TF, 09.03.2026, 9C_354/2025
Facts
The customs administration ("Zoll Nordost") demanded import duties totaling CHF 339,750.30 from A.________ and the Flugzeugclub B.________. This claim stems from a domestic flight within Switzerland on 3 March 2019, during which A.________ was a passenger on an aircraft registered abroad. The aircraft is owned by the Flugzeugclub B., and A. holds a 10% co-ownership stake.
After their objection was rejected by the Federal Office for Customs and Border Security (FOCBS), A.________ and the Flugzeugclub B.________ (hereinafter: the appellants) appealed the matter to the Federal Administrative Court (FAC). During these proceedings, they requested a stay of the case.
The request for a stay was based on parallel proceedings initiated under the Freedom of Information Act. Through this action, they are seeking to obtain from the FOCBS rulings (advance decisions) allegedly granted to competitors. The appellants consider these documents essential to support their subsidiary argument based on the principle of equal treatment in illegality.
In an interim decision dated 16 May 2025, the FAC rejected the request for a stay and granted the appellants a deadline to file a potential reply, noting that it would rule on the offers of evidence at a later stage. The appellants have filed an appeal in matters of public law with the Federal Supreme Court against this decision to refuse the stay.
Law
The Federal Supreme Court notes that the contested decision, which refuses to stay the proceedings, is an interim decision within the meaning of art. 93 of the Federal Supreme Court Act (LTF). An immediate appeal against such a decision is admissible only under two alternative conditions:
- If it may cause irreparable harm (art. 93 para. 1 let. a LTF).
- If upholding the appeal may lead immediately to a final decision and thus avoid lengthy and costly evidentiary proceedings (art. 93 para. 1 let. b LTF).
Since the second condition is clearly not met, the admissibility of the appeal depends entirely on the existence of irreparable harm. According to established case law, such harm must be of a legal nature and must not be capable of being fully remedied later, even by a final decision favorable to the appellant. Mere factual harm, such as a delay in proceedings or increased costs, is insufficient. The requirement of irreparable harm must be interpreted restrictively to uphold the principle of procedural economy. It is the appellant's responsibility to demonstrate how this condition is met (art. 42 para. 2 LTF).
The Federal Supreme Court further specifies that a decision refusing a stay is treated as a decision on provisional measures within the meaning of art. 98 LTF. Consequently, only the violation of constitutional rights may be invoked, and the appellant is subject to a heightened duty to provide reasons (Art. 106(2) LTF).
Application to the present case
The Federal Supreme Court examines whether the refusal to stay the proceedings causes irreparable harm to the appellants. They contend that, without the requested rulings, they cannot validly support their subsidiary argument concerning equal treatment in illegality, which would violate their right to be heard.
The Federal Supreme Court rejects this argument for several reasons:
- The Federal Administrative Court (FAC) expressly reserved its decision on the offers of evidence, which it will make at the latest in its final judgment. The appellants therefore retain the possibility of formulating their evidentiary requests in their reply.
- The proceedings before the FAC are governed by the inquisitorial principle (Art. 12 of the Administrative Procedure Act), which means that the court must establish the relevant facts of its own motion, including those favourable to the individuals concerned.
- The outcome of the proceedings on the merits remains entirely open. The FAC could uphold the appellants' main argument (that the flight was lawful), thereby rendering their subsidiary argument—and consequently the need to obtain the rulings—moot.
- Above all, if the FAC were to render a final decision unfavourable to the appellants, they could challenge it before the Federal Supreme Court. In the context of that final appeal, they would then have the possibility of arguing that the refusal to stay the proceedings vitiated the content of the decision (Art. 93(3) LTF). The alleged harm is therefore not "irreparable," since it can be corrected subsequently.
The Federal Supreme Court concludes that the condition of irreparable harm under Art. 93(1)(a) LTF is not met. In the alternative, it notes that the appeal would be inadmissible in any event, since the appellants did not satisfy the qualified obligation to state reasons under Art. 106(2) LTF, having failed to invoke a violation of their constitutional rights in a detailed manner.
Outcome
The Federal Supreme Court does not enter into the merits of the appeal. The court costs, set at CHF 3,000, are to be borne by the appellants, jointly and severally. No legal costs are awarded. The case is referred back to the Federal Administrative Court so that it may set a new time limit for the appellants to file their reply.
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