After already Section 13 of the German Energy Act from 1998 included a legal basis for the conclusion of concession contracts and the right to take-over, this is being continued in Section 46 of the new German Energy Act from 2005 (EnWG).

However, Section 46, EnWG 2005 has been changed essentially by providing that concession contracts include only the grid access and not the general supply. The latter is being done by the basic supplier which has to be determined empirically. Ever since, many communes have started to to gas and electricity supply themselves. In spite of the unclear wording, from our point of view the right to take-over is a right of property transfer. This was backed-up by court decisions - even though not on the final level of jurisdiction. Additionally, in November 1999 the Federal Court of Justice decided that the so-called "Sachzeitwert" as basis for the purchase price does not violate cartel law from the outset; however, it is against cartel law if it is clearly higher than the profitability. This view has been re-confirmed by a decision of the Federal Court of Justice dated February 2006. This becomes relevant also with regard to Section 23a, EnWG, which deals with grid fees to be licensed and which have to be able to re-finance a purchase price to be paid. Therefore grid take-overs can still present an attractive possibility to take the grid operation into own hands. Here, many possibilites exist with regard to co-operations.

Relevant questions (and consultancy services) are

• designing and assay of new/prior concession contracts
• accompanying of announcement and selection procedures according to Section 46 para. 2, 3 Energy Act
• accompanying and coordination of grid take-overs (power, gas, water, district heating)
• accompanying of grid value evaluation (calculation of "Sachzeitwert", profitability)
• questions of basic supplier position, property transfer etc. 
• reclaims due to excessive purchase prices