The Bundesnetzagentur (Federal Network Agency) and Bundeskartellamt have published a second revised edition of their joint guidelines on the award of electricity and gas concessions and change of concession holder. The new edition takes into account amendments to the law and developments in case-law since the first edition of the guidelines five years ago.

Andreas Mundt, President of the Bundeskartellamt: "The guidelines serve as a guide to municipalities on the legally compliant implementation of competition for networks. They take adequate account of the interests of both the municipalities issuing the tenders as well as those of the bidders.

With the guidelines we are helping market participants to implement current energy law provisions. The main aim is to ensure that in the event of a change of concession holder the transfer of network is not delayed or prevented by legal disputes", Jochen Homann, President of the Bundesnetzagentur, stated.

Since the first publication of the guidelines important issues and problems which arose in practice were dealt with and clarified by the amendment of the Energy Industry Act in 2011 and the case-law of the Federal Court of Justice, higher regional courts and higher administrative courts. In particular, the two decisions of principle of the Federal Court of Justice of December 2013 (see Bundeskartellamt press release of 18 December 2013) and June 2014 on the requirement that the award of concessions must be carried out in a non-discriminatory and transparent procedure and under competitive criteria, provided legal clarity in key areas. The positions adopted by the Bundeskartellamt and Bundesnetzagentur in the first edition of the guidelines and in their administrative practice have been confirmed to a large extent by the Federal Court of Justice. So far the courts have been unanimous in their opinion that the guarantee of municipal self-government does not stand in the way of competition for networks.

The second edition of the guidelines incorporates new developments in case-law and amendments to the law, bringing the guidelines up to date. The guidelines also address topical issues on the weighting of selection criteria, establishment of sub-criteria, the award procedure and selection decision as well as the extent of information to be submitted to the municipality. Both authorities have already taken the decision of principle of the Federal Court of Justice of 14 April 2015 in the Springe case into account in the revised edition.
The guidelines were revised with the cooperation of the competition and regulatory authorities of the German federal states.