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Aug 21, 2020 at 8:04 AMThe Swiss container and logistics service provider Swissterminal AG continues its fight against the planned railway terminal ‘Gateway Basel Nord’. It has filed a complaint with the Federal Administrative Court against the WEKO (Competition Commission). In this, access to the relevant documents is requested. Here is the complete press release in full text.
Press Release from Swissterminal in Full:
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 ‘can eliminate 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, thus disregarding 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 – ‘could eliminate effective competition in the handling of containers, swap bodies, and semi-trailers in import and export traffic’. At the same time, however, the project improves the competitive conditions for the transport of goods by rail (so-called efficiency reasons).
However, WEKO did not comment at that time on 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, directly affected by the GBN project, was never given the opportunity to comment on the efficiency increase claimed by the GBN supporters during WEKO’s decision-making process. This is all the more shocking as WEKO justified its much-noticed and criticized decision solely with this efficiency argument.
No In-Depth Examination
Swissterminal therefore attempted to obtain access to the files from the Federal Council with a supervisory complaint against WEKO. In particular, Swissterminal argued that WEKO had failed to thoroughly examine the alleged 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 the WEKO decision.
No Transparency
This response also does not clarify the widespread astonishment regarding WEKO and its behavior surrounding the GBN decision. Because – contrary to what WBF claimed – Swissterminal did not actually request a substantive review of the WEKO 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 WEKO’s deliberately sought intransparency surrounding the decision. 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 at their 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 Ignores Data Protection Commissioner
The recommendation of the Federal Data Protection Commissioner was also practically ignored by WEKO. 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 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 decision that could be challenged ex officio. Thus, Swissterminal’s rights were once again grossly violated.
Complaint with 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 act and issue a decision that is necessary and challengeable according to legal provisions.
For Transparency and Competition
Swissterminal is convinced that this effort will make an important contribution to a transparent judiciary of WEKO and thus to a functioning competition in Switzerland.
Photo: @ Swissterminal
