Facts
The Electricity Works of the Canton of Zurich (EKZ) and the construction consortia Consorzio Comestei and Consorzio Lotto 814 complained about the refusal of network access by the Azienda Elettrica Ticinese (AET) for the power supply of their construction sites within the framework of the AlpTransit project. The AlpTransit Gotthard AG (ATG) as the client had concluded a power supply contract with the AET, according to which the AET was solely responsible for the power supply of the construction sites.
The Swiss Federal Electricity Commission (ElCom) had granted the application of the EKZ and the consortia for network access. However, the Federal Administrative Court overturned these rulings, as it qualified the ATG and not the consortia as end consumers within the meaning of the Electricity Supply Act (ESA).
Considerations
The Federal Supreme Court overturned the judgment of the Federal Administrative Court and confirmed the rulings of the ElCom. It stated that according to the wording of the ESA, network access is not limited to end consumers, but is generally available to any third party. An exception to the right of network access exists only for "fixed end consumers" with an annual consumption of less than 100 MWh per consumption site. Since the consortia exceed this threshold, they are entitled to network access.
The Federal Supreme Court clarified that the question of network access is to be separated…