Facts
On January 17, 2009, X. allegedly accidentally traveled in the first class of a double-decker S-Bahn with self-control from Zurich to Schaffhausen using a second-class ticket. The train crew then charged him a surcharge of CHF 80.- for routes with self-control as well as a time surcharge of CHF 25.-. As X. did not pay on the spot, the Swiss Federal Railways (SBB) subsequently sent him an invoice accordingly. X. complained to both the SBB and the Federal Office of Transport (FOT).
The FOT then initiated a supervisory procedure against the SBB and, in its decision of March 13, 2009, revoked the imposition of the surcharge. The SBB appealed against this decision to the Federal Administrative Court, which partially overturned the decision.
Both the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and the SBB then filed an appeal in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the imposition of the control surcharge is generally attributable to civil law, but the supervisory authority is authorized to instruct the transport company to refrain from unlawfully demanding tariff-regulated transport-related surcharges under supervisory law.
However, the completely undifferentiated treatment of grey and black riders, as long as there are no indications of intentional behavior or abuse, is unequal under the law and violates…