connected proceedings (consolidated proceedings) for example, or on ground of recusals, withdrawals (retirement), sudden absences, or to even out the work load. The manual component is therefore part and parcel of the panel formation process. Whether they are taken into account manually or by software, the criteria are objective and are set forth in the Court’s rules of procedure.
It may be necessary, under certain circumstances, to modify a panel of judges – this both with regard to the position of main judge or that of co-judge. Adjustments are only ever made for important factual reasons, e.g. in the event of unforeseen absences or when a ground for recusal emerges at a later date. In such cases, the regulatory criteria for the formation of the panels apply analogously.
A judge’s political affiliation is deliberately disregarded in panel formation. Judges are independent in their judicial activities, they are bound only by the law (Article 191c of the Constitution) and do not represent any political party. Independence is not only a right, it is a duty.
The case-assignment software is an important and useful panel formation tool for the Federal Administrative Court. It is geared first and foremost to effective business management. The degree of automation is well advanced. The FAC plays a pioneering role and is committed to ensuring the continuous development of the panel formation system as a whole with a view to further maximising the potential of automated case distribution.
The Control Committees, as the bodies with ultimate oversight, as well as academia and the media are also interested in this panel formation system. Several supervisory reports and scientific articles have already been produced containing recommendations for further development.
Moreover, the Court has instructed Daniela Thurnherr, Professor at Basel University and part-time judge, to undertake a critical analysis of its system from a legal and practical perspective and to propose recommendations for its further development. Accordingly, the professor of law has prepared the report “Spruchkörperbildung durch das Bundesverwaltungsgericht. Überprüfung von Rechtsgrundlagen und Praxis der Spruchkörperbildung am Bundesverwaltungsgericht”. In her report, Professor Thurnherr reaches the conclusion that the panel formation system at the Federal Administrative Court is expedient and consistent with international law and the Swiss federal constitution (Media release of 17 May 2023 and professor Daniela Thurnherr’s report, in German).
After a one-year trial period, the FAC introduced a panel-monitoring system at court level for all proceedings filed on or after 1 January 2022. As part of this system, an updated statistical overview is issued to the Administrative Commission and the division presidents every four months. This overview maps the panel composition for all cases completed in the current year. It also shows in how many cases the panels were formed automatically and in how many a manual component was used. The system is also designed to ensure that the reasons for adjustments in panel composition are fully documented.