Facts
On January 1, 1988, the Swiss Master Builders' Association and various employee associations concluded the National Collective Agreement (LMV) for the Swiss main construction industry. By Federal Council Decree of February 10, 1989, certain provisions of the LMV, including Art. 10.4, were declared generally binding. According to Art. 10.4 LMV, the parity professional commissions are entitled to carry out or have carried out joint wage controls and investigations into employment conditions.
S. AG, a construction company that is not a member of the Swiss Master Builders' Association, refused to participate in a wage survey ordered by the Parity Professional Commission for the Construction Industry of the Canton of Lucerne. Thereupon, the professional commission applied to the Cantonal Government Council of Lucerne to order the control provided for in Art. 10.4 LMV against S. AG.
The Cantonal Government Council did not enter into the request, as there was no obligation to order the control under either federal or cantonal law. The professional commission appealed this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court first examined whether the appeal was admissible. It concluded that this was a civil dispute over property rights, for which the appeal was generally admissible. However, the amount in dispute was not expressly stated, so the Federal Supreme Court estimated it based on the circumstances of the case and concluded that the required minimum amount in dispute of 8,000 Swiss francs was reached.
On the merits, the Federal Supreme Court decided that the Cantonal Government Council is not competent…