Facts
Parties and procedural history: [A. GmbH] (appellant, represented by attorney Max Auer) challenges the State Secretariat for Economic Affairs (SECO, respondent). The contested decision is the judgment of the Federal Administrative Court, Division II, of 11 June 2020 (B-270/2018, B-282/2018).
Facts: By decision of 8 February 2017, SECO granted the appellant an unlimited authorisation for cross-border placement of employees and cross-border temporary employment. By decision of 21 December 2017, this authorisation was supplemented with the condition that no placement or temporary employment activities were permitted for [B. AG] and the [B.] corporate group. The same condition applied on the same day to a branch in Niedergösgen.
Background: A shareholder of the appellant ([A.C.] , majority shareholder) is the son of the chairman of the board of directors of [B. AG] and [D. AG] . The mother is a delegate of the board of directors of [B. AG] and a board member of [D.] .
Proceedings: The Federal Administrative Court joined the proceedings and dismissed the appellant's appeals. By appeal in public law matters of 17 August 2020, the appellant requests annulment of the lower court's judgment and amendment of the decisions so that no conditions are imposed on it. SECO requests dismissal; the Federal Administrative Court waived a response.
Complaints of the appellant: Violation of economic freedom (Art. 27 Cst.), lack of statutory basis for the conditions, compliance with the independence requirement, disproportionality, in summary a violation of the right to be heard (Art. 29 para. 2 Cst.) and violation of the principle of equality (Art. 8 para. 1 Cst.).
Considerations
Admissibility: The appeal in public law matters is admissible against the final decision of the Federal Administrative Court (Art. 82 lit. a, Art. 86 para. 1 lit. a FSCA). The appellant has standing (Art. 89 para. 1 FSCA). The appeal, filed within the time limit and in the required form, is admitted.
Standard of review and interference with economic freedom: Economic freedom (Art. 27 Cst.) comprises the free exercise of a privately conducted gainful activity and freedom of contract, including the freedom to choose one's contractual partners. The conditions prohibiting placement and temporary employment activities for the [B.] group are tantamount to a de facto prohibition on contracting with part of the customer base and constitute an interference with economic freedom. The measures are consistent with the principles of economic policy, as they serve the socio-political protection of employees (Art. 94 para. 1 Cst.). The justification under Art. 36 Cst. must be examined.
Severity of the interference and statutory basis: A serious interference requires a clear and precise basis in a formal statute (Art. 36 para. 1 sentence 2 Cst.). The Federal Supreme Court leaves open the question of the severity of the interference, since the conditions can be traced back to a basis in formal statute. The lower court had characterised the conditions as ancillary provisions, which alone does not determine severity; a de facto prohibition on contracting with an important contractual partner may well be serious.
Lawfulness of the implementing provisions (Art. 8 para. 3 and Art. 32 para. 2 RecO): Art. 3 para. 1 lit. c and Art. 13 para. 1 lit. c RecA require that the placing or temporary employment undertaking does not conduct any other business that could endanger the interests of job seekers, employees or deployment undertakings. The Federal Council was entitled to specify these requirements by ordinance on the basis of Art. 3 para. 5 and Art. 13 para. 4 RecA. The statutory provisions are not exhaustive; the situations of endangerment are diverse and the concretisation was anticipated in the legislative process. The purpose provision of Art. 1 lit. c RecA alone is not sufficient as a basis, but the implementing provisions remain within the legislator's evaluations. The implementing provisions are therefore compatible with the statute, insofar as they exclude a close economic or personal connection between the lending or placing undertaking and the deployment undertaking.
Public interest and the independence requirement: The protection of employees is a weighty public interest. Temporary employees are particularly at risk in the triangular relationship (lack of enforceability of employment law claims, short deployment periods, limited prospects of advancement, precarious employment conditions, shorter notice periods under Art. 19 RecA, minimum wage where a collective labour agreement applies). Conflicts of interest between the lender and the deployment undertaking serve to protect employees; where this opposition is absent due to a close connection, the mechanisms in favour of employees are undermined. The lower court was entitled, without violating federal law, to assume that the required independence is lacking: the family ties carry the risk that the [B.] group would use the appellant to maintain a pool of permanent temporary workers and thus circumvent permanent employment; the majority shareholder has little incentive to optimise wages. The cooperation agreement of 13 November 2015 shows a detrimental blending of spheres of interest (lending according to the specifications of [B. AG] , wage arrangements determined by the deployment side). Additional taking of evidence (hearing of employees of [B. AG] ) was not necessary; the anticipatory assessment of evidence does not violate the right to be heard (Art. 29 para. 2 Cst.).
Equal treatment with 'staffing firms': The complaint of arbitrariness and unequal treatment compared with group staffing firms is unfounded. These typically lend in the form of temporary work with an employment contract independent of deployment (Art. 27 para. 3 lit. b RecO), bear the risk…