// Énergie éolienne

BGH specifies requirements for civic energy companies in the EEG

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)
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// Droit des marchés

Testing competence of the BNetzA in the tendering process for onshore wind energy

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 …
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// Droit commercial

Modernisation of German partnership law

The expert commission set up by the Federal Ministry of Justice and Consumer Protection issued a statement on 20. 04. 2020 a draft law for the modernisation of the law on partnerships was presented. The draft provides for comprehensive reforms of German company law, some of which dates back to the 19th century. It is to be adapted to the practice of corporate law and to the needs of modern business life. In particular, the reforms affect the legal form of GbRs, for which a register similar to the commercial register is to be introduced in which they can - voluntarily - register themselves. Furthermore, the draft MOPEG is intended to explicitly enshrine the freedom to structure articles of association in the law. Commercial partnerships should also be available for freelancers (i. e. for example B. architects, dentists or lawyers), as far as the respective #professional law allows it. The expert commission has not yet proposed a specific date for the entry …
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// Droit commercial

Necessary business assets in the case of a leased agricultural and forestry holding

In its ruling of 19 December 2019, the Federal Court of Finance (BFH) decided that a leased agricultural property acquired by the lessor of a dormant agricultural and forestry lease is only to be allocated to the necessary business assets of the leasing company if it is incorporated into the existing lease of the agricultural holding or in the case of parcel-wise leasing, is included in one of the existing leases. If the lessee does not intend to use the purchased land, nor is it possible for him to use it within a foreseeable period of time, he can assign the purchased land to the business assets of the company if he clearly and unambiguously states his intention. The profit from the sale of the properties was not included in the income from agriculture and forestry (§ 4a par. 2 No. 1 sentence 1 EStG) must still be recorded for income from private sales transactions within the meaning of § 23 EStG.
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// Approvisionnement énergétique

BGH specifies requirements for complaints in the award of concessions

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)
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// Approvisionnement énergétique

District heating network as a sham component in the sense of the BGB

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.
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