Facts
The 220kV overhead high-voltage line, built in 1953 by the Nordostschweizerische Kraftwerke AG (NOK), runs over the property (parcel no. x) of the owners B.A. and A.A. in the municipality of Niederwil. The easement permitting the line to remain was limited in time until 2001. At the end of 2012 Swissgrid AG took over the line and in 2014 requested the Federal Valuation Commission District 8 (ESchK) to grant a transitional right valid until 2030.
By judgment of 29 March 2016, the ESchK awarded compensation of CHF 2,800.- plus interest. On appeal by Swissgrid AG, the Federal Administrative Court reduced the compensation to CHF 423.35 plus interest and CHF 130.- without interest (decision A-3273/2016 of 7 February 2017). The Federal Supreme Court set aside this judgment on the appeal of the property owners on 18 July 2017 (judgment 1C_163/2017) and remitted the matter.
By decision of 14 May 2018, the ESchK ordered Swissgrid AG to pay CHF 12,826.- in compensation for diminution in value and CHF 423.35 for the transit of the line (in each case plus interest). Before the Federal Administrative Court, the property owners claimed a diminution in value of CHF 340,000.- plus interest; Swissgrid AG filed an incidental appeal requesting a finding that the expropriation caused no diminution in value.
By judgment of 1 November 2019, the Federal Administrative Court awarded the property owners CHF 340,000.- plus interest from 1 January 2001 for the diminution in value and partially upheld the incidental appeal. Swissgrid AG filed a public law appeal against this with the Federal Supreme Court on 6 December 2019.
Disputed issues: whether the appeal is excluded under Art. 83 lit. w FSCA, and whether, when examining adequate causation of the expropriation for the diminution in value (Art. 19 lit. b ComPurA), the current routing of the overhead line may be compared with a hypothetical underground line along the parcel boundary.
Considerations
Public law appeals are in principle admissible against judgments of the Federal Administrative Court (Art. 82 lit. a and Art. 86 para. 1 lit. a FSCA). Art. 83 lit. w FSCA, however, excludes such appeals for decisions in electricity law concerning plan approval of high-current and low-current installations and the expropriation of the rights necessary for them, unless a legal question of fundamental importance arises. The provision entered into force on 1 January 2018; since the contested decision is dated 1 November 2019, it applies temporally (Art. 132 para. 1 FSCA).
The appellant argues that the exception is not materially applicable because it is intended to accelerate the realisation of electrical installations and here only an existing line is affected, without any delay consequence. The Federal Supreme Court counters that the clear wording also covers purely expropriation proceedings; the legislative materials confirm this. The renewal of a transitional right for an existing line therefore falls within the provision, even if it merely shortens the legal remedy route.
Even though only the amount of compensation is still disputed, the exception applies. The competences for objections to the expropriation (plan approval authority or department) and for compensation (valuation commissions) are indeed separate. However, these are materially and formally closely interlinked stages of the formal expropriation, since expropriation is only permissible against full compensation (Art. 26 para. 2 Cst.; Art. 16 ComPurA) and compensation claims must already be registered in the first stage (Art. 41 ComPurA). In purely expropriation proceedings, the question of compensation is central; if the exception did not cover it, the supplement enacted by parliament would be practically meaningless.
A legal question of fundamental importance exists where there is a general and urgent interest in a clarification by the highest court, in order to ensure uniform application of federal law and to remove considerable legal uncertainty;…