The Cartel Senate of the Federal Court of Justice (BGH) has ruled that a local natural gas supplier holds a dominant market position within its established supply area and is therefore subject to the abuse control of the cartel authorities when determining its end-consumer prices.
Stadtwerke Uelzen GmbH, a gas supply company in Lower Saxony, supplies natural gas to end consumers within its service area. Like other Lower Saxon gas suppliers, it has repeatedly increased its prices for private end consumers since autumn 2005. Prompted by complaints from affected consumers, the Lower Saxon State Cartel Office reviewed the gas prices under antitrust law and concluded that Stadtwerke had abusively charged excessive annual total prices between november 1, 2005, and March 31, 2006. The State Cartel Office therefore obligated Stadtwerke to refund the overcharged gas prices to customers – amounts ranging between 0.3 and 0.5 cents/kWh, depending on the periods and consumption volumes – with the 2006 annual statement.
Following an appeal by Stadtwerke Uelzen, the Higher Regional Court of Celle overturned the State Cartel Office's order, reasoning that the gas supply company did not hold a dominant market position. The court argued that Stadtwerke operated in the general supply market for thermal energy, where it competed with providers of rival energy sources such as heating oil, electricity, and district heating.
The Cartel Senate of the Federal Court of Justice overturned the decision of the Higher Regional Court of Celle. In continuation of its established jurisprudence, it deemed the market for supplying natural gas to small customers as the relevant market. It stated that a uniform thermal energy market does not exist, as end consumers cannot easily switch their heating systems from gas to another heating energy source.
Since the Higher Regional Court had not addressed the question of whether Stadtwerke abused its dominant market position, the Federal Court of Justice remitted the case to the lower court for further examination.
Decision of the Federal Court of Justice dated December 10, 2008 – KVR 2/08
Lower Court: Higher Regional Court of Celle – Decision dated november 20, 2007 – 13 VA 1/07(Kart)
Source: Press release of the Federal Court of Justice No. 231/2008 of December 10, 2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
