Facts
The A. AG (appellant), a company based in U. that manufactures and trades cast articles, supplies electricity to the CKW AG (respondent). On 24 May 2013, [A. AG] filed an application with the Swiss Federal Electricity Commission (ElCom) for a decision in the dispute pursuant to Art. 22 para. 2 lit. a ESA for the years 2009 to 2013. It requested the determination of lawful grid usage tariffs and charges pursuant to Art. 14 et seq. ESA and the reimbursement of overpaid charges. It also demanded comprehensive access to files if figures other than those apparent from the annual invoices of CKW AG were used as the basis for calculation. On 30 September 2014 and 9 November 2016, identical applications were filed for the years 2014 and 2015 and 2016 respectively.
ElCom conducted a file access procedure and issued a ruling on 18 August 2021, in which it found that the grid usage tariffs invoiced by CKW AG were lawful and correctly applied. It rejected the application for reimbursement. [A. AG] then filed an appeal with the Federal Administrative Court on 27 September 2021, which dismissed the appeal by judgment of 22 November 2023. [A. AG] filed an appeal against this judgment with the Federal Supreme Court on 9 January 2024.
Considerations
The Federal Supreme Court first examined the jurisdiction of ElCom pursuant to Art. 22 ESA. It found that while ElCom does not have preventive approval authority over tariffs, it may subsequently review the lawfulness of tariffs in the event of a dispute or ex officio and intervene in the event of violations. The determination of tariffs is the responsibility of the distribution system operators, while ElCom only monitors compliance with legal requirements (Art. 6 para. 3 ESA).
The central issue in the review was whether ElCom, in the individual tariff review procedure pursuant to Art. 22 para. 2 lit. a ESA, must review tariffs on the basis of planned costs or actual values. The Federal Supreme Court confirmed that the so-called base year principle (pursuant to Art. 7 para. 7 ESO) applies both to dispute proceedings and to ex officio proceedings. Under this principle, the tariffs for a year are based on the actual values of the last completed financial year (base year) preceding the tariff period. ElCom may therefore compare the planned costs of the tariff year with the actual costs of the base year and rely on the values declared by the distribution system operator.
The appellant criticised ElCom for not conducting a complete investigation of the facts by not comparing the figures with CKW AG’s accounting records. The Federal Supreme Court rejected this allegation and emphasised that while ElCom is obliged pursuant to Art. 12 APA to clarify the facts ex officio, the cooperation obligation of the parties (Art. 13 APA) and…