Facts
In March 1999, UMS Schweizerische Metallwerke AG and Elektrizitäts-Gesellschaft Laufenburg AG filed an application with the Competition Commission to open cartel proceedings against BKW FMB Energie AG. BKW had allegedly abused its dominant market position as an electricity supplier by refusing to transmit electricity from EGL to UMS's production site via its grid network after the supply contract with UMS was terminated in 1999. The Secretariat of the Competition Commission subsequently opened an investigation against BKW on 13 July 1999. BKW filed a complaint against the jurisdiction of the Competition Commission. In December 1999, UMS concluded a new electricity supply contract with BKW, whereupon the Competition Commission discontinued the proceedings on 7 February 2000 and imposed procedural costs of CHF 9,078.15 on BKW. BKW filed a complaint against the cost order with the Federal Appeals Commission for Competition Matters, which upheld the complaint and revoked the cost regulation. Thereupon, the Federal Department of Economic Affairs filed an administrative court appeal with the Federal Supreme Court.Considerations
The Federal Supreme Court held that Art. 4 of the Federal Act on Measures to Improve the Federal Budget provides the legal basis for levying fees for administrative procedures and services of the federal administration. This fee obligation generally applies to all first-instance administrative proceedings, regardless of whether the decision was issued in the interest of the addressee or not. However, the Federal Supreme Court stated that not every triggering of an investigation automatically…