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On 29 June, the Commission adopted a proposal for a Directive on the planning safeguards law, which came into force in May 2020, introduced the tool of online consultation, initially limited to the duration of the restrictions imposed by the COVID-19 pandemic. In connection with the amendments to the WindSeeG adopted by the Federal Government today, the formal consultation of the authorities to be involved has been replaced by the publication of the relevant planning documents on the Internet (§ 6 para. 10, § 12 para. 2a, para. 4 sentences 2 and 3, § 47 para. 6 WindSeeG). A further step towards bringing administrative procedures into the digital age. And unlike the Planning Security Act, the tool of this online consultation is no longer tied to the effects of the COVID-19 pandemic.

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)

With its decision of 07. 04. 2020, the BGH has clarified the scope of the transfer entitlement of the new concessionaire vis-à-vis the previous operator of the general supply network pursuant to § 46 para. 2 sentence 2 of the EnWG. According to this, high-voltage and high-pressure pipelines in the municipal area are also part of the local distribution network if the system cannot be disregarded without the new concessionaire no longer being able to fulfill its supply tasks as the former system operator did, and the pipeline system has a more than insignificant role in local supply. The right of transfer is not limited to installations to which customers are directly connected. (BGH, UrtDec. of. 7. April 2020 - Case No.: EnZR 75/18)

By decision of 11. 02. 2020 the BGH specifies the requirements for a citizen energy company according to § 3 No. 15 EEG, which participates in an invitation to tender, in the sense that the majority of voting rights for district-based members must also be accompanied by a corresponding actual possibility of exerting influence on the company and participating in decisions of the general meeting. However, the requirements for a public energy company are not fulfilled if the social contract does not provide for majority decisions or if the social contract of a limited partnership withdraws fundamental transactions from the decision of the shareholders and assigns them exclusively to a company of the complementary company. ( BGH, Dec. from 11. 02. 2020 - Az. : EnVR 101/18)

In a decision of 11 March 2020, the Düsseldorf Higher Regional Court (OLG) commented on whether the Federal Network Agency (BNetzA) is obliged to examine the legality of the licensing authority's immission-related decision in the context of the tender to determine the financial support for onshore wind energy plants. The court came to the conclusion that in the case of § 36f para. 2 p. 1 EEG 2017, it depends solely on the actual approval situation, i. e. depends on whether the competent licensing authority has granted a modification permit under immission control law. This applies accordingly to the existence of an approval for modification. For this reason, in the specific case, the contract was to be rejected in the invitation to tender, as a modification permit already existed and it was irrelevant to the BNetzA whether a new BImSch permit should have been issued by the permitting authority ( OLG Düsseldorf, Declaration of 11. 03. 2020 - Ref: 3 Kart …

In its ruling of January 28, 2020, the Federal Court of Justice (BGH) specified the requirements for a complaint of nullity of a concession agreement in the context of the right of the supply network to transfer the rights to the new concessionaire. It must be shown that, given the overall circumstances of the case, it is at least possible that the award of the concession was based on the erroneous tender or the erroneous evaluation of the tenders. The concession contract shall not be considered null and void if the party whose rights have been infringed has had sufficient opportunity to defend its right to a selection decision before the conclusion of the concession contract but has not exercised that right. It must always be checked during the concession procedure whether there is discrimination and a direct complaint must be lodged against it ( BGH, Judgment. v. 28. 01. 2020 - Ref: EnZR 116/18)