Facts

The Political Municipality of Wil (appellant 1) and the Stiftung Schule St. Katharina (appellant 2) file two appeals in public law matters against the judgment of the Administrative Court of the Canton of St. Gallen, Division III, of 17 December 2019 (B 2019/144). Proceedings 2C_136/2020 and 2C_137/2020 concern Supplement I to the school contract. The respondents are A., B. and the party C., represented by the same legal counsel.

On 30 October 1996, the Kloster St. Katharina, a public law corporation, concluded with the Municipality of Wil a school contract for the operation of a girls' secondary school (Kathi). The Municipality undertook to pay the school fees for girls from Wil. The contract was approved in 1997 by the Catholic Administrative Council and the Education Department. Besides pupils from Wil, private pupils from other municipalities also attend the Kathi.

At the beginning of 2012, the Stiftung Schule St. Katharina, a private law foundation established by the convent, took over the operation of the Kathi. On 11 February 2016, the Wil Municipal Parliament approved the motion of the Municipal Council to adapt the school contract by means of a modified agreement (Supplement I). The planned measures included the assumption of the contract by the foundation, the limitation of the admission of girls from Wil to 70 percent, a right of selection for the municipality, the subjection of the Kathi to the Freedom of Information Act, and inspection rights for the Municipal Council and the Audit Committee. No referendum was taken against the parliamentary resolutions.

On 25 February 2016, the respondents lodged a voting appeal with the Department of the Interior. The Department initially declined to hear the appeal; the Administrative Court partially upheld the appeal and remitted the matter for a new decision. On 2 July 2019, the Department dismissed the voting appeal. On 17 December 2019, the Administrative Court upheld the appeal lodged against that decision, reasoning that the parliamentary resolutions lacked a legal basis.

By appeals of 3 February 2020, the Municipality of Wil and the foundation request the annulment of the lower court's decision, or alternatively its remittal. The respondents request dismissal. By presidential order of 17 February 2020, the Federal Supreme Court granted the procedural requests for free school attendance for the duration of the proceedings, or from the 2020/2021 school year onwards, respectively. The Administrative Court requests dismissal.

Main questions:

  • Standing of the Municipality of Wil (autonomy appeal) and of the foundation as co-participants
  • Existence of municipal autonomy for the transfer of compulsory primary school tasks to private parties and their financing
  • Requirement of a sufficiently specific formal statutory basis for transferring the operation of a school to a private school
  • Question whether Art. 126 GG/SG and Art. 3 GG/SG constitute a suitable delegation norm

Considerations

The proceedings are joined, since they are based on the same facts, are directed against the same judgment and raise related legal questions (Art. 71 FSCA in conjunction with Art. 24 FCPA). The Municipality of Wil has standing to appeal, as it is affected in its asserted autonomy as a bearer of sovereign authority; whether the autonomy actually exists is a question of substantive assessment and not of admissibility (Art. 89 para. 2 let. c FSCA). The foundation took part in the proceedings before the lower court as contractual partner, lost, and is therefore entitled to appeal (Art. 89 para. 1 FSCA). The complaint of a violation of Art. 9, 34 Cst., Art. 3 and 8 KV/SG is not examined for lack of sufficient reasoning (Art. 106 para. 2 FSCA).

In the area of primary education, the municipality has a relatively considerable freedom of decision. Neither federal law nor cantonal law precludes the transfer of primary school tasks to private parties or the financial support of such parties by the municipalities. The municipality must therefore be regarded as autonomous within the meaning of Art. 89 KV/SG.

Supplement I is to be qualified as a public law performance agreement. According to the case law of the Federal Supreme Court, the transfer of a state task to private parties requires a norm enacted by the competent authority; for important regulations, this must be a generic and abstract, sufficiently specific legal provision in the form of a statute. The decision to entrust a private institution with the operation of secondary school classes affects essential fundamental rights positions of the pupils from Wil…