Facts
The Swiss Bird Protection Association SVS/BirdLife Switzerland (SVS) applied to the Hunting Inspectorate (JI) of the Office for Agriculture and Nature of the Canton of Bern (LANAT) for the issuance of a contestable administrative decision on the determination of its right to appeal against shooting orders issued by the JI concerning grey herons and goosanders. The JI found that regulatory measures under Art. 12 para. 4 of the Hunting Act (JSG) as well as orders for several planned individual shootings of protected bird species under Art. 12 para. 2 JSG must be communicated to the SVS in a manner that allows for an appeal. Otherwise, it dismissed the request to the extent that it could be entered upon.
The SVS appealed against this decision to the Directorate of Economic Affairs of the Canton of Bern (VOL). The VOL denied an obligation to communicate orders for shootings affecting less than at least 10% of the local population and dismissed the appeal. The Administrative Court of the Canton of Bern also dismissed the SVS's appeal. The Federal Supreme Court upheld the appeal in public law matters.
Considerations
The Federal Supreme Court concluded that orders for the shooting of protected birds are to be qualified as administrative decisions, regardless of whether they are directed at private individuals or an administrative unit. If an administrative unit grants a private individual or a hierarchically subordinate authority a police permit, i.e. the permission to carry out an activity that is otherwise prohibited by law for police reasons, it decides on the applicability of a legal rule to itself, so that a contestable administrative decision is at hand.
This qualification is in accordance with the requirement of Art. 12 para. 1 lit. b of the Nature and Heritage Protection…