Information on special anti-competitive proceedings
Preliminary remark
The Second Energy Statutes Reorganisation Act (Energy Act), which entered into force on 7 July 2005, marked Germany's transition from negotiated to regulated network access. The responsibility for regulating the energy market was given to the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (Federal Network Agency). One of the tasks performed by the Federal Network Agency and the federal state regulators is the control of competitive practices in each sector. This means policing energy supply networks that are generally viewed as natural monopolies. In order to meet the Energy Act's objective of encouraging competition in the energy market, section 31 of the Act includes provision for interested persons, or associations of persons, to ask that the regulatory authority review the conduct of a network operator.
Division of responsibilities between the Federal Network Agency and the regulatory authorities of federal states
The Federal Network Agency is responsible for energy companies supplying more than 100,000 connected customers and for any network operator whose network crosses federal state boundaries. If an energy company has fewer than 100,000 customers, and if its network is restricted to the territory of one federal state, then the regulatory authority of that state is responsible for policing that company's actions. However, federal states may also opt to officially delegate their regulatory powers to the Federal Network Agency.
The Federal Network Agency does not currently have any information as to which of Germany's federal states intend to set up their own regulatory apparatus, and we are therefore unable to tell consumers who is responsible for their energy supplier.
How to apply
Section 31 of the Energy Act states that persons, or associations of persons, whose interests have been substantially affected by the conduct of a network operator can apply to the regulatory authority for a review of the conduct in question. By submitting this application, they trigger special anti-competitive proceedings. The application must satisfy certain requirements as to form and content. You can find out more about these, as well as further detail on the actual proceedings, by clicking on the link to the corresponding footnote.
1) What requirements must the application meet?
The application must be in writing and must include the name and address of the applicant. It must also be signed by the applicant1.
In addition, the application must include the following information as a minimum:
Name and head office address of the network operator in question2
Conduct of the network operator that is to be reviewed3
Reasons why there is serious doubt as to the legality of the network operator's conduct4
Explanation of how the applicant is affected by the conduct of the network operator5
2) What happens then?
The relevant regulatory body will arrive at a decision within two months of receiving a complete application, although the regulator may extend this deadline by a further two months. Any additional extension requires the consent of the applicant. In the course of the proceedings, the regulatory body handling the application will give the network operator in question the opportunity to comment on the case (pursuant to section 67(1) of the Energy Act and section 28 of the Administrative Procedure Act).
Applications that do not meet the criteria set out in 1) will not be admitted. If the application is admitted, the regulator will then decide whether the conduct cited by the applicant is in fact illegal. Should the regulator determine that the network operator is indeed in breach of the law, the application is considered to be justified. The regulatory authority will then, by way of a decision, instruct the network operator to refrain from the illegal conduct. If need be, further measures can be taken (eg a fine or a skimming-off of profits).
If, however, the regulator does not consider the conduct in question to be illegal, the proceedings are closed and the application rejected. It may be the case, as outlined in section 73 of the Energy Act, that no decision is reached. In this instance, the parties involved are informed in writing or by electronic means that the proceedings have been closed.
3) What does it cost?
A charge is levied for the proceedings, as the Federal Network Agency (and the regulatory authorities of federal states) incur costs in investigating each case. The minimum fee for opening proceedings is 50 euros and collection is possible for up to four years after the proceedings have ended.
4) Legal rights
Applicants may appeal against the decision of the regulatory authority (see section 75 (1) of the Energy Act). Appeals can only be heard by the Intermediate Court of Appeals in Dusseldorf (section 75 (4) of the Energy Act).
5) How to contact the Federal Network Agency
Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen Headquarters in Bonn
Tulpenfeld 4
53113 Bonn GERMANY
or
Postfach 8001
53105 Bonn
GERMANY
Tel.: +49(0)228 14-0
Fax: +49 (0)228 14-8872
Information sheet on special anti-competitive proceedings (pdf/25 KB)
Footnotes
1 If the application is submitted as an electronic document, it must contain a qualified electronic signature (as per section 3a of the Administrative Procedure Act).
2 The full name of the company is required, including its legal structure (eg GmbH, AG).
3 The conduct should be described as concisely as possible without omitting any of the relevant details. Formulaic phrases and general, imprecise statements will not suffice.
4 It is crucial that the conduct of the network operator be illegal. This means that, in order for the application to be admitted, the conduct in question must violate the legal norms of the Energy Act or its associated ordinances.
5 It is important to demonstrate that the applicant is personally affected by the conduct of the network operator. Unless the applicant is directly affected, the application will not be admitted.