N. 1 Legislative 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. 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. 2 Systematic 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 Factual elements / Normative content

N. 3.1 Para. 1: Electrical energy The term «electrical energy» encompasses any form of electricity regardless of its generation method. «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
• Market regime including grid access and price regulation (N. 11-15)
• Supply requirements and universal service obligations (N. 16-19)

N. 3.2 Para. 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. The competence is likewise comprehensive and includes construction, operation, safety and liability issues.

N. 4 Legal 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 Controversies

N. 5.1 Monopoly 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 (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) (Reich, Grundsatz der Wirtschaftsfreiheit, S. 342 ff.).

N. 5.2 Scope 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. 6 Practice 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.