Appeal by Pilatus Aircraft Ltd granted

For the time being, Pilatus does not have to discontinue its support of maintenance and repair services in Saudi Arabia and the United Arab Emirates. This is the decision of the Swiss Federal Administrative Court.

Symbolbild Pilatus
Foto: Keystone

On 25 June 2019, the Federal Department of Foreign Affairs (FDFA) banned Pilatus Aircraft Ltd from providing logistical support to the air forces of Saudi Arabia and the United Arab Emirates until further notice. The FDFA based its decision on the Federal Act on Private Security Services Provided Abroad (PSSA, in force since 1 September 2015). It explained its ban by stating that the employees dispatched by Pilatus to Saudi Arabia and the United Arab Emirates were contributing to the functioning of the supplied PC-21 training aircraft and simulators and that this equipment would be used for the training of future military pilots. Considering the military operations conducted by Saudi Arabia and the United Arab Emirates in Yemen the local logistical support provided by Pilatus to both armed forces is incompatible with Switzerland's foreign policy objectives.

On 20 August 2019, Pilatus filed an appeal against this ban with the Federal Administrative Court (FAC).

Manifest national interest affected?
Pilatus is a major employer in central Switzerland and is part of Switzerland's Security-Relevant Technology and Industry Base (STIB) due to its skills and capacities in aircraft construction. As a part of its review procedure, the FDFA should also have taken public interests such as preserving Switzerland's welfare and independence into consideration. These are manifest national interests which, if they clearly prevail, may under Art. 15 PSSA lead to an exceptional authorisation of an activity or service that would otherwise be prohibited. This is the case if, as demonstrated here, the activity or service does not involve direct participation in hostilities and is not used by the recipients to commit severe human rights violations. The competent authority submits the case to be assessed to the Federal Council, which is responsible for issuing an exceptional authorisation. If such an authorisation is not granted by the Federal Council, the matter is referred back to the authority for the issuance of a prohibition subject to appeal.

In this particular case, the FDFA considered that there was no clearly prevailing manifest national interest. It therefore issued the ban without submitting the matter to the Federal Council first. By taking this approach, the FDFA made a political assessment instead of the Federal Council, which it is not entitled to do under these circumstances.

The FAC therefore annuls the contested ruling on the grounds of violation of federal law and refers it back to the lower instance without making a decision on the merits.

This judgment may be appealed to the Federal Supreme Court.

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