Swissterminal files complaint with the Federal Administrative Court

[vc_row][vc_column][vc_custom_heading text=”The Swiss container and logistics service provider Swissterminal AG continues its fight against the planned rail terminal ‘Gateway Basel Nord’. It has filed a complaint with the Federal Administrative Court against the WEKO (Competition Commission). The complaint demands access to the relevant documents. Here is the full press release in its original wording.” use_theme_fonts=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

Press release from Swissterminal in its original wording:

Frenkendorf/Basel, August 20, 2020: In connection with the controversial mega terminal Gateway Basel Nord (GBN), the Competition Commission WEKO continues to cause astonishment. First, it approves a project that ‘is capable of eliminating effective competition’. Subsequently, WEKO denies the affected parties access to the procedural documents. Finally, WEKO also ignores the recommendation of the Federal Data Protection Commissioner and thus disregards applicable law. Therefore, Swissterminal, an integrated logistics service provider headquartered in Frenkendorf near Basel, is now filing a complaint with the Swiss Federal Administrative Court.

In June 2019, WEKO surprised everyone with its announcement that it had no objections to the merger project surrounding the controversial GBN project. Although the planned terminal – according to WEKO – ‘is capable of eliminating effective competition in the handling of containers, swap bodies, and semi-trailers in import and export traffic’, it simultaneously claimed that the project improves competitive conditions for the transport of goods by rail (so-called efficiency reasons).

However, WEKO did not specify the basis on which it concluded that the GBN project would lead to more competition in other areas. It also remained silent on how exactly the alleged improvement in competitive conditions is supposed to occur and what effects it would have.

The Swiss company Swissterminal, which is directly affected by the GBN project, was never given the opportunity to comment on the efficiency increase claimed by the GBN proponents during WEKO’s decision-making process. This is all the more shocking since WEKO justified its much-noted and criticized decision solely with this efficiency argument.

No in-depth examination

Swissterminal therefore attempted to gain access to the files from the Federal Council through a supervisory complaint against WEKO. In particular, Swissterminal argued that WEKO had failed to conduct an in-depth examination of the claimed efficiency reasons.

In a response dated June 23, 2020, the Federal Department of Economic Affairs, Education and Research (WBF), to which WEKO is administratively assigned, informed Swissterminal that the complaint against WEKO would not be addressed for formal legal reasons, as the complaint aimed at a substantive review of WEKO’s decision.

No transparency

This response does not clarify the widespread astonishment regarding WEKO and its behavior surrounding the GBN decision. Because – contrary to what WBF claimed – Swissterminal did not demand a substantive review of WEKO’s decision. Rather, it was about examining whether WEKO had violated its own business regulations by approving the merger based on efficiency criteria without having conducted any in-depth investigations. This criticism still stands.

The discomfort is further reinforced by the deliberate lack of transparency surrounding the decision by WEKO. Initially, it denied Swissterminal, which is existentially affected by the GBN project, any access to the relevant documents. Later, in individual papers that it provided to Swissterminal upon insistence, it made so many redactions and blackouts that the meaning and statements of the relevant documents were either unclear or only partially discernible.

WEKO disregards the Data Protection Commissioner

The recommendation of the Federal Data Protection Commissioner was also practically ignored by WEKO. In his decision dated March 4, 2020, he recommended that WEKO grant full access to the requested information, subject to the anonymization of personal data accepted by Swissterminal.

However, WEKO not only failed to comply with this recommendation from the Federal Data Protection Commissioner. Contrary to legal requirements, WEKO also refrained from issuing a corresponding, appealable decision ex officio. This once again grossly violated Swissterminal’s rights.

Complaint to the Federal Administrative Court

Therefore, Swissterminal is now filing a complaint against WEKO with the Federal Administrative Court. It demands that WEKO be instructed to grant Swissterminal full access to the relevant documents in accordance with the recommendation of the Federal Data Protection Commissioner.

If necessary, WEKO should be instructed to abandon its refusal to provide legal recourse and to issue an appealable decision as required by law.

For transparency and competition

Swissterminal is convinced that this effort will make an important contribution to transparent jurisprudence by WEKO and thus to a functioning competition in Switzerland.

Photo: @ Swissterminal

www.swissterminal.com[/vc_column_text][/vc_column][/vc_row]