Allocation of Costs for Safety Measures in Case of Exceeding the Minimum Distance between High-Voltage Line and Building

Facts

The Swiss Federal Railways (SBB) operate a high-voltage line that runs across the property of the complainant C. When a commercial building was constructed on this property, the prescribed minimum distance between the line and the building was undercut. As a result, the Federal Office of Transport ordered remediation measures and obliged C. to reimburse the SBB for a portion of the costs. C. filed an administrative appeal against this, which was partially upheld by the Federal Department of the Environment, Transport, Energy and Communications (DETEC). C. then filed an administrative court appeal against the DETEC decision with the Federal Supreme Court.

Considerations

The Federal Supreme Court notes that both Art. 19 and Art. 21 of the RailA (Railway Act) are applicable to the present case. Art. 19 RailA obliges the railway company to take safety measures to protect the railway and prevent dangers to persons and property. Art. 21 RailA refers to dangers emanating from third-party installations that impair the safety of the railway installations.

The decisive factor for the allocation of costs is which of the two installations - the SBB's high-voltage line or the complainant's building - was present first. Since the line had existed for…