Standing to challenge the restoration of a municipal monopoly on the collection of commercial waste by a third-party company

Facts

The appellant, [A. SA] , is a public limited company based in Carouge (GE), active in the transport, handling, management and marketing of waste.

In February 2017, the Municipalities of Vevey, Montreux and La Tour-de-Peilz concluded a collaboration agreement for the collection and joint transport of certain waste (incinerable, compostable, paper/cardboard), with the contract awarded to one or more carriers under the public procurement procedure.

By tender published on 11 April 2017, the Commune of La Tour-de-Peilz invited bids for three lots, including lot no. 1 concerning incinerable urban waste (DUI). The specifications defined commercial waste (DIB) as waste produced by businesses located in the municipal territory, comparable to urban waste, namely that of businesses with fewer than 250 full-time equivalent positions (EPT) whose composition is comparable to that of households. The contract was awarded on 12 July 2017 to [C. SA] ; the appellant, alone or as part of a consortium, did not appeal this award.

On 30 November 2017, the communes of Montreux, Veytaux, Vevey and La Tour-de-Peilz signed a contract with [C. SA] for 2018-2024, applicable to DUI and, from 1 January 2019, to DIB within the meaning of art. 49 ADWO.

On 9 November 2018, the appellant wrote to the communes arguing that the ADWO would exempt them from the waste of businesses with more than 250 employees, but that the situation would remain unchanged for businesses whose waste is not comparable to household waste, which were the appellant's clients.

On 13 November 2018, the Montreux roads department proposed restoring the municipal monopoly on the collection of DIB and advising businesses with fewer than 250 EPT to terminate their contracts with private carriers. On 13 December 2018, the municipalities sent a letter to all businesses in their territory announcing the restoration of the municipal monopoly on incinerable DIB from 1 January 2019 at the earliest and no later than 1 July 2019, and inviting businesses to terminate their agreements with private service providers.

The appellant lodged two appeals. The first (procedure MPU.2019.001) concerned the refusal of a new award; the Cantonal Court declared it inadmissible or, alternatively, dismissed it, by judgment of 25 July 2019, without appeal to the Federal Supreme Court. The second, dated 27 December 2018, sought the annulment of the letter of 13 December 2018 before the Administrative and Public Law Court of the Vaud Cantonal Court. By judgment of 24 September 2019 (GE.2019.0004), the latter declared the appeal inadmissible for lack of standing, the appellant being only indirectly affected, while leaving open whether the letter constituted a decision, and then alternatively dismissed the appeal on the merits.

The appellant lodges a public law appeal before the Federal Supreme Court, principally seeking annulment of the cantonal judgment and of the decision of 13 December 2018, and alternatively remittal. It requests suspensive effect, which was refused by presidential order of 10 January 2020. The communes seek dismissal of the appeal, and the Cantonal Court refers to its considerations.

Considerations

The Federal Supreme Court holds that the public law appeal (arts. 82 ff. FSCA) is admissible. It notes that the appellant challenges each of the grounds of the cantonal judgment, as required by case law (art. 42 para. 2 FSCA), the contested judgment having declared the appeal inadmissible and then alternatively dismissed it.

On the guarantee of access to a court (art. 29a Cst.), the Federal Supreme Court finds that the cantonal court did not decide whether the letter of 13 December 2018 was a decision, but assumed it was one before denying the appellant's standing. The complaint based on art. 29a Cst. and arts. 3 and 73 ff. AniWA-VD is therefore dismissed, as are the criticisms concerning the alleged existence of a decision, which are irrelevant to the present proceedings.

On the right to be heard (art. 29 para. 2 Cst.), the Federal Supreme Court recalls that the judge may waive certain evidentiary measures through anticipated assessment of the evidence, such a refusal being open to criticism only if it is arbitrary. The appellant has not shown how hearing witnesses or producing the prior decisions would be decisive for examining its standing. The complaint is dismissed.

On the establishment of the facts, the Federal Supreme Court recalls that it rules on the basis of the facts found (art. 105 para. 1 FSCA) and that a challenge must demonstrate arbitrariness (arts. 97 para. 1 and 106 para. 2 FSCA). The appellant does not show how the manner in which the monopoly was delegated in 2014 would be necessary to examine its standing, and the cantonal court properly took into account the proposal of the roads department. Whether an interest worthy of protection may be deduced from this is a question of law and not of fact. The complaint is rejected.

On standing to appeal, the Federal Supreme Court freely examines art. 111 para. 1 FSCA, standing before cantonal authorities being unable to be more restrictive than before the Federal Supreme Court. The appellant acknowledges that the cantonal definition (art. 75 AniWA-VD) corresponds to federal law, so the analysis is conducted under art. 89 para. 1 FSCA, requiring a special, close and worthy-of-protection relationship with the…