Art. 91 Federal Constitution gives the Confederation exclusive jurisdiction over two important areas: the transport and delivery of electrical energy (para. 1) and pipelines for fuels and combustible materials (para. 2).
What does the provision regulate?
Paragraph 1 empowers the Confederation to enact legislation on electricity grids and electricity supply. This encompasses both the technical infrastructure (high-voltage lines, distribution networks) and the legal relationships between electricity providers and customers. The Confederation has implemented this competence in the Electricity Supply Act (StromVG; SR 734.7).
Paragraph 2 concerns pipelines for petroleum, natural gas and other liquid or gaseous fuels. This jurisdiction is regulated in the Pipeline Act (RLG; SR 746.1).
Who is affected?
All electricity suppliers, grid operators and electricity customers in Switzerland are subject to federal law. Cantons and municipalities can no longer set their own electricity tariffs (BGE 138 I 468). The same applies to operators of gas and oil pipelines and their customers.
What are the legal consequences?
Federal law completely displaces cantonal and municipal regulations. The Federal Electricity Commission (ElCom) supervises the electricity supply (Art. 21 StromVG), while the Federal Office of Energy (BFE) is responsible for pipelines (Art. 13 RLG).
Example: Since the StromVG came into force in 2008, a municipality may no longer approve the electricity prices of its local electricity utility. This competence lies exclusively with the ElCom or is regulated by law. The Federal Supreme Court confirmed this for the municipality of Wangen (BGE 138 I 468).
N. 1Legislative history
The current version of Art. 91 FC corresponds materially to the former Art. 24octies old FC, which was incorporated into the Constitution in 1961. Originally, the provision aimed to create a constitutional basis for the construction and operation of high-voltage lines across cantonal boundaries. The pipeline competence (para. 2) was added in 1982 to regulate the increasingly important gas supply under federal law (Kern, BSK BV, Art. 91 N. 1-3). The Federal Council's message of 20 November 1996 on a new Federal Constitution (BBl 1997 I 333 f.) adopted the provision without material changes into the totally revised Constitution.
N. 2Systematic classification
Art. 91 FC is part of the federal competences catalogue (Chapter 3) and belongs to the section «Energy and Communication». The provision is closely related to → Art. 89 FC (Energy policy), which regulates general energy policy objectives, as well as → Art. 90 FC (Nuclear energy). While Art. 89 FC grants the Confederation only a framework legislative competence, Art. 91 FC confers comprehensive federal competence for the transport and supply of electrical energy (para. 1) as well as for pipeline installations (para. 2). The systematic position clarifies that energy transport infrastructures fall entirely under federal jurisdiction due to their intercantonal significance (BGE 138 I 468 E. 3.2).
N. 3.1Para. 1: Electrical energy
The term «electrical energy» encompasses any form of electricity regardless of its generation method (Kern, BSK BV, Art. 91 N. 4-6). «Transport» refers to physical transmission via power grids, while «supply» concerns the legal relationship between supplier and end consumer. The Confederation's competence is comprehensive and extends to all regulatory aspects:
Police regulations concerning the construction and operation of installations (Kern, BSK BV, Art. 91 N. 7-10)
Market regime including grid access and price regulation (N. 11-15)
Supply requirements and universal service obligations (N. 16-19)
N. 3.2Para. 2: Pipeline installations
The federal competence for «pipeline installations» covers exclusively pipelines for liquid or gaseous fuels (petrol, petroleum, natural gas). This does not include water pipes, district heating networks or pipelines for other substances (Kern, BSK BV, Art. 91 N. 20-22). The competence is likewise comprehensive and includes construction, operation, safety and liability issues.
N. 4Legal consequences
Art. 91 FC grants the Confederation exclusive legislative competence (concurrent competence with subsequent derogation). Until federal law is enacted, cantonal regulations remain applicable, but are displaced by federal law (BGE 138 I 468 E. 3). The most important federal acts are:
Electricity Supply Act (StromVG; SR 734.7) for para. 1
Electricity Act (EleG; SR 734.0) for technical aspects
Pipelines Act (RLG; SR 746.1) for para. 2
Federal legislation is exhaustive in both areas; cantonal or communal regulations are only permissible insofar as federal law expressly leaves room for them (Jagmetti, Energierecht, S. 245 ff.).
N. 5.1Monopoly question for power grids
A central point of controversy concerns the permissibility of electricity monopolies. The majority opinion in legal doctrine maintains that Art. 91 para. 1 FC also permits the establishment of a monopoly for the transmission of electrical energy (Kern, BSK BV, Art. 91 N. 15; Weber/Kratz, Elektrizitätswirtschaftsrecht, S. 67). In contrast, part of the doctrine argues that the establishment of an electricity monopoly is incompatible with constitutional requirements, particularly → Art. 94 FC (Economic freedom) (Kern, BSK BV, Art. 91 N. 17; Reich, Grundsatz der Wirtschaftsfreiheit, S. 342 ff.).
N. 5.2Scope of federal competence
The question of whether Art. 91 para. 1 FC allows the Confederation to regulate production and consumption beyond mere transport and supply issues is also controversially discussed. The prevailing doctrine affirms an extended competence insofar as a close factual connection exists (Hänni/Stöckli, Wirtschaftsverwaltungsrecht, § 23 N. 15; contra Cavaleri Rudaz, L'accès aux réseaux, S. 89, who advocates for a restrictive interpretation).
N. 6Practice notes
For practice, it is decisive that since the entry into force of the StromVG, electricity supply has been comprehensively regulated under federal law. Cantons and municipalities can no longer set their own tariffs or provide for licensing reservations (BGE 138 I 468). For pipelines, a distinction must be made between transmission and distribution networks: while high-pressure lines are entirely subject to federal law, cantonal building regulations may apply to local distribution networks insofar as the RLG does not displace them. ElCom is the supervisory authority responsible for electricity supply, the SFOE for pipelines.
The case law on Art. 91 FC deals primarily with the delimitation of federal competences in the energy sector and the derogatory effect of federal law vis-à-vis cantonal and municipal provisions. While para. 1 on electricity supply has produced extensive case law, decisions on pipelines under para. 2 are rarer.
BGE 138 I 468 (23 November 2012) — Derogatory force of the Electricity Supply Act
The Federal Court held that with the electricity supply legislation, the setting of electricity tariffs is conclusively regulated by federal law. Cantonal or municipal price determinations have since become inadmissible.
«With the new electricity supply legislation, the competence of the municipal council of Wangen, laid down in a concession contract, to approve the tariffs for energy supply by a private-law network operator has become contrary to federal law; the setting of electricity tariffs is conclusively regulated by federal law, with the exception of charges and payments to public authorities.»
The decision clarifies the constitutional basis of Art. 91 para. 1 FC for comprehensive federal regulation of electricity supply.
BGE 138 I 454 (27 October 2012) — Remuneration of decentrally generated energy
The Federal Court recognised that electricity supply legislation conclusively regulates both network usage charges and energy prices. Cantonal remuneration obligations for decentrally generated energy are inadmissible.
«Additional remuneration components that would be ordered by cantonal authorities and would affect electricity tariffs thus no longer have any scope.»
The judgment confirms the exclusive federal competence for energy prices based on Art. 91 para. 1 FC.
#Economic freedom in the liberalised electricity market
BGE 143 I 395 (14 July 2017) — Metering and economic freedom
The Federal Court held that there is no monopoly for metering in the electricity sector and that the choice of metering service provider is subject to economic freedom.
«There is no monopoly for metering; the choice of metering service provider is subject to the producer's economic freedom.»
The decision shows the delimitation between regulated network operation (Art. 91 para. 1 FC) and liberalised areas of electricity supply.
BGE 144 III 319 (12 July 2018) — Liability under the Pipeline Act
Although primarily concerning liability law, this decision confirms federal competence for pipelines under Art. 91 para. 2 FC through application of the Pipeline Act.
«The sequence provided for in Art. 51 para. 2 CO for the standard case leaves room for deviations with regard to the specific case. Prerequisites under which a deviation from the sequence appears justified in the case of liability under the Pipeline Act.»
The case illustrates the practical application of pipeline legislation based on Art. 91 para. 2 FC.
Judgment 1C_36/2011 (8 February 2012) — Planning approval for energy lines
The Federal Administrative Court dealt with the planning law aspects of energy transport under federal legislation.
The decision shows the connection between federal competence for energy transport and spatial planning competences.
A-6650/2009 (21 May 2010) — Network access for pipelines
The Federal Administrative Court examined network access issues in the pipeline sector and confirmed federal jurisdiction for high-pressure and low-pressure lines.
The decision illustrates the practical implementation of pipeline competence under Art. 91 para. 2 FC.
Current decisions of the ElCom show the continuous application of energy legislation based on Art. 91 FC, particularly in the context of security of supply and electricity market liberalisation. The case law consistently confirms the conclusive federal competence for both electrical energy and pipeline installations.