The canton of Aargau receives Insight into WEKO investigations against two construction companies. This was decided by the Federal Supreme Court on March 18, 2021 (BGer 2C_1039/2018, 2C_1052/2018; the same in the basic considerations: BGer 2C_1040/2018, 2C_1051/2018). In a five-judge panel and with unusually strong words, it overturned the decision of the Federal Administrative Court. The latter had made the inspection conditional on the sanction proceedings having been concluded and a violation of antitrust law having been established.
At the outset, the Weko had fined 18 companies for participating in competition agreements in road construction and civil engineering. Subsequently, the canton of Aargau requested access to the files of the proceedings in order to clarify claims for damages and, if necessary, to exclude companies from submissions. The Weko partially approved the request. Two companies successfully appealed to the Federal Administrative Court.
The core of the dispute was Art. 19 para. 1 let. a FADP. According to this, federal bodies may disclose personal data if these “for the receiver indispensable in individual cases for the fulfillment of its statutory task are”. Based on this, the Federal Administrative Court had found the data dispensable for two considerations:
“In summary, the Legal force of the sanction order (or a judgment replacing it) as a necessary condition to be able to examine the criterion of indispensability at all. Next, it is necessary that at least one Infringement of antitrust law established otherwise the assertion of a claim for damages appears to be so unlikely that a purposeful use of the data can already be excluded with sufficient certainty in the administrative assistance proceedings.”
(BVGer A‑604/2018, E. 8.5; similarly BVGer A‑592/2018, E. 9.5)
The Federal Supreme Court meticulously dissected Art. 19 (1) (a) DPA into its components and explained what is meant in this respect by “data” (E. 4.2), “recipients” (E. 5.2), the “fulfillment of legal tasks” (E. 5.3) and their “indispensability” (E. 5.4). On the last point, it became very clear: the lower court had “an inadmissible position” taken, “overlook essential aspects”, other aspects “mithout a word mentioned” and itself “improperly substituted both for the Canton of Aargau and for the Civil Court” (E. 5.4.8.2).
Materially, the Federal Supreme Court ruled that requests for inspection under Art. 19(1)(a) DPA neither the entry into force of the law nor the finding of a violation of antitrust law (E. 5.4.8.1). In addition to systematic and constitutional arguments, it also put forward a practical one:
“The lower court, with its case law according to which access to data can only be granted once the sanction proceedings have been legally concluded, also puts the canton of Aargau from the risk that its potential claims will become time-barred.” (E. 5.4.8.3)
In view of these limitation periods and the length of the proceedings to date, the Federal Supreme Court decided on the merits of the case itself (E. 6.1), upheld the appeal and essentially confirmed the decision of the Competition Commission (E. 9.1). In contrast to the lower court, which had conducted the proceedings anonymously upon request, it also included the name of the respondent in the heading as usual and dispensed with an anonymized judgment order (E. 8).