No Swiss Jurisdiction for the Employer: How Lugano Article 20 Blocks a Tort-Cumulation Strategy

A recent set of Swiss Federal Court rulings reaffirms the protective forum at the employee's domicile

On 10 March 2026, the Swiss Federal Court issued three parallel rulings — BGer 4A_103/2025, 4A_105/2025 and 4A_107/2025 — disposing of a Swiss employer’s appeal against the refusal of Ticino’s appellate court to hear its cases against three Italy-domiciled former employees..

The appellant in all three cases was a Ticino joint-stock company that had employed the three employees, each domiciled in Italy — in long-running employment relationships terminated in 2022. Each employment contract contained a non-compete obligation running for three years post-termination and covering both Switzerland and Italy, a CHF 150’000 contractual penalty for breach, and a forum-selection clause designating the Swiss court (Pretura di Mendrisio sud) as the competent court for disputes arising from the employment relationship.

After termination, the three former employees jointly moved to a competitor. The employer launched parallel proceedings against each of them in Mendrisio, Switzerland. The principal claim was for the contractual penalty arising from the non-compete clause; the subsidiary claim was for damages arising from the same conduct, but expressly grounded in tort — specifically in the criminal-law offences of unauthorised data access (Art. 143 Swiss Criminal Code, SCC), unauthorised data interception (Art. 143bis SCC) and breach of manufacturing or business secrecy (Art. 162 SCC), and in the unfair-competition provisions of Art. 6 and Art. 23 of the Swiss Federal Act against Unfair Competition.

The Pretura di Mendrisio sud declined jurisdiction. The second cantonal instance, the Tribunale d’appello of Canton Ticino, confirmed.

The Lugano framework for cross-border employment disputes and why tort cumulation failed

Jurisdiction between Switzerland and Italy (among the other EU Member States) is governed by the Lugano Convention of 30 October 2007 (LC). The Federal Court has long held that the Convention must be interpreted in line with the case law of the European Court of Justice on Regulation Brussels I and Brussels I recast and on its predecessor Convention of 1968 (Federal Court’s settled jurisprudence; see, among others, BGE 139 III 232). The relevant CJEU anchor for the cumulation question is Holterman Ferho Exploitatie BV (C-47/14, judgment of 10 September 2015), which held that Articles 18 to 21 of Regulation EC 44/2001 — the textual parents of Articles 18 to 21 LC — preclude the application of Article 5 numbers 1 and 3 of the same regulation.

First, Art. 20 paragraph 1 LC provides that “an employer may bring proceedings only in the courts of the State bound by this Convention in which the employee is domiciled”. Second, Art. 21 LC neutralises the standard employer device for escaping this regime: agreements conferring jurisdiction are valid only if entered into after the dispute has arisen, or if they allow the employee to bring proceedings in courts other than those of his or her domicile. A pre-dispute jurisdiction clause in favour of the employer’s seat is therefore unenforceable against the employee — even where, as in the three Ticino rulings, the employee signed the clause as part of the employment contract itself.

In the present cases, the appellant had argued that its subsidiary claim for damages was grounded in criminal law (Articles 143, 143bis and 162 Swiss Criminal Code) and in unfair competition (Articles 6 and 23 of the Federal Act against Unfair Competition), and therefore presented “no connection at all” to the employment relationship — supposedly opening the tort forum of Art. 5 No. 3 LC at the place where the harmful event occurred. The Federal Court disposes of this argument summarily. Where the appellant itself “acknowledges having brought a cumulation of claims grounded in contract and in tort”, the existence of an autonomous employment contract is sufficient to lock all claims, both contractual and extra-contractual, into Art. 20 LC. The appellant, in the Federal Court’s words, “wrongly claims to be able to seise the forum of the alleged unlawful act because in her subsidiary motion she would have also claimed damages arising from possible unlawful acts” (BGer 4A_103/2025 consid. 3.3, translated from the Italian original). The mechanical effect: any contractual anchor to the employment relationship pulls all parallel tort claims with it into the protective forum, regardless of how independently the tort claims are pleaded — and regardless of how serious the alleged unfair-competition or criminal conduct may be.

What the Federal Court actually held

The reasoning follows a two-step logic that foreign counsel defending an EU-domiciled former Swiss employee should internalise as the standard playbook for this constellation.

Step one: the autonomous concept of an employment contract. Art. 20 LC applies only if an employment contract exists in the sense defined autonomously by the Convention itself — not by reference to the domestic law of any contracting State. The Federal Court, expressly relying on the CJEU’s Holterman Ferho (C-47/14, paragraph 45), restates the elements: the employee must have provided services for a certain period, for and under the direction of the employer, in exchange for remuneration, and must have been bound by a durable relationship integrating him or her into the employer’s organisation. This is a low threshold and will be met in virtually any standard employment relationship. It is, however, jurisdictional ground that foreign counsel should plead and document affirmatively, because the entire Art. 20 protection collapses if the relationship can be re-characterised — as consultancy, agency, or a simple mandate — outside the autonomous notion. Swiss employers facing the reverse problem occasionally try to exploit precisely this avenue at the contract-drafting stage; counsel for the employee should be alert to it long before the dispute matures.

Step two: exclusivity. Once the autonomous employment contract is established, the protective regime of Section 5 LC engages and blocks the alternative fora otherwise available under Art. 5 LC. The Federal Court quotes Holterman Ferho for the proposition that “Articles 18 to 21 of Regulation EC 44/2001 preclude the application of Art. 5 Nos. 1 and 3 of the same regulation” (BGer 4A_103/2025 consid. 3.3, translated from the Italian original). The text of Art. 20 paragraph 1 LC is read as a closed channel: an employer’s action against the employee “may only” be brought before the courts of the State of the employee’s domicile. There is no concurrent contractual forum at the place of performance, no concurrent tort forum at the place where the alleged harmful event occurred, and no concurrent jurisdiction clause in favour of the employer’s seat — the latter being separately neutralised by Art. 21 LC, which is not even reached in the three decisions because the cumulation argument fails one step earlier.

What the rulings leave open

The Federal Court disposed of the cumulation argument by emphasising that the appellant itself had acknowledged combining contractual and extra-contractual grounds. That formulation leaves a related but distinct question undecided: would Art. 5 No. 3 LC become available where the claim against the former employee is purely tortious, with no contractual anchor at all — for instance a stand-alone unfair-competition claim against a former employee who is alleged to have used confidential information acquired entirely outside the employment relationship, or a stand-alone breach-of-secrecy claim brought after the limitation period for contractual damages has expired?

The three decisions do not answer this. In practice, where the alleged misconduct involves customer relationships, technical know-how, business secrets or competitive intelligence, the causal link to the employment relationship is almost always present — and once it is, the autonomous concept of an employment contract under Art. 20 LC engages. The three rulings are a welcome reminder of the settled jurisprudence on Art. 20 LC.

Implications For EU-domiciled former employees

For EU-domiciled former employees facing a Swiss-court action, the case law reduces the defensive playbook to three steps.

First, the jurisdictional objection under Art. 20 LC must be raised before any submission on the merits. Art. 26 LC requires the court to examine its jurisdiction of its own motion where the defendant fails to appear, but the protective effect of Art. 20 LC depends in practice on the defence being raised, or the absence being maintained, before the cantonal first-instance court. A defendant who enters an appearance on the merits without contesting jurisdiction risks tacit submission under Art. 24 LC.

Second, the jurisdiction clause in the employment contract is unenforceable as a matter of Convention law, not of Swiss employment law. The Convention argument is to be made under Art. 21 LC; the parallel argument under Art. 341 Swiss Code of Obligations (the substantive prohibition on waiver of mandatory employment-law claims during employment and for one month thereafter) is a fallback, but the cleaner route is the Convention one because it does not require the Swiss court to engage with Swiss employment law at all.

Third, even if a Swiss court were to retain jurisdiction in error and issue a judgment, that judgment may face refusal of recognition in the employee’s home state under Art. 35 paragraph 1 LC, which protects the employee-specific competence rules. The Swiss judgment is, for cross-border enforcement purposes, dead on arrival.

For Swiss employers contemplating proceedings against an EU-domiciled former employee, the mirror image applies. The most common option are proceedings filed in the employee’s home jurisdiction with local counsel. The hope of saving the Swiss forum by tort-packaging the claim has no remaining basis.