In its decision of October 22, 2021 (1C_333/2020The Federal Court of Justice (Bundesgerichtshof), which is scheduled for official publication, ruled on a dispute concerning the Federal Arbitration Act. The dispute concerned access to documents submitted to the Federal Arbitration Commission for the Exploitation of Copyrights and Related Rights by collecting societies in the proceedings concerning a new Common Tariff GT 7 (remuneration for the use of works in schools). The Arbitration Commission had refused access on the grounds that the Access to the documents concerned is not subject to the Public Access Act..
According to BGÖ 2 para. 1, the Public Access Act applies, inter alia, to. Federal Administration; and according to BGÖ 3 para. 1 lit. a BGÖ are, inter alia, proceedings of the State and administrative justice excluded from the scope of application.
The BGer concludes that the BGÖ is applicable to the Arbitration Commission:
The Arbitration Commission is Part of the federal administrationTherefore, the BGÖ is applicable in personal terms:
According to Art. 7a para. 1 lit. a RVOV extra-parliamentary commissions are explicitly part of the decentralized federal administration. Annex 2 lists the extra-parliamentary commissions exhaustively (Art. 8 para. 2 RVOV); the Arbitration Commission, as a market-oriented extra-parliamentary commission, is part of this list and is assigned to the FDJP (Annex 2 no. 2 RVOV). This (administrative) assignment of the Arbitration Commission to the FDJP is also found in the URG (cf. Art. 58 para. 1 URG). However, there are no indications that the Arbitration Commission is assigned to the judiciary – in particular to one of the federal courts – neither in the URG nor in other federal laws […].
The documents concerned by the request for information in the present case originate from the tariff approval proceedings concerning the Common Tariff GT 7 (School Use), in which an agreement tariff was submitted to the Arbitration Board and no possible third parties filed contrary requests […]. Since no member of the Arbitration Board had requested that a meeting be held, the request for approval of the tariff was dealt with by circulation. Thus, the Arbitration Board did not hold a meeting or an (oral) hearing of the parties. Since the two parties had agreed on a tariff, the Arbitration Board in the tariff approval proceedings concerning Joint Tariff GT 7 (School Use) took no dispute resolution function Its sole function was to approve the tariff. In this respect, it acted as Approval authority […].
As a result, the Arbitration Commission had No jurisdictional function exercised:
In summary, the Arbitration Commission does not exercise any adjudicatory function in the tariff approval procedure, at least if the collecting societies have agreed on a tariff with the user associations and no possible third parties have filed contrary requests. As first-instance administrative proceedings the tariff approval procedure concerned in the present case is therefore subject to the FCO and is not excluded from its scope of application pursuant to Art. 3 (1) (a) (5) of the FCO.
The BGer leaves open whether this would also apply if the parties do not agree on a tariff:
Moreover, it can be left open here what the function of the arbitration commission is in a tariff approval procedure in which the parties could not agree on a tariff or in which any third parties made contrary requests, and whether this can at best be described as a dispute decision.