Aktuelles Neuigkeiten aus der Energiebranche

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 772/19)

The Federal Network Agency (BNetzA) is reacting to the effects of the corona virus and is adapting the mechanism for the tendering of renewable energies and CHP plants. The dates of the call for tenders and the implementation of the call for tenders will not be adjusted in the process. However, the successful bidders will not already be awarded the contract, but will first receive an assurance, so that the deadlines associated with the award will not yet begin to run. In addition, the BNetzA announces that for bids for #Wind energy on land and biomass that have already been awarded the implementation deadlines would be granted unbureaucratically by informal application.

The OLG Düsseldorf has decided that the BNetzA is obliged to anonymously disclose bid values from the tender for wind energy. One unsuccessful bidder argued that it could not be ruled out that knowledge of the bid amount might provide the complainant with further indications of an inadmissible price agreement pursuant to Section 34 (1) b) EEG 2017. The Düsseldorf Higher Regional Court granted this to the extent that, in connection with the location and type of plant, which can also be seen from the bid, conclusions can regularly be drawn about the profits with which the respective bidder has calculated, which is why the bids would only have to be disclosed anonymously. (OLG Düsseldorf, Resolution of 14. 11. 2018 - Ref. : 3 Kart 6/18)

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.

A judgment on a land register correction claim does not at the same time also determine the legal situation in rem. This was decided by the BGH in a ruling of February 2018, thus positioning itself on a question that has long been controversial in jurisprudence and literature. In the specific case, legal advisers had sued on behalf of their clients for rectification of the land register, rather than for restitution of property with obtaining a corresponding priority notice. In the opinion of the BGH, this application was not far-reaching enough. Rather, a decision on the ownership situation of the property should have been requested in order to meet the interests of the clients. (BGH, judgment of 09. 02. 2018 - Az. : V ZR 299/14)