Facts
[D.] is the owner of a painting business in E. The Roman Catholic Church of the Canton of Lucerne publicly tendered construction work for the renovation of the S. building. [D.] submitted the most favorable offer for the interior painting work but did not receive the contract. The Cantonal Government Council of Lucerne dismissed D.'s supervisory complaint, as his company did not provide a guarantee for compliance with the provisions of the collective labor agreement.
[D.] subsequently filed a lawsuit against the Church for damages under the cantonal liability law. The cantonal courts dismissed the claim, as they were bound by the decision of the Government Council under the Liability Act and could not review the unlawfulness.
Considerations
The Federal Supreme Court upholds D.'s constitutional appeal and sets aside the contested decision. It finds that claims arising from state liability are of a civil nature and therefore subject to the right of access to a court under Art. 6 para. 1 ECHR.
The cantonal courts should have comprehensively reviewed the question of unlawfulness in the state liability proceedings in factual and legal terms. Instead, they merely relied on the decision of the Government Council, without examining the…