Facts
Swissgrid AG, as the national grid company, took various measures on 22 August 2018 to maintain the security of the electricity grid, in particular by intervening in the operation of the B. AG power plants. This resulted in a deficit in the energy balance of the compensation group of A. AG, which the latter was unable to compensate. Swissgrid then invoiced A. AG for the costs of the compensation energy. A. AG and B. AG filed an action against Swissgrid AG with the Commercial Court of the Canton of Aargau, requesting in particular the correction of the compensation energy account of the A. AG compensation group.Considerations
The Federal Tribunal ruled that Article 5, paragraph 5, of the Electricity Supply Ordinance (OApEl), which provides that the obligations arising from the agreements referred to in paragraphs 2 and 3 are to be enforced through civil proceedings, is contrary to Article 164 and Article 182, paragraph 1, of the Federal Constitution. Such a regulation, which…