Inadmissibility of petitions based on a performance contract for home care in the absence of prior contractual conciliation

Facts

On 16 January 2013 and 14 February 2013, the State of the Canton of Ticino, represented by the Division of Social Action and Families of the Department of Health and Social Affairs, and the Servizio di assistenza a domicilio, joint-stock company (the appellant), signed a performance contract for the provision of home assistance and care services for the year 2013. The contract fixed the global contribution and regulated the procedure in case of litigation.

In October 2014, the Division, having found that the global contribution for the 2013 financial year had been exceeded, requested the repayment of CHF 57'760.--. The appellant contested the request, as disagreements arose concerning the cantonal calculation system in relation to its own cost accounting model. On 20 May 2015, however, the appellant repaid the amount in order to avoid enforcement proceedings.

By petition of 16 December 2015, the appellant brought an action before the Cantonal Administrative Court, requesting a finding that its cost accounting complied with the law, a recalculation of the 2013 account, and an order to conclude performance contracts for the years 2014 and 2015. By a second petition of 12 May 2017, it requested similar findings and the conclusion of contracts for the years 2016 and 2017, with financing of CHF 177'060.11 for 2016.

By two judgments of 24 July 2020, the Cantonal Administrative Court declared both petitions inadmissible. In the first case (file no. 53.2015.2), it held that the conciliation procedure provided for in Art. 12 of the contract had not been carried out and that no contracts had been concluded for 2014 and 2015. In the second case (file no. 53.2017.3), it held that no contract had been concluded after 2013.

The appellant challenges the judgments before the Federal Supreme Court by two public law appeals, complaining of the arbitrary application of cantonal procedural law and the violation of federal law, in particular Arts. 29 and 29a Cst. The cantonal court maintains its judgments, while the Division requests that the appeal against judgment no. 53.2017.3 be dismissed.

Considerations

The appeals, concerning the same parties and analogous facts, are dealt with jointly. They are directed against final decisions rendered in public law matters by a cantonal authority of last instance, are timely and in principle admissible, the appellant being particularly affected.

As to the first petition, the appellant argues that Art. 12 of the contract, which provides for a conciliation procedure before a joint commission prior to an action directly under Art. 92 let. b LPAmm, would violate Art. 4 LPAmm and Art. 7 para. 2 APA, rendering the provision void. The Federal Supreme Court recalls that the violation of cantonal law is examined only under the restricted scope of arbitrariness (Art. 9 Cst.), and that in interpreting administrative law contracts, the true and common intention of the parties must first be sought (Art. 18 para. 1 CO).

The Federal Supreme Court notes that it is doubtful at the very least that the appellant, having signed the contract without reservation and with a clear litigation clause, may in good faith invoke its invalidity; the question may nevertheless remain open because the appeal is in any event unfounded. Art. 4 LPAmm prohibits altering statutory jurisdiction by agreement, but Art. 12 of the contract does not exclude the jurisdiction of the Cantonal Administrative Court: it merely provides for a mandatory preliminary conciliation. According to legal scholarship, Ticino procedural law does not exclude an arbitration clause in administrative law contracts. The cantonal solution, according to which conciliation is a condition of admissibility of the direct action, is therefore not manifestly untenable. Art. 7 para. 2 APA is not applicable, as this is not a procedure before a federal authority.

The appellant further argues that the parties had implicitly waived conciliation, since the Canton had not contested the jurisdiction of the court seised nor requested the establishment of the commission. This complaint is insufficiently substantiated under Art. 106 para. 2 FSCA: the wording of Art. 12 is clear, the appellant does not demonstrate a different intention of the contracting parties, the Cantonal Court explained that it was for the…