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BGE 25 I 450 ΓÇó Competence over complaint against refusal of peddling permits
BGE 25 I 450Federal Supreme Court Official Reports (BGE) / Band ISep 28, 1899Inadmissible
Two Italian applicants complained of the refusal of peddling permits by the Thurgau authorities, invoking equality, trade freedom, and the treaty with Italy. Although they filed parallel recourse to the Federal Council, the Federal Court held that the complaint’s legal character was governed by the freedom-of-trade issue and that the equality and treaty arguments were merely preliminary. It therefore declined jurisdiction and transmitted the file to the Federal Council.
Art. 31 BV, Art. 4 BV and the treaty with Italy of 22 June 1865; competence for complaints against cantonal measures concerning the exercise of trade and commerce. Where the petition is directed at the refusal of a peddling permit and the alleged violations of equality or treaty-based equal treatment appear only as prejudicial questions without independent petitum, the complaint is to be classified according to its dominant legal character. The authority competent to review freedom of trade and commerce is therefore also competent to decide the ancillary constitutional and treaty issues (consid. 1). Under Art. 194 OG the Federal Court must decline to enter and remit the file where competence lies with the Federal Council, possibly with recourse to the Federal Assembly under Art. 189 OG.
eventuell die Bundesversammlung (vergl. auch den letzten Absatz von Art. 189 Org. Ges.). beschlossen: