The Energy Regulation and Markets Review - Stikeman Elliott

Germany
Commission may subsequently comment on the draft decision. Within two months
of receipt of the Commission’s opinion, the BNetzA must issue a final decision. The
BNetzA may grant the certification if the transmission system operator (‘TSO’) fulfils
the respective unbundling requirements of the EnWG (see Section III.i, infra). The
BNetzA may also issue the certification subject to certain terms and conditions.
If a TSO is (jointly) controlled by one or more persons from a country that is
not a member of the European Union or the European Economic Area, the TSO has
to undergo a special certification procedure. First, the application must be filed no
earlier than by 3 March 2013. Further, the German Federal Ministry of Economics
and Technology (‘the BMWi’) will have to issue an assessment of whether or not the
certification will endanger the security of energy supply in Germany and the EU.
Apart from licences and approvals, the regulatory authorities constantly monitor,
coordinate and partly approve investment decisions with a particular view to TSOs. In
this respect, TSOs are required to annually produce a ‘scenario framework’ as a basis
for an annual national network development plan. After public consultation with all
stakeholders involved, the BNetzA will approve the scenario framework in light of the
results of the public consultation. In addition, the TSOs have to apply for ‘investment
measures’ (previously called ‘investment budgets’) in the case of large restructuring or
expansion investments. The BNetzA grants respective approvals if the applicable statutory
requirements are fulfilled.
By way of contrast, similar regulatory restrictions do not apply to activities on
the generation and wholesale supply or energy retail markets. There are, however, certain
activities that do require special licences or other kinds of approvals. For example, the
construction of new power generation facilities requires a permit according to the Federal
Emission Control Act. More specifically, the construction and operation of a nuclear
power plant requires a special permit according to the Nuclear Energy Act.
iii Ownership and market access restrictions
In terms of unbundling options, the German legislator has completely transposed the
EU requirements in the EnWG. Thus, vertically integrated energy suppliers may opt
either for full ownership unbundling (‘OU’), an independent system operator (‘ISO’)
model or an independent transmission operator (‘ITO’) model. In practice, only the OU
and ITO models are relevant in Germany (see Section III.i, infra).
iv Transfers of control and assignments
When it comes to the transfer of control, the German legal framework does not provide
for special rules for the energy markets. However, depending on the market situation,
such change of control may be subject to the general merger control regime under the
GWB. The transfer of control will be approved by the BKartA as long as it does not create
or strengthen a dominant position in the relevant (energy) market. A recent example is
the approval of Gazprom’s increase of its minority shareholding in eastern Germany’s
largest gas supplier Verbundnetz Gas AG (VNG).
Furthermore, changes of control over a TSO trigger certain reporting duties. In
such a case, the TSO must notify the BNetzA of any proposed transactions, activities or
other circumstances that may require a reassessment of the aforementioned certification
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