The Energy Regulation and Markets Review - Stikeman Elliott

Germany
Since July 2005, the Federal Network Agency for Electricity, Gas,
Telecommunications, Post and Railway (‘the BNetzA’) has acted as the main regulator.
In addition, the regulatory authorities of the 16 German federal states are responsible
for the regulation of energy network operators with fewer than 100,000 customers
connected to their energy supply networks and whose networks do not extend beyond a
single federal state. The BNetzA has been entrusted with all tasks and powers that, under
the EnWG, have not been assigned to the state regulators.
The BNetzA’s regulatory tasks include, inter alia, ensuring non-discriminatory
network access, control of network access tariffs, monitoring potential anti-competitive
practices by network operators and the assessment of the network operators’ investment
activities. These regulatory powers have the primary objective to ensure safe and efficient
energy network operation and to provide necessary prerequisites for effective competition
on the upstream and downstream energy markets.
Another authority that acts as the regulator of the energy markets in a broader
sense is the Federal Cartel Office (‘the BKartA’). While the competition law regime
under the Act Against Restrictions of Competition (‘the GWB’) applies in principle to
all business sectors, it contains in Section 29 a special competence for the BKartA to
prohibit abusive pricing practices by dominant suppliers on the energy retail markets.
The BKartA has no jurisdiction over energy network-related activities that are solely
subject to measures imposed by the BNetzA or the responsible state authority. Both the
BNetzA and the BKartA are, however, under a duty of mutual cooperation in order to
seek a uniformity of measures with regard to the energy markets.
ii Regulated activities
In Germany, only the operation of energy transmission and distribution networks
is subject to a strict regulatory regime by the BNetzA and the competent regulatory
state authorities, respectively. This oversight extends to network access and network
connection obligations including network tariff regulation under the statutory regime
of incentive regulation. In addition, the operation of energy supply networks requires
certain licences and approvals:
The commencement of the operation of an energy supply network requires an
authorisation by the competent authority. The regulator must issue the approval within
six months after receipt of the complete application documents. Authorisation may only
be refused if the applicant lacks the necessary personal, technical and economic capability
and reliability in order to ensure the long-term operation of a network in accordance
with the provisions of the EnWG. Network operators that were already active when the
revised EnWG entered into force on 13 July 2005 do not require such authorisation
(grandfathering).
In accordance with Directives 2009/72/EC and 2009/73/EC, the operation
of a transmission network is now subject to certification by the BNetzA. To this end,
the BNetzA has published guidelines that substantiate the procedural and material
requirements. Accordingly, the certification process had to be initiated by the operator
or the owner of the transmission network by 3 March 2012 or can be initiated ex officio.
The BNetzA is currently in the process of preparing draft decisions (it has four months
to do so) and will forward these to the European Commission (‘the Commission’). The
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