Raue, together with BGH attorney Dr. Peter Rädler, secured a historic victory for GASAG/NBB. On 9 March 2021, the Cartel Panel of the Federal Court of Justice (BGH) handed down its decision that the State of Berlin is bound to award the tendered concession for the operation of the gas supply network in Berlin to NBB Netzgesellschaft Berlin-Brandenburg GmbH & Co. KG, the network subsidiary of GASAG, the Berlin-based utility.
In 2014, the State of Berlin decided to award the concession to its own state-owned company Berlin Energie. The regional court had prohibited this award in December 2014, following the request of GASAG and NBB, due to numerous procedural and evaluation errors, but rejected to directly award the gas concession to GASAG/NBB. The Court of Appeals confirmed this decision in April 2019, not granting a right of appeal. In August 2020, the Federal Court of Justice granted GASAG/NBB’s the right to appeal. Yesterday, the Federal Court of Justice amended the judgment of the Court of Appeals and the Regional Court and obliged Berlin to accept NBB’s concession offer. The reasoning of the ruling is not yet available.
This is the first time a court has ever ruled that applicants for electricity and gas concessions can not only prevent a competitor from being awarded a concession, but can also assert their own claim to the concession in court.
(10 March 2021)