Dismissal of the request for clarification in connection with a merger project

Facts

Parties:
Federal Administrative Court (applicant), Ticketcorner AG (respondent), Competition Commission, Tamedia AG.

Facts:
On January 9, 2017, Ticketcorner Holding AG and Tamedia AG submitted a merger project to the Competition Commission (WEKO). WEKO prohibited the project with a decision of May 22, 2017. Ticketcorner Holding challenged this decision with an appeal, which the Federal Administrative Court did not consider. The Federal Supreme Court set aside the judgment of the Federal Administrative Court and referred the case back for a new decision. The Federal Administrative Court submitted a request for clarification regarding the judgment of the Federal Supreme Court.

Main question:
The Federal Administrative Court requested clarification as to whether the prohibition decision of WEKO against Tamedia had become partially res judicata and whether the Federal Administrative Court had to deal with the appeal on the merits.

Considerations

The Federal Supreme Court stated that a request for clarification under Art. 129 para. 1 FSCA is only admissible if the dispositive part of a judgment is unclear, incomplete, or ambiguous. The standing of the Federal Administrative Court to make the request was considered questionable, as the wording of the law only authorizes the parties to a proceeding to submit a request for clarification.

The Federal Supreme Court found that the question of the partial res judicata of the prohibition decision of WEKO against Tamedia was not part of the subject matter of the dispute. Requests for clarification that aim at a substantive amendment of the judgment or a subsequent new substantive examination of the matter are inadmissible. The question raised by the Federal Administrative Court went beyond the subject matter of the dispute and required an inadmissible amendment of the judgment.

With…