Facts
Farnair Switzerland AG appointed X. as Head of Flight Operations ("Postholder Flight Operations") and notified the Federal Office of Civil Aviation (FOCA) of this on January 14, 2009. FOCA confirmed receipt and announced that it would contact X. for a required "Assessment". This took place on May 25, 2009 and consisted of an analysis of his dossier, an interview, and two written examinations. On June 3, 2009, FOCA informed Farnair that the request for approval of the nomination of X. as Postholder was rejected, as he did not meet the minimum requirement of 80 points.
Farnair filed a complaint with the Federal Administrative Court, which upheld its complaint and found that X. was a Postholder within Farnair's operational organization. However, the Federal Supreme Court upheld the appeal filed by the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and overturned the judgment of the Federal Administrative Court.
Considerations
The Federal Supreme Court states that appeals against judgments of the Federal Administrative Court in the field of air transport law are admissible for public law appeals to the Federal Supreme Court, as long as they do not concern the result of examinations and other assessments of competence. Since this case is about the admissibility of the disputed Assessment based on the applicable law and no longer about the specific result, the appeal is admissible.
Swiss air law is integrated into the European regulatory system through the Switzerland-EU Air Transport Agreement. According to the European regulations, an air carrier must have an Air Operator Certificate (AOC), which also regulates the flight operations and maintenance organization. For this purpose, the air carrier must have suitable Heads of…