No protection of legitimate expectations from automated feedback from the ElCom; tariff review proceedings for tariff years 2013-2015 are not to be discontinued

Facts

[A. AG] , [B. AG] and [C. SA] (appellants) are operators of a distribution network within the meaning of the ESA and belong to the [D.A.] Group. The Federal Electricity Commission (ElCom) had reviewed the tariff years 2009 and 2010 of [A. AG] in a formal procedure and, by decision of 14 June 2012, expressly approved the energy costs.

Subsequently, the distribution network operators each declared by 31 August their anticipated costs and tariffs, the actual costs of the previous year and the coverage differences. The ElCom then carried out automated tests and issued feedback (letters of 7 December 2012 and 9 January 2013 on tariff year 2013, of 18 December 2013 on tariff year 2014 and of 16 December 2014 on tariff year 2015). In them it stated that it had examined whether the information and calculations were consistent with the electricity supply legislation and the directives.

By letter of 27 February 2017, the ElCom informed that tariffs or costs in the basic supply might not conform to the average price method; it provisionally refrained from an investigation but reserved the right to conduct one. On 26 April 2018 it demanded a retroactive recalculation from tariff year 2013, and on 30 August 2018 it opened a formal tariff review procedure for the years 2013-2018.

The appellants requested that the procedure for 2013-2015 be discontinued. The ElCom rejected this by interim decision of 7 February 2019. The Federal Administrative Court (judgment of 9 December 2019, A-1360/2019) partially upheld the appeal: for 2013 and 2014 there was protection of legitimate expectations, so the procedure was to be discontinued; for 2015 it was not.

The DETEC (2C_109/2020) and the appellants (2C_115/2020) filed appeals under public law against this judgment with the Federal Supreme Court. The DETEC requested annulment with respect to 2013 and 2014; the appellants requested unconditional discontinuation also for 2015. The proceedings were joined.

Considerations

The Federal Supreme Court affirms its jurisdiction and the admissibility requirements. The judgment of the lower court is a final decision with respect to 2013 and 2014 (Art. 90 FSCA), and an interim decision with respect to 2015, which is nevertheless appealable under Art. 93 para. 1 lit. b FSCA, as its upholding would immediately lead to a final decision and save considerable effort. The DETEC is entitled to appeal under Art. 89 para. 2 lit. a FSCA, as it is to enforce and supervise federal legislation in electricity supply law. The appellants are entitled to appeal under Art. 89 para. 1 FSCA, as they lost in the proceedings before the lower court and remain affected by the 2015 tariff review procedure.

The principle of good faith (Art. 9 Cst.) protects legitimate reliance on official assurances or other conduct that gives rise to certain expectations, provided the person was entitled to rely on it, made detrimental dispositions based on it that cannot be reversed, and no overriding public interests oppose it. The ESA does not provide for a preventive tariff approval; the ElCom supervises tariffs subsequently and intervenes only in cases of violations of the law (Art. 22 ESA; BGE 142 II 451 E. 4.5.2). The distribution network operators must submit the cost calculation by 31 August (Art. 11 ESA in conjunction with Art. 7 para. 7 ESO).

The ElCom's feedback neither expressly contains an approval nor a waiver of a future tariff review procedure, and it also does not express any reserved restrictions. Unlike the formal approval in the 2009/2010 procedure (letter of 14 June 2012), there is no wording stating that no further investigation would take place. The wording therefore does not reveal any approval of tariff years 2013-2015. The appellants, who had already gone through a formal procedure and whose proceedings were joined, knew or should have known that the automated tests represented only a plausibility check and did not have the examination depth of a formal tariff review procedure. The ElCom's guidance on the survey form confirms this. The misleading formulation that the ElCom had examined compliance with the law and directives therefore cannot establish legitimate expectations.

The timing of the opening of the procedure on 30 August 2018 does not change this. The ESA does not regulate a time limit for opening a tariff review procedure; the revision of Art. 6 para. 5 ESA (in force on 1 January 2019) concerns only…