Intermediate Success for Swissterminal Against Gateway Basel Nord

In the context of the legal disputes surrounding the ‘Gateway Basel Nord’, the Federal Administrative Court rightly criticizes the Competition Commission (WEKO). The court accepts the complaint of the private terminal operator Swissterminal AG against the WEKO for refusal of legal action. The WEKO is instructed to follow the recommendation of the Federal Data Protection Commissioner. Either the WEKO must grant Swissterminal AG full access to the case files or issue a decision within a deadline that can be contested.

(Frenkendorf) In connection with the controversial mega terminal Gateway Basel Nord (GBN), the Competition Commission WEKO has repeatedly caused astonishment. First, the 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 a decision dated December 7, 2020, the Federal Administrative Court now rightly calls the WEKO to order. The court accepts the complaint of the private Swissterminal AG for refusal of legal action and instructs the 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 deadline that can be contested. Both had previously been denied by the WEKO.

Green Light Despite Elimination of Competition

Green light despite the elimination of competition is the subject of the legal dispute and a controversial decision by the WEKO. In June 2019, the 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 the WEKO – ‘could eliminate effective competition in the handling of containers, swap bodies, and semi-trailers in import and export traffic’. However, the project improves the competitive conditions for the transport of goods by rail (so-called efficiency reasons). The WEKO did not disclose the basis on which it concluded that the GBN project would lead to more competition.

Opaque Jurisprudence of the WEKO

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

Many Redactions and Censorships

Swissterminal finds this particularly astonishing because the WEKO based its much-noticed and criticized decision solely on this efficiency argument. Even after the surprising decision, the WEKO initially 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 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 dated March 4, 2020, he recommended to the WEKO – subject to the anonymization of personal data accepted by Swissterminal – full access to the requested information. However, the 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, contestable decision ex officio. Upon request, Swissterminal grants access to the files.
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