BBH successfully overturns the efficiency benchmarking for gas in the 3rd regulatory period in proceedings before the federal court of justice (BGH)

Today, the Federal Court of Justice handed down a landmark decision in the regulation of grid charges ruling that the Federal Network Agency’s (BNetzA) nationwide efficiency benchmarking of gas distribution system operators was unlawful.

Efficiency benchmarking is a key component of regulating grid charges. It is carried out by the Federal Network Agency in a comprehensive procedure, determining each grid operator’s individual efficiency score. Grid operators are hardly able to verify the specific score determined by the Federal Network Agency. Some grid operators – including Wesernetz Bremen GmbH, which is represented by BBH – took legal action against the calculation of the efficiency score.

The Federal Court of Justice ruled today that the efficiency benchmarking for gas grid operators in the 3rd regulatory period was unlawful and annulled the corresponding determination of revenue caps (court ref. EnVR 37/21). On behalf of Wesernetz Bremen GmbH, BBH had already successfully challenged the efficiency score calculation in the 2nd regulatory period.

The main issue with the efficiency benchmarking is the fact that grid operators with a different supply structure, i.e. the regional transmission system operators, should also be subject to the procedure. Today, the Federal Court of Justice took the same view. The Federal Network Agency will have to start all over again with efficiency benchmarking and determining the individual efficiency scores. The ruling of the Federal Court of Justice has an impact not only on the proceedings at hand but also on the currently ongoing determination of the efficiency scores for the 4th regulatory period which should generally be governed by the same rules. This will, however, no longer be possible.

“I am very pleased that we succeeded again in having the court confirm the inaccuracy of the efficiency benchmarking process,” says BBH partner, lawyer Stefan Wollschläger, who represented Wesernetz also in these court proceedings. “The decision is of great importance also for future regulatory periods as it clearly requires the Federal Network Agency to create the comparison groups more carefully so as to establish an achievable efficiency score.”

The BBH group is a leading provider of advisory services for energy and infrastructure companies and their customers. Energy and supply companies, particularly public utilities, municipalities and local authorities, industrial companies and international groups are among its core clients. The BBH group advises these and many other companies and organisations in all legal matters and also assists them with business and strategic advice.


Prof. Dr. Ines Zenke
Rechtsanwältin/Lawyer, Partner
Phone +49 (0)30 611 28 40-179

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