1999/794/EC: Commission Decision of 8 July 1999 concerning the German application for a transitional regime under Article 24 of Directive 96/92/EC of the European Parliament and of the Council concerning common rules for the internal market in electricity (notified under document number C(1999) 1551/4) (Only the German text is authentic)

• CELEX: Directive 96/92/EC
• Articles: 4

Article 1

Article 4(3) (new Länder) of the German "Gesetz zur Neuregelung des Energiewirtschaftsrechts" (Energy Act), published in the Bundesgesetzblatt on 28 April 1998, p. 730, which is the single subject of the application for a transitional regime in accordance with Article 24 of Directive 96/92/EC, notified to the Commission on 12 February 1998, shall be considered to be based on a commitment or guarantee of operation within the meaning of Article 24(1) of the Directive.

In the abovementioned case, the commitment within the meaning of Article 24(1) of Directive 96/92/EC is the contract concluded on 22 August 1990 between the German Democratic Republic and the Treuhandanstalt on the one hand and Bayernwerk AG, PreussenElektra AG and RWE Energie AG on the other.

Article 2

In accordance with Article 24(2) of Directive 96/92/EC, Germany shall be entitled to derogate from Article 17 and thus from Chapter VII by applying Article 4(3) (new Länder) of the Energy Act as a transitional regime limited until 31 December 2003, under the following conditions.

(1) Germany shall ensure that the right to network access also remains the general norm in the new Länder, and that every refusal of network access is considered an exception which must be duly substantiated on a case-by-case basis.

(2) Requests for network access may only be refused where they involve the Vereinigte Energiewerke AG (VEAG) transmission network. Regional transmission and distribution system operators may not apply the provisions of the transitional regime. This condition shall be applied not later than two years following publication of this Decision.

(3) A minimum proportion of final electricity consumption must also remain open to competition in the new Länder. Therefore, at least those final consumers consuming more than 100 GWh per year (on a consumption site basis and including autoproduction) within the meaning of Article 19(3) of Directive 96/92/EC shall not be refused network access on the basis of Article 4(3) of the Energy Act. This condition shall be applied not later than two years following publication of this Decision.

Article 3

1. Germany shall submit to the Commission, within three years of the adoption of this Decision, a report on the actual use of network access by final customers in the new Länder. Should this report conclude that the proportion of final consumers who have actually changed to an electricity supplier not producing on the basis of lignite from the new Länder is substantial and endangers the viability of VEAG, the Commission shall review this Decision.

2. Germany shall notify to the Commission every refusal of network access in accordance with Article 4(3) of the Energy Act immediately following unconditional or conditional approval of such refusal at first instance (Landeskartellbehörde or Bundeskartellamt).

3. Germany shall notify to the Commission any change in relation to the Energy Act which may directly or indirectly affect the application of this transitional regime.

Article 4

This decision is addressed to the Federal Republic of Germany.

Done at Brussels, 8 July 1999.

For the Commission

Christos PAPOUTSIS

Member of the Commission

(1) OJ L 27, 30.1.1997, p. 20.

(2) BGBl. I, p. 730.

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(4) Although no official data have been presented, the Commission received oral information from VEAG as well as from electricity consumers (VIK) indicating that the category of final consumers consuming more than 100 GWh/year in the new Länder represents 15-20 companies with a consumption share of approximately 15-16 %. Inaccuracies stem in particular from the difficulties of assessing autoproduction and defining the consumption site.

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(24) According to the report (p. 17), until [...](25)(25) Business secret.

VEAG purchased lignite mainly from Laubag, a company which is related through common shareholders, at [...](26)(26) Business secret.,

and after [...](27)(27) Business secret.

according to a price-quantity schedule [...](28)(28) Business secret..

Neither Laubag's cost structure nor the current profit margin have been disclosed and analysed.

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