Facts
X AG, the owner of a Ferris Wheel with a diameter of 32 m, had unsuccessfully applied since 1996 for the allocation of a site for this facility at the St. Gallen Autumn Fair. The permit was regularly granted to Y AG, which has a Ferris Wheel with a diameter of 44 m. X AG appealed against the rejection of its application for the Autumn Fair 2000 by the municipal trade police. The Department of Economic Affairs of the Canton of St. Gallen upheld the appeal and found that the licensing practice of the market police violated the principle of equal treatment of trade associates. The Administrative Court of the Canton of St. Gallen confirmed this decision.
The Political Municipality of St. Gallen subsequently filed a constitutional complaint with the Federal Court for violation of municipal autonomy, requesting that the judgment of the Administrative Court be overturned.
Considerations
The Federal Court examined whether the contested licensing practice of the Political Municipality of St. Gallen, whereby the site for a Ferris Wheel at the Autumn Fair was regularly allocated to the company with the largest facility (44 m diameter), constitutes a violation of the principle of equal treatment of trade associates contained in the economic freedom (Art. 27 BV).
The Federal Court concluded that the Political Municipality of St. Gallen may give preference to the applicant with the most attractive facility for the heavily…