Inadmissibility of the appeal against an interlocutory order on the advance payment of costs and legal aid in household levy proceedings

Facts

Parties to the proceedings: The appellant [A.] challenges a household levy under Art. 69 ff. RTVA. The opposing parties are Serafe AG and the Federal Office of Communications (BAKOM).

Proceedings before the lower court: On 2 July 2020, the appellant filed an appeal with the Federal Administrative Court against a decision of the BAKOM and simultaneously applied for legal aid. By interlocutory order of a single judge dated 22 September 2020 (A-3415/2020), the Federal Administrative Court rejected the application because the main action appeared hopeless based on a summary examination (Art. 65 para. 1 APA). The appellant had missed the deadline for appealing to the BAKOM. At the same time, an advance payment of costs of CHF 700.-- was required (Art. 63 para. 4 APA; Art. 4 FACFCR), with the warning that the appeal would not be admitted if payment was not made.

Proceedings before the Federal Supreme Court: On 12 October 2020, the appellant submitted a filing described as an 'administrative appeal', by which she requested the annulment of the interlocutory order, the annulment of the 'unlawful advance payment of costs', and access to files containing notes on five telephone conversations. The Federal Administrative Court forwarded the filing to the Federal Supreme Court on 14 October 2020. The Federal Supreme Court dispensed with investigative measures and with a second exchange of written submissions (Art. 102 para. 1 FSCA). The request for access to files had already been resolved by the order of the Federal Administrative Court of 14 October 2020.

Issue in dispute: Whether the filing is admissible as an appeal in public law matters and whether the appellant sufficiently challenged the interlocutory order by providing adequate reasoning.

Considerations

Submissions to the Federal Supreme Court must contain a request, reasoning and evidence (Art. 42 para. 1 FSCA). The subject matter of the dispute may be narrowed before the Federal Supreme Court, but it may not be extended or changed (Art. 99 para. 2 FSCA; BGE 143 V 19 E. 1.1). The reasoning must set out concisely why and to what extent the contested act violates the law (Art. 42 para. 1 and 2 FSCA). Although the Federal Supreme Court examines federal law ex officio (Art. 106 para. 1 FSCA) with full cognition (Art. 95 let. a FSCA), it only reviews the complaints raised, unless a violation of law is obvious. If sufficient reasoning is lacking, the Federal Supreme Court does not enter into the matter (BGE 145 V 161 E. 5.2).

The interlocutory order is independently contestable (Art. 93 para. 1 let. a FSCA; BGE 142 III 798 E. 2.3.1). Even with federal law that is examined ex officio, the appellant should at least have set out concisely to what extent the order violates the law. The filing obviously does not meet these requirements. The appellant apparently only wished to challenge the advance payment of costs and argued that the appeal had already been registered, which made non-payment obsolete. This objection is unsuccessful, since an advance payment of costs may be required at any stage of the proceedings, even…