The Cartel Senate of the Federal Court of Justice (BGH) has ruled that a local natural gas supplier holds a dominant position in its traditional supply area and is therefore subject to abuse control by the cartel authorities when setting its end consumer prices.
Stadtwerke Uelzen GmbH, a gas supply company in Lower Saxony, supplies end consumers with natural gas in its supply area. Like other gas supply companies in Lower Saxony, it has increased its prices for supplying private end consumers several times since autumn 2005. In response to complaints from affected consumers, the Lower Saxony cartel authority examined the gas prices under cartel law and came to the conclusion that the municipal utilities had abusively charged excessive total annual prices in the period from 1 November 2005 to 31 March 2006. The state cartel authority therefore obliged the municipal utilities to refund the excess gas prices charged to the customers - depending on the periods and quantities purchased, the amounts involved were between 0.3 and 0.5 cents/kWh ct/kWh - with the 2006 annual statement.
On appeal by Stadtwerke Uelzen, the Higher Regional Court of Celle annulled the order of the Land cartel authority on the grounds that the gas supply company did not have a dominant position. The municipal utility was active on the general market for the supply of heating energy, on which it competed with suppliers of competing energy sources such as heating oil, electricity and district heating.
The Cartel Senate of the Federal Court of Justice overturned the decision of the Celle Higher Regional Court. Continuing its previous case law, it considered the market for the supply of natural gas to small customers to be decisive. There was no single market for heating energy because the end customer could not easily switch his heating system from gas to another heating energy.
Since the Higher Regional Court did not address the question of whether the municipal utilities had abused their dominant position, the Federal Supreme Court referred the case back to the lower court for further consideration.
Order of the Federal Supreme Court of 10 December 2008 - KVR 2/08
Previous instance: Celle Higher Regional Court - Order of 20 November 2007 - 13 VA 1/07(Kart)
Source: Press release of the BGH No. 231/2008 of 10.12.2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)