Facts

Parties and procedural history:

The appellant is the Federal Department of the Environment, Transport, Energy and Communications (DETEC), represented by the Federal Office for the Environment (FOEN). The respondent is [A. AG] , a company operating the [A.] run-of-river hydropower plant on the High Rhine. This is a cross-border plant with 50 % sovereign shares each in Switzerland and Germany. The concessions of both countries expired on 10 October 2020, and the plant has since been operated on the basis of temporary permits.

Factual background:

[A. AG] submitted an application for renewal of the concession on 27 April 2005. By orders dated 10 October 2017 and 7 November 2017, the Federal Office of Energy ordered that, as part of the environmental studies for the concession renewal, measures for the remediation of fish migration and sediment balance were to be investigated, planned and proposed. On 5 October 2020, [A. AG] submitted applications for advance compensation of the planning costs for the years 2014 to 2018, claiming costs of CHF 130,665.89 (sediment balance) and CHF 1,203,427.46 (fish migration).

FOEN ordered compensation of 50 % of the claimed costs by orders dated 1 December 2020 and 8 December 2020, since Art. 34 EnA provides for full cost reimbursement only for inland hydropower plants. [A. AG] filed an appeal with the Federal Administrative Court, which set aside the orders and ordered full compensation. DETEC/FOEN then filed an appeal with the Federal Supreme Court.

Relevant submissions:

  • DETEC/FOEN argued that full cost reimbursement under Art. 34 EnA applies only to the Swiss sovereign share, since cross-border hydropower plants are also subject to remediation obligations under German law and a 50 % remediation due to the indivisibility of the water body is not possible.
  • [A. AG] contended that Art. 34 EnA clearly provides for full cost reimbursement and makes no distinction between inland and cross-border hydropower plants. The remediation obligation is based solely on the Swiss orders, and a reduction by the foreign sovereign share is not justified.

Considerations

Admissibility of the appeal:

The Federal Supreme Court examined jurisdiction and admissibility requirements ex officio. The appeal by DETEC/FOEN is admissible as an appeal in public law matters, since it is directed against a final judgment of the Federal Administrative Court and no exclusion grounds apply. The department is entitled to file an appeal, as the matter concerns the area of energy law. The appeal was filed in due time and form.

International obligations and their relevance:

DETEC/FOEN argued that Switzerland and Germany have entered into international obligations for the protection of the Rhine that require full remediation of the cross-border hydropower plant. The Federal Supreme Court examined whether these obligations influence the interpretation of Art. 34 EnA. It found that the relevant international treaties (Protection Convention for the Rhine and Agreement of 1879) merely contain objectives for the contracting states and do not create direct rights or obligations for private parties. Moreover, these treaties are not “self-executing”, so they cannot be invoked against the respondent. The international obligations therefore provide no guidance for the interpretation of Art. 34 EnA in the domestic context.

Interpretation of Art. 34 EnA:

The Federal Supreme Court examined the interpretation of Art. 34 EnA using the recognised methods (literal, historical, teleological and systematic interpretation).

Literal interpretation: The statutory text provides that the holder of a hydropower plant is to be reimbursed “the full costs for the measures under Art. 83a WPA or Art. 10 FishA”. The wording does not differentiate between inland and cross-border hydropower plants. However, the wording of the norm allows for different interpretations in the case of cross-border hydropower plants, since it is unclear whether the measures under Art. 83a WPA or Art. 10 FishA also cover the foreign sovereign share.

Historical interpretation: The legislative materials show that the Federal legislator introduced full cost reimbursement in particular to protect vested rights. It made no difference whether a current concession existed or a concession renewal was pending. The legislator intended to fully compensate all holders of hydropower plants for remediation measures in the areas of hydropeaking, sediment balance and fish migration. A reduction by the foreign sovereign share was not discussed during the legislative process.

Teleological interpretation: The legislator’s aim with full cost reimbursement was to create a financial incentive for the timely implementation of remediation measures to combat the decline in fish…