Facts
The appellant company [A. SA] , whose registered office is in the canton of Neuchâtel, has as its purpose, inter alia, the manufacture, distribution and operation of interactive amusement and leisure devices. On 4 April 2019, it referred the matter to the Intercantonal Supervisory Authority for Gambling (formerly the Intercantonal Commission for Lotteries and Betting; hereinafter: the Intercantonal Authority) so that it would classify six free promotional games installed on interactive terminals operated in public places.
On 5 December 2019, the Intercantonal Authority announced its intention to suspend the procedure, on the ground that the Federal Gaming Houses Commission (hereinafter: the Federal Commission) had been seized of a request by the company to classify the same games and that, if these games were to be classified as casino games, the pending procedure would become moot. The company objected to this suspension on 16 December 2019.
By decision of 9 January 2020, the Intercantonal Authority suspended the procedure until the outcome of a criminal procedure pending before the Federal Commission against two directors of the company and a third party, the operator of a public establishment, is known. The company challenged this decision before the Appeals Commission established by the Intercantonal Agreement of 7 January 2005 on Lotteries and Betting (IALB), now the Intercantonal Gambling Court (hereinafter: the Intercantonal Court). By judgment of 29 September 2020 (case 22-20), the Intercantonal Court dismissed the appeal.
The appellant company lodges a public law appeal and, in the alternative, a constitutional appeal, seeking annulment of the judgment and an order that the Intercantonal Authority rule on the classification request. The Intercantonal Court waives its observations. The Intercantonal Authority contends that the appeal is inadmissible or, in the alternative, that it be dismissed.
Main question: does suspending the classification procedure until the outcome of a criminal procedure unrelated to the request constitute a denial of justice and a breach of the principle of expeditious handling, and is the appeal against the interlocutory suspension decision admissible in light of irreparable harm?
Considerations
On admissibility, the Federal Supreme Court notes that the Intercantonal Court, established on the basis of the Intercantonal Agreement on Gambling (IAG), constitutes a cantonal court of last instance within the meaning of art. 86 FSCA. The suspension decision of 9 January 2020 is an interlocutory decision, which concerns neither jurisdiction nor recusal; the resulting dismissal judgment likewise has this character (ATF 142 III 653). The appeal is therefore admissible only if the decision causes irreparable harm within the meaning of art. 93 para. 1 let. a FSCA, let. b clearly not being met.
According to case law, a suspension of procedure may cause irreparable harm where it entails a serious risk of breach of the principle of expeditious handling, constituting formal denial of justice (ATF 143 IV 175). In the present case, the last act of the Intercantonal Authority dates from December 2019, the criminal procedure had not concluded at the date of the judgment, and the appellant is not a party to that procedure. It cannot therefore be excluded that a serious risk of breach of the requirement of expedition exists; the appeal is admissible.
On the complaint of inaccurate establishment of the facts, the Federal Supreme Court recalls the conditions of art. 97 para. 1 FSCA and the prohibition of appellate criticism. It holds that the Intercantonal Authority was not seized by the Federal Commission for a joint classification; the collaboration between the authorities not being established by the prior authority, its absence is retained, which does not influence the outcome of the dispute.
On the merits, in light of art. 29 para. 1 Cst., the reasonable time limit is assessed according to the complexity, the stakes, and the conduct of the litigant and of the authorities. The competence of the Intercantonal Authority to classify games of large scale derives from…