Federal Court of Justice (BGH) rejects appeal of the Federal Network Agency (BNetzA): Efficiency level to be adjusted upwards

Due to an incorrect calculation of the efficiency level, the BNetzA is to issue a new official notice setting the revenue cap for the municipal utility Stadtwerke Wedel GmbH. The Federal Court of Justice rejected the appeal of the BNetzA and thus confirmed the judgment of the Higher Regional Court (OLG) of Schleswig: If an error is detected when determining the efficiency level, and that error is to the disadvantage of the grid operator, it is to be corrected. Represented by BBH, Stadtwerke Wedel prevailed in this matter.

The complex regulation of the grid sector also means that the values determined by the BNetzA result from calculations which cannot be verified in detail by external parties. Thus, even though the BNetzA admitted to have made an incorrect calculation of the efficiency level in the gas area, it saw no reason to adjust the final official notices accordingly.

Stadtwerke Wedel then applied for a new official notice and prevailed before court with the assistance of BBH. The Higher Regional Court (OLG) of Schleswig had already confirmed their legal opinion: Due to the complex method of determining the efficiency level and the fact that this calculation cannot be verified by the court, the court found that the regulatory authority (BNetzA) cannot be given discretion as to whether to correct upwards an efficiency level that has been unlawfully determined to be too low. The Federal Court of Justice now rejected the appeal of the BNetzA ruling that the BNetzA is to correct the efficiency level upwards and issue a new official notice on the revenue cap.

Adam Krüppel, Managing Director of Stadtwerke Wedel, is very happy with the result: “The story of David and Goliath came true in our case.” “The judgment of the Federal Court of Justice is of fundamental importance for the energy industry as it confirms that errors to the disadvantage of the grid operators must be corrected, even if the notices issued by the BNetzA are already final”, adds lawyer and BBH partner Stefan Wollschläger.

Becker Büttner Held 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. BBH advises these and many other companies and organisations in all legal matters and also assists them with business and strategic advice.


Stefan Wollschläger
Lawyer, Partner
Tel +49 (0)40 34 10 69-300


Dr. Ines Zenke
Lawyer, Partner
Tel +49 (0)30 611 28 40-179

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