Latest Judgments of the Federal Court
Here you will find the most recent judgments of the Federal Court (BGer) from bger.ch. For the first three judgments, we present detailed summaries including facts, considerations, and decisions. For the other judgments, you will find a summary of the facts. The complete summaries of all judgments are available on the portal of Lexplorer. There, you can configure your newsletter and receive the latest judgments tailored to your areas of law.
2C_587/2023: Judgment regarding abstract norm control of cantonal legislation on public markets
Summary of the Facts
The plaintiffs – an interest group and several personnel leasing companies – filed an abstract norm control against Articles 9 and 10 of the new cantonal legislation on public markets (LCMP/NE), which was enacted by the Grand Council of the Canton of Neuchâtel. These provisions restrict the use of temporary workers for public construction projects. The plaintiffs argued that the contested articles violate superior law such as the inter-cantonal agreement on public markets (AIMP), federal law, and international agreements. The Federal Court examined the admissibility of the provisions and partially ruled in their favor.
Summary of the Considerations
The Federal Court is responsible for abstract norm control, as no intra-cantonal appeal is possible under cantonal law. The plaintiffs had sufficiently justified interests and met the requirements of the LTF, which is why the request was considered.
Summary of the Decision
The Federal Court annulled Article 10 and rejected the request for the annulment of Article 9, with the plaintiffs having to bear part of the court costs.
2C_662/2023: Control of abstract norms of Neuchâtel's law on public procurement
Summary of the Facts
In this case, several construction companies and professional associations submitted an abstract norm control request to the Federal Court against Article 6 paragraph 2, Article 9 paragraph 1, and Article 10 paragraph 1 of the new law on public procurement of the Canton of Neuchâtel (LCMP/NE). The plaintiffs argued that some of these provisions violate superior law, particularly the agreement on public procurement (AIMP 2019), the Federal Constitution, and other legal norms. Article 10 paragraph 1 LCMP/NE had already been annulled in a parallel proceeding.
Summary of the Considerations
1. (1.1–1.2.4) The Federal Court examines its jurisdiction and the admissibility of the procedure. Only plaintiffs 2 to 5 have qualitatively relevant interests for an abstract norm control. Article 10 paragraph 1 has already been annulled; therefore, the request in this regard is moot. 2. (2.1–2.3) The Federal Court states that it maintains the primacy of superior law in the assessment of abstract norms and remains cautious in the interpretation of provisions, especially when alternatives exist that may not violate rights. 4. (4.1–4.8) Article 6 paragraph 2 and Article 9 paragraph 1 LCMP/NE are both compatible with the AIMP 2019 and are necessary and permissible enforcement provisions. Article 6 paragraph 2 specifies the approach to ensure equal pay between women and men. Article 9 paragraph 1 emphasizes the client's right to specifically regulate subcontracting and temporary work in tenders. 5. (5.1–5.4) These articles do not impair the economic freedom guaranteed by the Federal Constitution (Art. 27, 94 BV), as they pursue legitimate public interests and are proportionate. 6. (6.1–6.3) The contested articles do not contradict federal legislation on the internal market (Art. 3 LMI), as they treat all suppliers equally and do not present hidden market access barriers. 7. (7.1–7.2) Article 9 paragraph 1 is not in conflict with federal labor law (LTr, LSE) or the Agreement on the Free Movement of Persons (ALCP). The norm contains no general prohibitions but allows targeted restrictions based on legitimate public interests such as quality assurance. 8. Plaintiffs 2 to 5 bear proportionate procedural costs, and the Canton of Neuchâtel receives reduced party compensation due to the partially successful preliminary proceedings.
Summary of the Decision
The request of plaintiff 1 is inadmissible, the request against Article 10 paragraph 1 is moot, and plaintiffs 2 to 5 must bear the costs.