Approval requirement for subsequent acquisition of staff housing by foreign company as co-acquisition of a permanent establishment

Facts

The respondent, a public limited company with its registered office in Lucerne, is a subsidiary of [B. AG] , which is 100% controlled by a German national. It intended to acquire a property in Davos on which a hotel and staff housing were located. The property was to be leased long-term to its sister company, the hotel operator, in order to secure the staff housing for the hotel staff.

On 7 November 2019, the respondent filed an application with the Land Registry and Commercial Register Inspectorate of Graubünden as the cantonal approval authority for a declaratory ruling that the acquisition of the property would qualify as an approval-free co-acquisition of a permanent establishment within the meaning of Art. 2 para. 2 lit. a and para. 3 of the Federal Act on the Acquisition of Real Estate by Persons Abroad (ANRA). The cantonal authority issued a corresponding declaratory ruling on 12 December 2019.

On 22 January 2020, the Federal Office of Justice (FOJ) filed an appeal against this ruling with the Administrative Court of the Canton of Graubünden. It requested that the ruling be set aside and that it be declared that the acquisition of the property was subject to approval. In a judgment of 24 March 2022, the Administrative Court dismissed the appeal and confirmed the approval-free nature of the acquisition, as the staff housing was necessary for the operation of the hotel and the respondent and its sister company were under common control.

The FOJ then filed an appeal in public law matters on 27 April 2022 with the Federal Supreme Court, requesting that the judgment of the Administrative Court be set aside. It argued that there had been a violation of Art. 2 para. 2 lit. a and para. 3 ANRA, as the subsequent acquisition of the staff housing by the respondent could not be qualified as a co-acquisition of a permanent establishment.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal and allowed it insofar as the declaration of the approval requirement was sought. It found that the FOJ’s declaratory claim was admissible, as the question of the approval requirement was not subject to a performance claim. However, the request for…