Comprehensive Balancing of Interests in the Context of the Water Protection Permit is not Prejudiced by the Federal Council's Concession Decision

Facts

In 1981, the Wynau Electricity Works AG (EWW AG) submitted a concession application for the demolition and reconstruction of its hydroelectric power plant on the Aare River. In 1988, the Grand Council of the Canton of Bern granted the required concession. Several environmental protection organizations appealed to the Federal Council, which in 1993 identified procedural deficiencies but nonetheless dismissed the appeal.

During the appeal proceedings before the Federal Council, EWW AG was able to obtain the permit for the first, undisputed construction phase. For the second construction phase, the Construction, Transport and Energy Directorate of the Canton of Bern granted the required permits under the Water Protection Act, the Spatial Planning Act, and the Nature and Heritage Protection Act in 1997. Environmental protection organizations appealed this overall decision to the Administrative Court of the Canton of Bern, which partially upheld the appeal.

Both EWW AG and the environmental protection organizations then filed administrative appeals with the Federal Supreme Court.

Considerations

The Federal Supreme Court decided that the Federal Council's concession decision does not prejudice the subsequent permit procedures, particularly those under the Water Protection Act. There is a lack of a statutory order of priorities that would establish a binding effect of the concession decision.

The authorities responsible for deciding on the water protection permit are…