Facts
On 27 September 2021, five collecting societies (the collecting societies) filed a joint tariff (GT x) as an agreement tariff with the Federal Arbitration Commission for the Exploitation of Copyright and Related Rights (hereinafter: Arbitration Commission) for approval. The Arbitration Commission informed the collecting societies that it intended to change its previous practice regarding the determination of procedural costs. The collecting societies rejected this and argued for the retention of the previous practice.
By decision of 21 May 2022, the Arbitration Commission approved GT x and set the decision fee at CHF 15,000. The total procedural costs (including expenses) amounted to CHF 16,936.70 and were imposed on the collecting societies. The collecting societies appealed this decision to the Federal Administrative Court, which partially overturned the contested decision on 13 March 2023 and instructed the Arbitration Commission to redetermine the procedural costs.
The Federal Department of Justice and Police (FDJP) then filed an appeal in public law matters with the Federal Supreme Court on 28 April 2023. It requested that the judgment of the Federal Administrative Court be set aside and that the Arbitration Commission’s decision of 21 May 2022 regarding the procedural costs be confirmed. The collecting societies requested that the appeal be dismissed.
The Federal Supreme Court granted the FDJP’s appeal.
Considerations
The dispute between the parties focused exclusively on the Arbitration Commission’s determination of the decision fee in the approval procedure for GT x. The legal basis for the fee determination is Art. 16a para. 1 CopO in conjunction with Art. 2 para. 2 CopA. According to these provisions, the decision fee is based on the financial interest underlying the proceedings. The Arbitration Commission set the financial interest at CHF 15 million and determined the decision fee at CHF 15,000, which corresponds to the lowest bracket in the table provided for in Art. 2 para. 2 CopA.
The collecting societies argued that no financial interest existed in the case of an agreement tariff, as there was no dispute. The Federal Supreme Court rejected this objection. It clarified that although the approval procedure for an agreement tariff is not contentious, a financial interest nonetheless exists, as the approved tariff has direct financial implications for the collecting societies. In the present case, the Arbitration Commission was not only required to examine the reasonableness of the tariff but also, as a preliminary matter, to determine whether the substantive expansion of the tariff was legally permissible. This examination had immediate economic consequences for the collecting societies, as they would be unable to claim compensation without an approved tariff. The financial interest was therefore to be seen in the expected revenue from the approved tariff.
The lower court (Federal Administrative Court) took the view that the financial interest could only arise from the differences in the assessment of reasonableness. The Federal Supreme Court rejected this interpretation. It stated that in the approval procedure, the Arbitration Commission was required to examine the tariff in its entirety and take into account the economic impact of the tariff. A restriction to the differences in…