Requirement of international coordination for increasing the water use fee for the Reckingen power plant

Facts

The Kraftwerk Reckingen AG operates a hydroelectric power plant on the Rhine, the concession of which was granted by the Federal Council. With the amendment of the Federal Act on the Utilization of Hydroelectric Power in 1997, the federal maximum rate for the water use fee was increased. Kraftwerk Reckingen AG argued that according to Art. 49 para. 1 sentence 3 of the Act, international coordination with the state of Baden-Württemberg was required before the water use fee could be increased. The Appeals Commission of the Federal Department of the Environment, Transport, Energy and Communications dismissed the complaint of Kraftwerk Reckingen AG. Thereupon, Kraftwerk Reckingen AG filed an administrative court appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court stated that the wording of Art. 49 para. 1 sentence 3 of the Act in the German version is ambiguous, but the French and Italian versions clearly express that any amendment to the maximum water use fee must be the subject of an international agreement, for which the Confederation is responsible. This interpretation is also in line with the legislative history of the provision. Furthermore, it reflects Switzerland's international legal obligations, according to which a fair and equitable balance between the participating states must be achieved in the use of international waters. Due to the neighboring…