Restoration of the Suspensive Effect of an Administrative Complaint against the Ruling of the Federal Office of Communications

Facts

Swisscom Fixnet AG, a subsidiary of Swisscom AG, provides most participants in telephone traffic with the connection and physical access to the public telephone network. In connection with the so-called Carrier Preselection (CPS), Swisscom generates information that qualifies as interconnection information. The Federal Office of Communications initiated a supervisory procedure against Swisscom to clarify whether Swisscom was using this information in an unlawful manner.

The Federal Office found that Swisscom Fixnet AG had violated the obligation to use interconnection information about subscribers only in the context of interconnection procedures, as well as the secrecy of telecommunications. It instructed Swisscom Fixnet AG to immediately cease using confidential interconnection information and to inform the Federal Office of the measures it had taken in this regard.

Against this ruling, Swisscom Fixnet AG filed an administrative complaint with the Appeals Commission of the Federal Department of the Environment, Transport, Energy and Communications and requested the restoration of the suspensive effect of the administrative complaint. The instructing judge of the Appeals Commission rejected the application for restoration of the suspensive effect.

Swisscom Fixnet AG files an administrative court complaint, requesting that the interim judgment of December 6, 2002, be set aside and the suspensive effect of the administrative complaint be restored.

Considerations

The Federal Court considers that the interim ruling is itself subject to administrative court complaint, as the remedy is also open against the final decision. The complainant suffers a non-reparable disadvantage due to the withdrawal of the suspensive effect, as it is irreversibly worse off due to the withdrawal of the suspensive effect.

The complainant raises procedural objections, in particular the jurisdiction of the instructing judge to decide on the restoration of the suspensive effect and a violation of the right to be heard. The Federal Court finds that the instructing judge of the Appeals Commission UVEK was not authorized to issue the contested interim ruling, as the jurisdiction for precautionary measures pursuant to Art. 55 para. 3 APA and Art. 20 para. 5 VRSK is transferred to the President of the Appeals Authority.

The…