Facts
[Y. AG] is a foreign company that was awarded a contract for construction work on a transit gas pipeline in Switzerland as part of a public tender procedure. The Parity Professional Commission of the Construction Industry Canton of Lucerne found that [Y. AG] had violated provisions of the National Collective Labour Agreement for the Construction Industry 1998-2000 (LMV 2000) and had to pay a contractual penalty. [Y. AG] filed a lawsuit against this, claiming that it was not subject to the LMV 2000.
The High Court of the Canton of Lucerne upheld Y. AG's lawsuit, as there was no direct competitive relationship between [Y. AG] and Swiss companies. The Parity Professional Commission appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that an operation that offers an activity that is without competition on the domestic market does not have to be subject to a collective labour agreement (CLA) declared generally binding with regard to this activity, as an unfair competitive advantage cannot be obtained in this case. However, if the company carries out, in addition to the non-competitive specialty activity, work that is also offered by other companies, a competitive situation must be affirmed. In this case, the general principles for…