Facts
The [X. AG] (Plaintiff) and the [Y. AG] (Defendant) are competitors in the field of extraction, processing, and transportation of sand and gravel materials as well as construction waste. The Plaintiff received a building permit in 2000 for the construction of a concrete processing plant. The Defendant appealed against it, but the Administrative Court of the Canton of Lucerne dismissed the appeal.
The Plaintiff then sued the Defendant before the High Court of the Canton of Lucerne for damages and satisfaction due to the construction delay caused by the appeal. The High Court dismissed the lawsuit, as it could not establish any inadmissible restriction of competition or unfair competition.
The Plaintiff appealed against the High Court's judgment and requested that the judgment be overturned and the case be referred back to the lower court for a new decision.
Considerations
The Federal Court examined the appeal and found that the Plaintiff based its claims on Art. 12 of the CartA and Art. 9 of the UCA. However, the Court concluded that the Defendant's construction complaint did not constitute an inadmissible restriction of competition or unfair competition.
The Federal Court stated that the filing of a construction appeal or complaint does not constitute a competitive act within the meaning of the CartA, as it lacks direct market relevance. The Plaintiff could therefore not derive any benefit from Art. 5 CartA.
The Court also examined whether the Defendant had hindered the Plaintiff in the initiation or exercise of competition or disadvantaged the market counterpart through its appeal. However, it concluded that the Defendant had not…