Abuse control relating to energy price relief measures: First examination proceedings initiated – further proceedings will follow

The Bundeskartellamt has initiated its first examination proceedings based on the laws on energy price relief. The proceedings focus on companies that have filed applications for reimbursement with regard to the supply of gas under the German laws on energy price relief.

The laws’ prohibitions of abusive practices aim to prevent companies from charging end consumers prices which result in the companies obtaining unjustified relief payments from the state. Early this year a new division at the Bundeskartellamt took over the control of abusive practices relating to the price relief measures.

Andreas Mundt, President of the Bundeskartellamt: “With its energy price relief measures the government is providing considerable funds to ease the financial burden felt by consumers and the industry. Our task is to protect the state from exploitation. Our first examination proceedings affect a double-digit number of gas suppliers that have filed applications under the price relief laws for what could be excessive reimbursement payments. We have reason to believe that the prices charged to end consumers could be objectively unjustified and we are now in the process of shedding some light on this issue. Further proceedings will be initiated to examine cases relating to the district heating and electricity sectors. Although there is no general suspicion, we will from now on conduct regular and systematic screenings of all data provided by companies in their applications for reimbursement.”

Before initiating the proceedings the authority analysed all application and registration data provided in several thousands of applications, from which in particular information on pricing, supply volumes, reimbursement amounts and the number of customers could be gathered. In the course of its proceedings the Bundeskartellamt will first conduct a systematic and data-based survey of those companies that have been identified as raising questions. The authority is currently focusing on a double-digit number of conspicuous companies in the gas sector. Further proceedings will be initiated with regard to the district heating and electricity sectors.

If infringements are found to have occurred, reimbursement payments that have been unlawfully obtained must be repaid to the Federal Republic of Germany or the electricity transmission system operators. The imposition of fines is also possible.

Background

When the laws capping the prices of electricity (StromPBG) and pipeline-based natural gas and heating (EWPBG) entered into force, the Bundeskartellamt’s tasks were expanded to include the energy-specific control of abusive practices under these laws. In contrast to abuse control under competition law, the Bundeskartellamt’s intervention based on the energy price relief laws does not require companies to have a dominant position. If companies apply for reimbursement under the energy price relief laws, they are subject to the new abuse control provisions.

The Bundeskartellamt already provided information on the background of the energy price relief laws after the new laws had entered into force in December 2022 (press release).

The price relief measures are intended to ease the burden of gas, heating and electricity price increases on end consumers by capping these prices for a set quota (normally 80 per cent of the previous year’s consumption).

Consumers only pay the statutory capped price per kilowatt hour until their quota is used up. As long as consumers do not exceed their quota, they will not have to pay higher energy prices exceeding the price caps while the price relief measures are in force. The government will compensate energy suppliers for the difference between the contractually agreed energy price per kilowatt hour and the statutory price cap. The price relief laws prohibit the exploitation of the rules which are meant to ease the financial burden on consumers (Section 39 StromPBG and Section 27 EWPBG). In particular, this is to prevent a situation where energy suppliers could obtain higher statutory reimbursement payments by raising their base (end customer) prices for gas, heating or electricity without any objective justification resulting from increased costs.