Qualification of the Grid Connection Relationship as Public Law

Facts

B. AG (plaintiff, respondent) operates a distribution grid through which consumers are supplied with electricity. A. AG (defendant, appellant) is connected as an end consumer to this distribution grid. The grid connection relationship of the parties has been regulated by successive grid connection contracts since 1967, most recently by the grid connection contract of March 6, 2007.

On January 1, 2008, the Federal Electricity Supply Act (Stromversorgungsgesetz, StromVG) of March 23, 2007 largely entered into force. Until the end of 2013, the defendant was an end consumer with market access rights who waived grid access; until then, it was therefore an end consumer in the area of basic supply (Art. 6 para. 1 StromVG). At the beginning of 2014, it exercised its right to grid access (Art. 13 para. 1 StromVG).

The cantonal civil courts seized considered the dispute over the one-time grid cost contribution to be of a civil law nature and upheld the claim. The Federal Supreme Court qualifies the disputed grid connection relationship as public law, overturns the decision of the lower court and does not enter into the claim.

Considerations

The Federal Supreme Court qualifies the grid connection relationship in the area of basic electricity supply as public law. The following reasons are decisive:

The StromVG aims to create the conditions for a secure electricity supply and a competition-oriented electricity market. An essential element is the unbundling of grid operation and electricity production, which only then allows non-discriminatory grid access. The law conclusively specifies which components may be included in the end consumer's electricity price.

In the grid usage relationship, the upper limit of the fee for grid usage is prescribed by federal law and these fees are subject to regulation by the Federal Electricity Commission (ElCom). This relationship is in any case to be qualified as public law in the area of basic supply.

In the energy supply relationship, a distinction must be made: in the case of free choice of supplier, the relationship is to be classified as civil law, whereas in the area of basic supply it is to be classified as public law.

In the present case, it is about the grid connection relationship, which is indispensable to ensure the basic supply of the end consumers covered by it. The StromVG obliges the grid operators to enter into such grid connection relationships; the grid operators are therefore…