Today, the Higher Regional Court (Oberlandesgericht) of Düsseldorf annulled the determination of the Federal Network Agency (Bundesnetzagentur) on the general sectoral productivity factor (Xgen) for the third regulatory period. The factor had been challenged in three model case proceedings brought by a group of complainants represented by BBH as well as in four additional complaint proceedings.
The general sectoral productivity factor is a core element of the formula for calculating the revenue caps for the energy industry and is determined by the Federal Network Agency. Its level has a significant impact on the revenue caps for the electricity and gas grids. The question of how to adequately determine the factor was examined by the Higher Regional Court of Düsseldorf, which decided today that the Agency must recalculate the general sectoral productivity factor for electricity in accordance with the legal stance of the court.
“This is an important win for the sector; especially because the decision clearly shows that the Higher Regional Court of Düsseldorf continues to critically examine the discretionary decisions taken by the Federal Network Agency,” says BBH partner Stefan Missling, who is acting as lead counsel in the almost 350 proceedings on behalf of a group of complainants represented by BBH. “It is very likely that the matter will end up before the Federal Court of Justice. If this is the case, a final decision will only be made next year.”
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.
Prof. Dr. Ines Zenke
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