Facts

Parties and procedural history:

The GmbH [A.] and the GmbH [B.] (appellants) operate day-care centres in the city of LU and held the corresponding permits. On 1 January 2019, the City of LU, represented by the Department of Children, Youth and Family (KJF), amended the quality guidelines for the licensing and supervision of day-care centres. According to point 3.2 lit. b of these guidelines, by 31 December 2024, each operator was required to employ at least one qualified care worker with a recognised tertiary-level qualification (e.g. HF Childcare, HF Social Pedagogy). For 30 occupied places, this person was to be employed at 100% of a full-time position, with the percentage of the position being adjusted accordingly for fewer or more occupied places.

The appellants objected to these requirements and requested that the City of LU issue a contestable decision on 14 July 2021. On 18 November 2021, the City of LU ordered them to comply with the requirements from 1 January 2025. The appellants filed administrative court appeals with the Cantonal Court of LU against this decision, which were dismissed by judgment of 1 February 2023. On 9 March 2023, the appellants filed appeals in public-law matters with the FSCA against this judgment.

Appellants’ request:

The appellants requested a ruling that the quality guidelines, in particular the requirements regarding the organisation and training status of staff, were not legally binding due to insufficient legal basis and because they violated the formal and material requirements for an interference with economic freedom. They also sought the annulment of the Cantonal Court of LU’s judgment of 1 February 2023 and the City of LU’s decision of 18 November 2021.

Procedural issues:

The FSCA joined cases 5A_198/2023 and 5A_199/2023 pursuant to Art. 71 FSCA in conjunction with Art. 24 FCPA. The appellants also requested a second exchange of written submissions, the inclusion of the previous files and the joinder of the proceedings. The FSCA rejected the request for a second exchange of written submissions and dismissed the supplementary appeal filed after the deadline had expired. The appellants had not filed an application for restoration of the appeal period.

Considerations

1. Admissibility of the appeal:

The FSCA first examined the admissibility of the appeal. It found that the appeal in civil matters was the correct legal remedy, as this was a public-law matter related to civil law (Art. 72 para. 2 lit. b no. 6 FSCA). The appellants were entitled to file the appeal and had done so within the deadline. The appellants’ request for a declaratory ruling that the quality guidelines should not apply to all operators of day-care centres in the City of LU was deemed inadmissible, as no such abstract interest had been demonstrated. Furthermore, the appeal against the City of LU’s decision of 18 November 2021 was inadmissible, as only judgments of higher cantonal courts may be appealed (Art. 75 para. 2 FSCA).

2. Formal requirements for the appeal:

The FSCA recalled that the grounds for the appeal (Art. 42 para. 2 and Art. 106 para. 1 FSCA) had to be fully contained in the appeal filed within the deadline. A subsequent improvement or supplementation of the appeal in the context of a second exchange of written submissions was not permissible. The supplementary appeal filed after the deadline had expired was therefore dismissed. It was also noted that the holiday absence of the appellants’ legal representative did not constitute an unforeseeable obstacle justifying restoration of the deadline.

3. Substantive examination of economic freedom (Art. 27 Cst.):

The appellants argued that the obligation to comply with the quality guidelines violated their economic freedom (Art. 27 Cst.). The FSCA examined whether the interference with economic freedom was justified. It found that while economic freedom was guaranteed, restrictions were permissible under certain conditions (Art. 36 Cst.). The interference had to have a legal basis, be justified by an overriding public interest and comply with the principle of proportionality.

4. Legal basis for the interference:

The FSCA examined whether the quality guidelines provided a sufficient legal basis for the interference. It referred to the federal legal bases, in particular Art. 316 CC and the FCAO, which grant the cantons the power to regulate foster care. The cantons may enact further provisions to ensure the protection of minors. The quality guidelines of the City of LU were based on a regulation enacted by the Grand City Council, which was deemed to be a law in the…