Temporary operating permit for double-deck long-distance trains: ramp gradient and equality for persons with disabilities

Facts

The Swiss Federal Railways (SBB) ordered 59 double-deck long-distance trains (IR100, IR200, IC200) from Bombardier Transportation GmbH in 2010. The Federal Office of Transport (BAV) approved the functional specification and type sketches in 2011 subject to conditions. An earlier procedure before the Federal Administrative Court and the Federal Supreme Court (2C_380/2012) concerned the wheelchair area.

On 30 November 2017 the BAV granted the SBB temporary operating permits until 30 November 2018; these were later extended until 31 December 2022. The organisation Inclusion Handicap challenged the decisions with numerous requests for relief, including concerning the ramp gradient, boarding edges, door-opening buttons, contrasts, acoustic signals, glare from the lighting and mirror lighting in WCs.

The Federal Administrative Court (A-359/2018, judgment of 20 November 2018) dismissed certain requests as moot, partially upheld the request concerning access via a boarding door, and obliged the SBB to provide at least one standard-compliant entrance and exit with a wheelchair pictogram per train. Otherwise it dismissed the appeal and waived court expert opinions. Inclusion Handicap was ordered to pay party costs of CHF 126'000.-- each to the SBB and Bombardier.

Inclusion Handicap filed an appeal in public law matters with the Federal Supreme Court. The SBB and Bombardier raised objections of forfeiture and res judicata. The BAV and the Federal Administrative Court requested dismissal or waived their right to comment, respectively. The central issue was whether the maximum ramp gradient of 15 % (Annex Section 4.2.2.8 TSI PRM 2014) is permissible under the law on equality for persons with disabilities.

Considerations

Inclusion Handicap has standing as a nationwide organisation for persons with disabilities (Art. 89 para. 2 lit. d FSCA, Art. 9 DDA). The current practical interest is affirmed despite the expiry of the original time limit, as the operating permits were extended and an empty formalistic procedure must be avoided.

The objection of res judicata and the objection of contradictory conduct by the SBB and Bombardier are rejected. A decision approved in the procedure under Art. 6a RailO only has a qualified trust-creating effect if the application documents contain concrete and binding determinations. This was not the case regarding the ramp gradient, as no binding information on the gradient was provided. Nor does the Constitution provide any basis for forfeiture of the right of an association to bring an action in the public interest due to contradictory conduct.

As to intertemporal law, the law at the time the original decisions were issued (30 November 2017) is decisive. The permissibility of the ramp gradient is governed by the TSI PRM 2014, which are binding via Art. 15b RailO and Art. 2 para. 2 RATDO. No NNTV on ramp design exists; the NNTV 'autonomous access to vehicles' concerns only the entrance at at least one defined entrance per train. The TSI PRM are of equal rank at ordinance level with Art. 3 para. 1 PTAO, so no compatibility review takes place between the two. The Federal Supreme Court reviews the TSI PRM, as ordinance law substituting for statute, incidentally for compatibility with the Constitution and international law.

Regarding the…