Facts
On January 22, 2015, the Swiss Federal Electricity Commission (ElCom) issued a partial decision against [A. AG] and A. Schweiz AG to review the chargeable energy costs for the financial years 2009 and 2010. The two companies filed an appeal against this partial decision with the Federal Administrative Court. The Federal Administrative Court partially upheld the appeal and set aside the partial decision insofar as it concerned the inclusion of purely foreign supply contracts in the average price method. In all other respects, it dismissed the appeal.
Subsequently, ElCom resumed the tariff review procedure and issued a further partial decision on April 6, 2020, in which it determined, among other things, that the price advantages due to open grid access from the financial years 2009 and 2010 must be passed on. [A. AG] filed an appeal against this partial decision with the Federal Administrative Court and additionally filed a direct appeal in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that Art. 6 para. 5 sentence 2 of the Electricity Supply Act (StromVG), which came into force on June 1, 2019 and provides for a time limit on the obligation to adjust tariffs, is not applicable in the present proceedings for the financial years 2009 and 2010. The lower court had rightly confirmed ElCom's finding that the…