Facts
The SIX Multipay AG and the SIX Card Solutions AG, successors in law to Telekurs Multipay AG and Telekurs Card Solutions AG, respectively, have appealed against the decision of the Competition Commission of 5 November 2007, in which it rejected the repetition of procedural actions. The appellants claim that Vice-Director Olivier Schaller, who was responsible for the investigation, was biased and that therefore all procedural actions in which he participated must be repeated.
The Federal Administrative Court has partially upheld the appeal and found that Vice-Director Schaller was subject to a duty to recuse himself as of 14 May 2007. However, it also decided that the Competition Commission must ensure that no persons who have already participated in the formulation of the disputed proposal have any influence on the continuation of the investigation.
The appellants have appealed against this decision to the Federal Court and requested that the decision of the Competition Commission be set aside and that it be instructed to repeat all procedural actions in the proceedings 32-0205 in which Vice-Director Schaller participated.
Considerations
The Federal Court has dealt with the question of whether the Competition Commission was entitled to reject the repetition of procedural actions, although Vice-Director Schaller was biased. It found that the duty to recuse himself applied to Vice-Director Schaller as of 14 May 2007, since he had learned of the merger project of SWX, SIS, and Telekurs Holding AG at that time.
However, the Court also decided that the Competition Commission was not required to repeat all procedural actions in which Vice-Director Schaller participated. It found that the appellants had not proven that Vice-Director Schaller was biased before 14 May 2007, and that the official actions prior to that date were not…