Rejection of Priority for Electricity Deliveries of the City of Winterthur in the Cross-Border Transmission Grid

Facts

The City of Winterthur, acting as an electricity supplier, demanded that Swissgrid AG grant priority within the meaning of Art. 17 para. 2 of the Electricity Supply Act (ESA) to its supply contracts with foreign suppliers for the supply of basic supply end consumers and exclude them from the auction. Swissgrid AG rejected this request. The City of Winterthur then approached the Swiss Federal Electricity Commission (ElCom), which also rejected the request. The City of Winterthur appealed against this decision to the Federal Administrative Court, which dismissed the appeal. Finally, the City of Winterthur filed a public law appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court first notes that the appeal is to be assessed according to the previous law, as the legal basis on which the appellant relies (Art. 17 para. 2 ESA) was amended as of 1 October 2017. The Federal Supreme Court concludes that Art. 20 para. 2 ESO, which requires proof that the supply obligation cannot be fulfilled without imports, represents a…