Determination of party compensation in the appeal procedure against the FCA

Facts

Parties and procedural history:

The Federal Customs Administration (FCA), represented by its Directorate of Criminal Enforcement, filed an appeal in public law matters on 12 May 2025 against the judgment of the Federal Administrative Court of 19 March 2025 (A-1141/2024). The subject of the appeal was the determination of party compensation in favour of the managing director and the [B. GmbH] in liquidation (hereinafter: the importer) by the Federal Administrative Court.

Summary of facts:

The managing director was employed as managing director of the importer until 7 December 2023; the importer was founded on 28 December 2012 and dissolved on 5 December 2023. At the time of the appeal, the importer was in liquidation, but its deletion from the commercial register had not yet taken place. On 12 August 2013, the then Swiss Federal Customs Administration (now FCA) granted the importer a tax relief for the purchase of biodiesel. In December 2015, the FCA received a report of possible unlawful use of tax exemptions. On 3 March 2017, the FCA ordered the managing director and the importer to pay a total of CHF 1,522,870.50 (mineral oil taxes, mineral oil tax surcharges, import duties and default interest) jointly and severally. The managing director and the importer appealed against this order, which was dismissed by the FCA on 26 April 2018. They then filed an appeal with the Federal Administrative Court, which, by judgment of 7 May 2019, partially granted the appeals and set the amounts to be paid at CHF 632,744.75 (mineral oil taxes), CHF 413,829 (mineral oil tax surcharges) and CHF 83,725.90 (import duties). The case was also referred back to the FCA for a new determination of default interest and the cost and compensation consequences.

An appeal to the Federal Supreme Court (judgment 2C_535/2020 of 23 July 2020) was partially granted. The Federal Supreme Court awarded the managing director and the importer party compensation of a total of CHF 10,000 and referred the case back to the Federal Administrative Court for a new determination of the cost and compensation consequences. After a further referral, the Federal Administrative Court set the costs of the first instance at CHF 4,400 and ordered the FCA to pay each of the managing director and the importer party compensation of CHF 19,200 (judgment A-4651/2021 of 6 October 2020).

By order of 29 January 2024, the FCA dismissed the appeals of the managing director and the importer regarding the "import group 1" and set the procedural costs at CHF 4,180. It also ordered that the managing director and the importer be paid party compensation of a total of CHF 46,584.55 (including VAT and expenses). On 21 February 2024, the managing director and the importer filed an appeal against this order with the Federal Administrative Court and requested that party compensation be set at CHF 80,000 plus VAT. The Federal Administrative Court partially granted the appeal and set party compensation at CHF 62,343, based on an hourly rate of CHF 400. On 12 May 2025, the FCA filed an appeal in public law matters with the Federal Supreme Court against this judgment.

Legal context:

The appeal concerns the determination of party compensation in the context of an appeal procedure against an order of the FCA. The importer is in liquidation, but its deletion from the commercial register has not yet taken place. The managing director and the importer were represented by lawyers at all stages of the proceedings. The FCA disputes the amount of party compensation set by the Federal Administrative Court and in particular alleges an underuse of discretion and an impermissible review of reasonableness by the Federal Administrative Court.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court examines its jurisdiction and the admissibility requirements ex officio. The FCA’s appeal is admissible as it is directed against a judgment of the Federal Administrative Court and meets the requirements of Art. 82 lit. a, Art. 86 para. 1 lit. a, Art. 90 and Art. 100 para. 1 FSCA. The FCA is entitled to file the appeal as the dispute concerns mineral oil tax, mineral oil tax surcharge and import duties, for which the FCA is responsible. The passive legitimacy of the importer is given as it is still in liquidation and has not yet been deleted from the commercial register. The appeal is therefore admissible.

2. Review of the legal violation:

The Federal Supreme Court examines whether the Federal Administrative Court violated federal law by awarding party compensation of CHF 62,343 to the managing director and the importer. The amount of party compensation is governed by Art. 64 para. 1 APA and Art. 8 para. 2 RILO-APA, which refer to the Regulation on…