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Often times, the winner was determined in advance by the applicants themselves. The companies agreed to around 100 public and private tenders for road and civil engineering projects in the canton of Aargau. They agreed who should charge the lowest price and get the job. 18 companies operating in Aargau were on the list published by the Weko Competition Commission in January 2012.
The authority imposed fines of around four million francs. Most of the fined construction companies accepted the sanction, four opposed. Three of them were satisfied with the subsequent reduction of the fines by the Federal Administrative Court. The Aargauer Umbricht Group, on the other hand, also challenged this decision and asked the federal court to cut the amount from around 1.2 million francs to more than half.
Inadmissible agreements per se are no longer controversial before the highest instance, but only individual cases. The strategy of the construction company in front of the Federal Supreme Court: It questions the evidence on which the buses were based. This is clear from the sentence published on Friday. At the center of the investigation was a handwritten list. Information on 186 announced projects was annotated on nine pages. The document came from a company that participated in the agreement, but later cooperated with the authorities and thus escaped sanction. In addition, other companies involved contributed to the detection and benefited from a penalty discount.
Federal court rejects criticism
The Umbricht group criticizes that the handwritten list is incorrect, incomplete and of little informative value. It cannot be ruled out that the document was created to incriminate competitors in connection with the Comko investigation. The complainant also expresses doubts about the statements of the other companies involved, which had worked as self-informants with the competition authority. The Aargau construction company maintains that they have a high level of self-interest by blaming their competitors and benefiting from reduced fines.
Federal judges are not convinced of these objections and reject the appeal. They share the lower court’s assessment that the handwritten document is adequate and compelling evidence. However, the Federal Administrative Court also requested more relevant evidence to support the allegations. The Federal Supreme Court supports this approach and also rejects the criticisms of the cooperating competitors’ handling of information: “The trial court carefully analyzed the individual evidence and compared and compared the statements in the context of self-disclosure with other subsequent statements and other aspects “.
The defeat before the highest court will be followed by high bills: in addition to the fine of around 1.2 million francs, the Aargau construction company will have to pay procedural costs of more than 50,000 francs. In addition, there is another 10,000 CHF for federal court proceedings.
Judgment of the Federal Court 2C_845 / 2018 of August 3, 2020
