Aktuelles Neuigkeiten aus der Energiebranche

In a decision dated 9. 12. 2020, the BGH granted a tenant a temporary right of retention under Section 242 BGB for operating costs claimed by the landlord. Insofar and as long as the landlord does not allow the tenant to inspect the accounting documents contrary to § 259 para. 1 BGB, to which in addition to the invoices also the payment receipts are to be counted, the tenant can just not check the activity of the landlord. This also applies irrespective of whether the landlord accounts according to the outflow principle or according to the performance principle or whether he uses one or the other accounting method for the different types of operating costs, according to the Federal Court of Justice. An interest going beyond the general interest of the tenant in the review of the #Operating costs statement is not required here. (BGH, Dec. of 9.12.2020 - Az.: VIII ZR 118/19)

On 23rd of April, the BGH heard a review of the ruling of the OLG Frankfurt am Main of 21st March 2019. The main hearing will take place on 3rd March 2019. OLG Frankfurt had affirmed that district heating utilities had infringed the UWG because they had informed their customers in a customer’s letter of a change in the price adjustment clauses. In the opinion of OLG Frankfurt a. M. was not allowed to change unilaterally the price adjustment clauses on the basis of AVBFernwärmeV and the customer’s letter was therefore misleading. The BGH annulled this ruling of the OLG Frankfurt and ruled that there was no infringement of the UWG. The district heating provider did not mislead its customers by giving false facts, but merely expressed its legal view, which was admissible. However, the BGH did not clarify the actual question of whether district heating utilities are entitled to unilaterally change their price adjustment clauses by means of public announcement.

The Higher Regional Court of Rostock (OLG Rostock) ruled in a judgment of 5 July 1994. March 2019 on the nullity of a district heating supply contract on the basis of § 1 GWB i. V. m. § 134 BGB, which has been living between the heat supplier and the customer for several years. The Court of First Instance is of the opinion that, although supplying large customers with district heating or through heat contracting, it is a common product market. However, since in the specific case there was no impediment to the market, a nullity of the heat supply contract was not to be assumed. In addition, a ten-year contract term in view of the possible maturity agreement according to § 32 para. 1 AVBFernwärmeV does not contradict § 1 GWB, even in combination with a minimum purchase quantity. (OLG Rostock, Dec.. of. 5.3.2020 - Case No. : 16 U 1/18)

In the dispute about the district heating network in Stuttgart, the OLG Stuttgart ruled on 26. On 3 March 2020, the Federal State Capital, as the owner of the land, decided that the district heating network which had been laid on its land did not become the property of the City of Hamburg. Rather, the district heating transport system would remain the fictitious property of the operator EnBW. Nor, in the absence of a corresponding termination clause, does the contract of use concluded between the parties impose any obligation on EnBW to transfer ownership of the district heating network to the Land capital. The court only granted the Stuttgart company's auxiliary request that it, as the owner of the land, could demand the removal of the heat supply facilities after the concession contract had expired.

The #Clearingstelle #EEG #KWKG has already published on December 13, 2018, a notice on #self-sufficiency for so-called general electricity. Self-sufficiency within the meaning of § 61 EEG 2017 also applies in the case of personal identity between the plant operator and the operator of consumption facilities for cooling or heating parts of buildings, community lighting and lifts. In this respect, the Clearingstelle EEG KWKG creates legal clarity for the use of #solar plants and #BHWK in the real estate industry. At the same time, the necessary differentiation from other electrical quantities, e. g. #tenant electricity is pointed out. (Clearingstelle EEG KWKG, Note from 13. 12. 2018 - Ref. : 2018/10)

The Market Master Data Register (MaStR) is the register for the German electricity and gas market and is managed by the Federal Network Agency. In MaStR, the master data for electricity and gas generation plants must be registered. In addition, the master data of market players such as plant operators, grid operators, and energy suppliers must be registered. MaStR is available online not only to the authorities but also to market players and the public. At the same time, various existing registration obligations are to be bundled in the market master data register. Due to the repeated postponement of the opening of the web portal, however, the registration obligations could only be fulfilled insufficiently so far or had to be carried out for EEG plants in the plant register.