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Appeal against the Swiss Competition Commission before the Federal Administrative Court

22. August 2020
Beschwerde beim Bundesverwaltungs-gericht gegen die WEKO

In connection with the controversial mega-terminal Gateway Basel Nord (GBN), the Swiss Competition Commission (COMCO) continues to receive criticism. First, COMCO approved a plan deemed “capable of eliminating effective competition.” Second, the Commission refused to grant concerned parties access to case documents. Finally, COMCO also ignored recommendations from the Federal Data Commissioner, thus disregarding applicable law. As a result, Swissterminal AG, an integrated logistics service provider headquartered in Frenkendorf close to Basel, is now bringing a formal complaint before the Federal Administrative Court.

In June 2019, COMCO surprised the public with its announcement that it had no objections to the controversial GBN project. According to COMCO, the planned terminal is indeed capable of “eliminating effective competition in the handling of containers, swap bodies and semi-trailers in import and export traffic.” However, citing efficiency reasons, the Commission stated the GBN project would improve competitive conditions for the transport of goods by rail.

At the time, however, the COMCO did not say on what basis it concluded that GBN would lead to more competition. It also remained silent about exactly how the improved competitive situation would be achieved and what effects it would have.

Although Swissterminal would be directly affected by the GBN project, the company was not given the opportunity to comment on the project’s alleged efficiency improvement at any time during COMCO’s decision-making process. With COMCO’s high-profile, much-criticised decision being based on the efficiency argument alone, this exclusion came as a surprise.

No in-depth examination
Swissterminal attempted to gain access to the relevant case documents by lodging a supervisory complaint against COMCO with the Federal Council. In particular, Swissterminal claimed that COMCO failed to complete an in-depth examination of the alleged efficiency improvements.

In its reply of 23 June 2020, the Federal Department of Economics, Education and Research (EAER), the department COMCO belongs to, informed Swissterminal that its complaint against COMCO would not be upheld due to formal legal reasons. In the view of EAER, the complaint was deemed to be an effort to instigate a content-based review of the COMCO decision.

No transparency
The EAER’s answer did not help quell widespread doubts about COMCO and its behaviour in the GBN decision. Contrary to EAER’s claims, Swissterminal did not demand to review the content of COMCO’s decision. Rather, the aim was to verify whether COMCO had upheld procedural rules and completed an in-depth investigation of the merger’s efficiency criteria.

Criticism of the decision continues to be voiced. This criticism was reinforced by COMCO’s deliberate lack of transparency. Initially, COMCO refused to allow Swissterminal any access to the relevant case documents. Later, when COMCO agreed to send documentation, it covered up and blacked out individual documents and information, so much so that the meaning and implications of the documents in question could not be deciphered by Swissterminal or were incomplete.

COMCO ignores Data Protection Commissioner
The Federal Data Protection Commissioner’s recommendation was also ignored by COMCO. In his decision of 4 March 2020, the Federal Data Protection Commissioner recommended COMCO – subject to the anonymisation of personal data accepted by Swissterminal – to provide full access to the requested information.

COMCO not only did not follow this recommendation issued by the Commissioner, but also, contrary to the legal requirements, they also failed to issue an order to this effect that could be officially challenged. As a result, the rights of Swissterminal were again violated.

Appeal to the Federal Administrative Court
Swissterminal is now bringing an appeal against the COMCO before the Federal Administrative Court. The case asks that COMCO be ordered to grant Swissterminal full access to the relevant documents in accordance with the recommendation of the Federal Data Protection Commissioner.

In any case, the COMCO should be instructed to abandon its attitude of refusal to grant access and also be instructed to issue a challengeable order, as required by law.

For transparency and competition
Swissterminal is convinced that in taking this action it is making an important contribution to the transparent jurisdiction of COMCO and thus to functioning competition in Switzerland.