The Energy Regulation and Markets Review - Stikeman Elliott

Germany
Moreover, the Foreign Trade and Payments Act, as well as the relevant ordinance
(the Foreign Trade and Payment Ordinance), authorise the BMWi to review and block
acquisitions of domestic target companies in key industries by non-EU investors if the
non-EU investor intends to acquire at least 25 per cent of the target company. If this
threshold is met, the BMWi will assess whether the acquisition endangers public order
or national security. For a potential intervention, the BMWi will assess whether the
acquisition would lead to a real and serious threat to public order or safety, and would
have an effect on the basic interests of German society. However, the German courts
would interpret these requirements in a fairly restrictive way. The review may occur
either upon application of the non-EU investor or be initiated by the BMWi ex officio.
While either the investor or the seller may voluntarily announce the acquisition plans and
thereby apply for a certificate of non-objection, the BMWi may only initiate an ex officio
review within three months of (1) the signing of the transaction, (2) the publication of
the decision to submit a public takeover offer, or (3) the publication of the acquisition
of control.
IV
ENERGY MARKETS
i Development of energy markets
In recent years, international trade has become an integral part of the energy markets
affecting German generation and wholesale supply market as well as retail markets. It
should be noted that the Nordic market – consisting of Denmark, Finland, Norway
and Sweden – has been connected to the electricity spot markets of Belgium, France,
Luxembourg, the Netherlands and Germany. Cross-border trade has become particularly
important recently since seven German nuclear power plants were shut down in March
2011. During this ‘nuclear moratorium’, Germany imported an average of 2,500MW
per day. However, due to high wind power input Germany’s export of electricity rose
again so that by the end of 2011 a slight export surplus was achieved.
The level of gas imports amounted to approximately 1,400TWh in 2010.
Approximately 40 per cent of the imported gas came from Russia; 26 per cent was
imported from each of Norway and the Netherlands. However, in view of certain
pipeline projects, it is likely that these values will increase significantly in the future.
For example, by the end of 2011 the Nord Stream pipeline and the Baltic Sea pipeline
(OPAL) were commissioned. Furthermore, the Northern German gas pipeline (NEL) is
soon expected to be completed.
A further notable development is the increasing volume and dynamics of the
national energy wholesale and energy trading market. The European Energy Exchange
(‘the EEX’) in Leipzig has become a major exchange for energy. The EEX operates market
platforms for trading in electric energy, natural gas, CO 2
emission allowances and coal.
The EEX also provides an intraday market to satisfy short-term demand or market shortterm
overcapacities. The exchange operates 24/7 without exceptions.
The increase of gas trading activities can partly be attributed to the merger of the
market areas. Since 1 October 2011 (the beginning of the new gas business year) the
German gas markets have been reduced to only two market areas: Netconnect Germany
and Gaspool. By way of contrast, in 2006 there were still 19 different market areas.
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