Facts
[A. AG] (formerly [B. AG] , registered office in Zurich) filed a draft simplified notification on 21 December 2015 with the Secretariat of the Competition Commission (WEKO) regarding the intended acquisition of sole control over [C. AG] . By letter of 30 December 2015, the Secretariat informed the parties that the notification was incomplete. On 6 January 2016, the companies filed the complete notification, expressly stating that there was no notification obligation and therefore no room for a preliminary examination; in the alternative, the submission should be accepted as a notification.
By letter of 5 February 2016, the Secretariat stated that WEKO considered the concentration project unobjectionable. At the same time, it served the preliminary examination of 4 February 2016 and levied a flat-rate fee of CHF 5'000.-- for it (invoice of 15 February 2016). The company did not pay the fee, as it was of the view that, in the absence of a notification obligation, no preliminary examination should have taken place.
The appeal to the Federal Administrative Court was dismissed by judgment of 6 October 2020 (B 1471/2016). The Federal Administrative Court qualified the imposition of costs as a decision within the meaning of Art. 5 APA and affirmed on the merits a notification obligation (to be applied extensively).
By appeal in public law matters of 13 November 2020, [A. AG] requested that the prior judgment be set aside and that the imposition of the fee be waived. The lower court waived a response; WEKO requested dismissal. The Federal Department of Economic Affairs, Education and Research did not comment.
The subject matter of the dispute was the flat-rate fee of CHF 5'000.-- for the preliminary examination under Art. 32 para. 1 CartA, and whether its levy presupposes the existence of a notification obligation under Art. 9 CartA, and whether the lack of an opportunity to clarify the notification obligation violates the guarantee of access to the courts under Art. 29a Cst.
Considerations
The Federal Supreme Court entered into the appeal. The appellant is materially aggrieved by the imposition of costs (Art. 89 para. 1 lit. b and c FSCA). That WEKO considered the project unobjectionable and that the appellant is not aggrieved in its main request is immaterial for standing, since the imposition of costs presupposes a preliminary assessment of the notification obligation. A current legal interest in the proceedings could be dispensed with.
The preliminary examination under Art. 32 CartA is designed as a two-stage procedure: the preliminary examination summarily clarifies both the notification obligation and indications of the creation or strengthening of a dominant position (Art. 10 para. 1 CartA). Based on the 1995 Dispatch on the CartA and case law (BGE 127 III 219), the existence of a notification obligation is not a prerequisite for the preliminary examination. Once a notification has been filed, WEKO must by law conduct a preliminary examination, regardless of whether a notification obligation exists.
In cost allocation, the polluter-pays principle applies in cartel law (Art. 2 CartA-FeeO-FeeO-FeeO). Art. 4 para. 3 CartA-FeeO provides for a flat-rate fee of CHF 5'000.-- for the preliminary examination. The regulatory provision is based on a sufficiently specific delegation norm (Art. 53a CartA) and, in light of the principles of cost recovery and equivalence, is not objectionable, especially since the amount would regularly be exceeded if calculated on the basis of time expended. Since the appellant filed a notification and thereby caused the preliminary examination, it owes the flat-rate fee. This fee obligation does not depend on the outcome of the preliminary examination, neither on the expiry of the one-month period without communication nor on a declaration of non-objection or the denial of a notification obligation. Whether a notification…