Facts
The Federal Department of the Environment, Transport, Energy and Communications (DETEC) filed an administrative court appeal against the decision of the Federal Appeals Commission for Infrastructure and Environment (REKO INUM), which set the radio concession fee owed by Orange Communications SA for the year 2004 at 1,620,000 Swiss francs. The Federal Court dismissed the appeal.Considerations
The Federal Court concluded that the ordinance provision, which provided for an increase in the radio concession fee for mobile services from 1,500 to 1,560 Swiss francs per allocated high-frequency bandwidth up to 25 kHz, was not based on a sufficient legal basis. Article 39, paragraph 2 of the Telecommunications Act only provides the criteria of frequency range, frequency class, allocated bandwidth, spatial extent and temporal use for the assessment of the concession fee. The law does not know the "value of the frequencies" as an economic criterion. Although the Federal Council had proposed a corresponding amendment to the law, this is still pending in Parliament. Therefore, the ordinance provision, which introduces precisely this criterion, cannot be based on the law.
Since the Federal Council lacks a sufficient legal basis for the amendment to the ordinance, the application of the new provision…