Bonn, 18 December 2013: The Bundeskartellamt welcomes the landmark decisions issued yesterday by the Federal Court of Justice on the award of rights of way for electricity and gas networks. In the two cartel cases concerning civil antitrust litigation the highest German law court had previously rejected appeals against decisions by the Schleswig Higher Regional Court, which had held that the award procedure and the criteria according to which the concessions were awarded constituted a violation of competition law. The Federal Court of Justice followed this view.

Andreas Mundt, President of the Bundeskartellamt: "With its decision the Federal Court of Justice has also confirmed our decision practice in some crucial points. If a municipality awards a concession, this must be done in a non-discriminatory and transparent procedure and under competitive criteria. The municipality is prohibited from preferring its own municipal utility without objective justification. These standards must also be applied in the current award proceedings in Berlin, Hamburg, Stuttgart and Leipzig which the Bundeskartellamt is monitoring."

You will find the press release of the Federal Court of Justice on the two decisions here (German version).

Background information:
In a decision of principle, the Bundeskartellamt had prohibited the city of Mettmann in 2012 from assigning the rights of way for the operation of the city's electricity and gas network "in-house" to its subsidiary without a transparent and non-discriminatory procedure. In its decision, the Bundeskartellamt had clarified that for the sake of the consumers, the objectives of Section 1 of the Energy Industry Act (a secure, affordable, consumer-friendly, efficient and environmentally safe supply) must be observed when choosing a network operator (cf. press release of 6.12.2012). The city appealed the decision to the Düsseldorf Higher Regional Court but withdrew its appeal at a later stage.

You will find further decisions of the Bundeskartellamt on the competitive award of concessions for electricity and gas networks by municipalities on the Bundeskartellamt's website (German version).

In 2010, the Bundeskartellamt and the German Federal Network Agency (Bundesnetzagentur) published joint guidelines (German version) for the award of gas and electricity concessions and network leasing which contain specifications on how to award a concession in a competitive and non-discriminatory manner.

The principles laid down in these guidelines are in line with yesterday's decisions by the Federal Court of Justice.