At last, a decision was reached in the long-lasting dispute between innogy Netze Deutschland GmbH and the municipality of Marienheide, which was advised by BBH: innogy will pay to the municipality of Marienheide post-contractual concession fees encompassing a period of more than two years.
The municipality of Marienheide had filed a lawsuit against innogy (formerly: RWE Deutschland AG) already in 2012, as innogy had charged concession fees to final consumers, among others, in the years 2012 and 2013, but had ceased to pay the concession fee to the municipality of Marienheide one year after losing the concession (expiry of the 1-year time limit stipulated in the previous version of sec. 48 German Energy Industry Act (EnWG)). This happened as innogy and the new concession holder were in lengthy negotiations on the grid takeover and the purchase price until 2014. The legal proceedings initiated by the municipality were ultimately brought before the court of third instance.
By ruling of 18 July 2017, the Federal Court of Justice (Bundesgerichtshof – BGH) had finally rejected innogy’s complaint against the denial of leave to appeal as provided for by judgment of the Higher Regional Court (Oberlandesgericht – OLG) of Düsseldorf dated 16 November 2016. This means that the judgment in the appeal proceedings before the OLG Düsseldorf has become final and binding. Innogy is obliged to continue paying the concession fee to the municipality of Marienheide also beyond the 1-year time limit set out in the previous version of sec. 48 subs. 4 EnWG.
The decision strengthens the rights of municipalities vis-à-vis former concession holders. Under the law of unjust enrichment, the municipality of Marienheide is entitled to compensation for innogy’s continued use of the easement. “This entitlement is not excluded by the provisions of the German Energy Industry Act,” says BBH lawyer Axel Kafka, who represented the municipality in the proceedings. “Thus, despite the fact that the proceedings referred to the previous legal situation, the case will also impact the revised provisions of sections 46 et seqq. EnWG that have been effective since February 2017.”
Pursuant to sec. 48 subs. 4 EnWG in its new version, the so-called post-contractual obligation to pay the concession fee now remains in place until the grid is actually taken over by the new concession holder. “To this extent, sec. 48 EnWG in its new version does not constitute a special provision taking precedence over the law of unjust enrichment; furthermore, the entitlement to the concession fee is likely to amount to 100% as well, in line with the court ruling in the case of the municipality of Marienheide,” says Axel Kafka.
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