Facts
After the liberalization of telecommunications in Switzerland, Fibre Lac SA established a fibre optic cable network connecting the major cities of Geneva, Lausanne, Bern, Basel, and Zurich. For this purpose, it laid a bundle of pipes along the national highways, through which it inserted the fibre optic cables. On July 7, 2000, the Canton of Basel-Landschaft concluded an agreement with Fibre Lac SA regarding the ownership, cost allocation, and use of this cable pipe system.
Fibre Lac SA later filed a lawsuit against the Canton of Basel-Landschaft, claiming payment of CHF 10,853,704 plus interest. It also requested that the ownership of the infrastructure it had built be awarded to it and that it be granted the permit to use the national highway and public land.
Considerations
The Federal Court first notes that the agreement between the parties does indeed contradict Art. 37(1) of the Telecommunications Act, but this deviation is permissible as the aforementioned legal provision is merely of a dispositive nature. There is also no violation of Art. 35(4) of the Telecommunications Act, as the agreed services of Fibre Lac SA are not to be qualified as compensation for the use of public land.
However, the Federal Court criticizes that the Cantonal Court did not sufficiently examine the compliance with the constitutional principle of…