OLG Düsseldorf: DB Energie Must Provide Access to Site Networks

During an oral hearing on Wednesday, the Higher Regional Court of Düsseldorf (OLG Düsseldorf) indicated its willingness to essentially confirm a decision by the Federal Network Agency (BNetzA) ordering DB Energie GmbH to provide grid access for third parties supplying energy to end customers connected to its grid, BNetzA informed. As a result, DB Energie GmbH withdrew its appeal.

DB Energie GmbH, a subsidiary of Deutsche Bahn (German Railways), operates 50Hz grids at over 5,000 locations in Germany. They serve mainly to provide energy for facilities of the Deutsche Bahn Group located at railway stations and on railway property. In addition, third parties, mostly kiosks, restaurants and retail shops at train stations, are provided with energy. At large train stations the situation is similar to shopping malls.

DB Energie refused to grant third party access to its networks, claiming that its grids were so-called site networks (Objektnetze) in the sense of § 110 Energiewirtschaftsgesetz (German Energy Act – EnWG). Hence, DB Energie GmbH would not be obliged to grant third party access. § 110 EnWG exempts inter alia grids on company premises that mainly provide energy for company use from large parts of the German Energy Act. In May 2008 the European Court of Justice held that the denial of access for third party providers in site networks was not compatible with Directive 2003/54/EC (Case C-439/06).

During the oral hearing, OLG Düsseldorf argued that owners of site networks had to grant third party access as well. However, the court was of the opinion that the orginal deadline by BNetzA to implement its standard procedure for the change of suppliers (GPKE) by 1 February 2011 was too short. As a consequence, DB Energie withdrew its appeal, and BNetzA extended the deadline to 31 December 2011. Therefore, OLG Düsseldorf did not have to issue a formal decision.

Source: Federal Network Agency

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