Interim success for Swissterminal against Gateway Basel Nord

[vc_row][vc_column][vc_custom_heading text=”In the context of the legal disputes surrounding the ‘Gateway Basel Nord’, the Federal Administrative Court rightly admonishes the Competition Commission (WEKO). The court grants the complaint of the private terminal operator Swissterminal AG against WEKO regarding the refusal of legal recourse. It instructs WEKO to follow the recommendation of the Federal Data Protection Commissioner. WEKO must either grant Swissterminal AG full access to the case files or issue a decision within a specified period that can be appealed.” use_theme_fonts=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text](Frenkendorf) In connection with the controversial mega terminal Gateway Basel Nord (GBN), the Competition Commission WEKO has repeatedly caused astonishment. Initially, WEKO approved a project that “could eliminate effective competition.”

Subsequently, it denied the affected parties access to the documents relevant to the decision. Finally, it also ignored the recommendation of the Federal Data Protection Commissioner as well as applicable law. With its decision of December 7, 2020, the Federal Administrative Court now rightly calls WEKO to order. The court grants the complaint of the private Swissterminal AG regarding the refusal of legal recourse and instructs WEKO to follow the recommendation of the Federal Data Protection Commissioner. Either Swissterminal AG must be granted full access to the case files, or a decision must be issued within a specified period that can be appealed. Both had previously been denied by WEKO.

Green Light Despite Elimination of Competition

The green light despite the elimination of competition is the subject of the legal dispute and a controversial decision by WEKO. In June 2019, WEKO unexpectedly announced that it had no objections to the merger project surrounding the controversial mega terminal Gateway Basel Nord. Although the planned terminal – according to WEKO – “could eliminate effective competition in the handling of containers, swap bodies, and semi-trailers in import and export traffic,” it claimed that the project improves competitive conditions for the transport of goods by rail (so-called efficiency reasons). The basis on which WEKO concluded that the GBN project would lead to more competition was not disclosed.

Opaque Jurisprudence of WEKO

It also provided no information on how exactly the alleged improvement in competitive conditions is supposed to occur and with what effects. Opaque jurisprudence of WEKO The Swiss company Swissterminal, directly affected by the GBN project, had no opportunity at any time during WEKO’s decision-making process to comment on the efficiency gains claimed by GBN supporters.

Many Redactions and Censorships

Swissterminal finds this particularly astonishing because WEKO based its much-discussed and criticized decision solely on this efficiency argument. Even after the surprising decision, WEKO initially denied Swissterminal, which is existentially affected by the GBN project, any access to the relevant documents. Later, in some papers that it provided to Swissterminal at their insistence, it made so many redactions and censorships that the meaning and statements of the relevant documents were either unclear or only partially discernible.

Ignored Recommendation of the FDPIC

Swissterminal then turned to the Federal Data Protection Commissioner (FDPIC). In his decision of 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 did not comply with this recommendation from the Federal Data Protection Commissioner. Contrary to legal requirements, the commission also refrained from issuing a corresponding decision that could be challenged ex officio.

Upon request, Swissterminal grants access to the files.

Photo: © Swissterminal

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