Regulatory authorities have been successfully represented by Loschelder Rechtsanwälte in proceedings at the BGH (German Federal High Court of Justice).
BGH confirms reduction of tariffs for access to energy networks by regulatory authorities.
The Bundesnetzagentur (BNetzA, German federal regulatory authority) has approved the tariffs of the transmission system operator Vattenfall Europe Transmissions GmbH, reducing the calculated and applied costs by 18%. Furthermore, Vattenfall was ordered to repay to the system users the surplus having been generated by raising access tariffs exceeding the approved level before effectiveness of BNetzA’s decision (i.e. an amount of 50 million Euro). Against this decision, Vattenfall lodged an appeal with the OLG (Higher Regional Court) in Düsseldorf. The OLG Düsseldorf confirmed the substantive lawfulness of the reduction but repealed the surplus-related order.
On appeal of the BNetzA lodged by Loschelder Rechtsanwälte, the BGH now confirmed the so-called ‘surplus clause’ as lawful. The appeal of Vattenfall was nearly completely dismissed. The decision has considerable financial effects on the transmission system operators and in the end on the consumer, because the tariffs for electricity transmission by Vattenfall for the next tariff period are reduced by approx. 50 million EURO.
The BGH more or less also confirmed the position of the regulatory authorities in four other proceedings represented by Loschelder Rechtsanwälte for the regulatory authority of Rhineland-Palatinate. Among others, the cost item ‘depreciation’ was in dispute. The regulatory authority had considerably reduced the residual value for old facilities of the four appealing distribution system operators in their calculation. The OLG Koblenz considered these reductions as being unlawful. Here too and among others, the BGH confirmed the legal position of the regulatory authority in this matter. This is of high importance for the regulatory practice, because other eminent items such as ‘interest calculation of equity’ and ‘trade tax’ are founded on the ‘depreciation’.
Due to the final and absolute decisions of the BGH, the most important questions of the new regulated energy law are now settled. By confirming the lawfulness of the reductions made by the regulatory authorities in the most important and expensive items, the BGH has clearly strengthened the approach of the regulatory authorities to enable more competition on the market for electricity.