No dominant position – heat supplier convinces the Federal Court of Justice (BHG) with the help of BBH

The Federal Court of Justice dismissed the complaint against denial of leave to appeal of a large heat customer in its decision of 15/05/2023 (ref. KZR 28/20). The contested 10-year heat supply contract does not violate antitrust law.

For quite a while, the classification of district heating supply under antitrust law appeared to have been decided: heat suppliers were assigned a dominant position for existing customers. This is because customers do not have the possibility to change suppliers. However, at least for large customers, this is no longer generally the case:

In its judgement of 05/03/2020 (ref. 16 U 1/18), the Higher Regional Court of Rostock clearly objected to this general classification for large customers. For large customers, there are numerous contracting providers available as alternatives. The appeal of the judgement was not granted. As a result, the Federal Court of Justice has now dismissed the complaint against denial of leave to appeal.

“This decision will hopefully bring back attention to the market definition of district heating under antitrust law. After all, there is a genuine and legal need to look more closely at the interchangeability of heat sources and the very existence of a single heat market,” says BBH partner, lawyer Stefan Wollschläger, who conducted the proceedings on behalf of the heat supplier.

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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