Facts
Axpo Power AG and other power plant operators had made advance payments for system service costs to Swissgrid AG in 2009 and 2010, although the legal basis for this (Art. 31b para. 2 of the Electricity Supply Ordinance) was later classified as unlawful by the Federal Court. The power plant operators therefore demanded the reimbursement of these payments plus default interest.
The Federal Court had to decide from when default interest on the amounts to be repaid was owed and at what rate it should be calculated. The key question was whether a reminder was required to trigger the debtor's default, or whether the payments made under reservation already constituted a reminder.
Considerations
The Federal Court concluded that the payments made under reservation did not constitute a reminder and thus did not trigger default. A reminder was required to trigger the debtor's default and thus the start of the interest accrual. Since such a reminder was only made on 10 February 2011, default interest is only owed from that point in time.
Furthermore, the Federal Court denied a claim for compensation interest. While in exceptional cases, where someone is obliged to make a payment due to an unlawful order and makes the payment under reservation, compensation interest may be justified.…