In the course of the Gateway Basel Nord legal disputes, the Federal Administrative Court has rebuked the Swiss Competition Commission’s (COMCO) actions. On 7 December 2020, the Court upheld an appeal made by the private container terminal operator Swissterminal AG against the Commission. As part of this ruling, COMCO was instructed by the Court to follow the recommendation of the Federal Data Protection and Information Commissioner (FDPIC). Thus, COMCO must either grant Swissterminal access to the relevant case documents or issue an appealable decree before the deadline. 

In connection with the controversial mega-terminal Gateway Basel Nord (GBN), COMCO’s actions have repeatedly provoked criticism. First, COMCO approved the GBN project, despite it being deemed “capable of eliminating effective competition.” Second, the Commission refused to grant affected parties access to the case documents relevant to its approval. Finally, COMCO ignored the FDPIC’s recommendation, thus disregarding applicable law.

The Federal Administrative Court’s ruling is now calling for COMCO to comply with legal order. As a consequence, Swissterminal must be granted access to the case documents or COMCO must issue a decree against which an appeal can be made. Thus far, the Commission has refused to do either.

Green light despite elimination of competition

In June 2019, COMCO announced it had no objections to the controversial GBN project. According to COMCO, the planned terminal is indeed capable of “eliminating effective competition in the handling of containers, swap bodies and semi-trailers in import and export traffic.” However, citing efficiency reasons, the Commission stated the GBN project would improve competitive conditions for the transport of goods by rail. COMCO did not disclose any information explaining how it came to the opinion GBN would lead to more rail competition.

No transparency from COMCO

Swissterminal and other parties directly affected by the GBN project were not given the opportunity to comment on the alleged efficiency increase cited by GBN proponents. With efficiency being the sole basis on which COMCO’s decision was made, this brought criticism. Furthermore, after its decision, COMCO initially refused to allow Swissterminal access to relevant case documents. Later, when COMCO agreed to send documentation, it covered up and blacked out information, so much so that the meaning and implications of the documents in question could not be deciphered by Swissterminal or were incomplete.

FDPIC recommendation ignored

In its decision of 4 March 2020, the FDPIC recommended COMCO to grant Swissterminal full access to the requested information. COMCO did not follow this recommendation issued by the Commissioner. Furthermore, contrary to the legal requirements, the Commission also failed to issue an order to this effect that could be officially challenged. As a result, Swissterminal’s rights were again violated.

The Federal Administrative Court’s decision directly reprimands these actions and works to restore Swissterminal’s rights as an affected party.