Hengeler Mueller advises TenneT in cartel proceeding regarding the split of electricity bidding zone between Germany and Austria

06. March 2020

In January 2019 several Austrian companies filed an antitrust claim before the Vienna Higher Regional Court against TenneT TSO GmbH ("TenneT"), the largest German electricity transmission system operator. Background of this landmark proceeding is the decision of the Agency for the Cooperation of Energy Regulators (ACER) in 2016 to split the former joint electricity bidding zone Germany/Luxembourg/Austria into two separate bidding zones on the German-Austrian border. Subsequently, this decision was implemented by the competent regulatory authorities and the concerned electricity transmission system operators, including TenneT, by formally declaring a congestion and applying congestion management measures at the German-Austrian border as of 1 October 2018. The claimants argue that TenneT thereby acted abusive and infringed antitrust law.

The proceeding concerns the fundamental question whether the implementation of binding European and national regulatory requirements conflicts with antitrust provisions. This aspect is of particular importance for the future development of European cross-border electricity markets. By ruling of 25 February 2020 the Vienna Higher Regional Court has rejected the claim on procedural grounds and on substance. The ruling is not yet binding.

Hengeler Mueller advises TenneT in the proceeding on all relevant antitrust and regulatory aspects in an integrated team with Austrian law firm Eisenberger & Herzog (partner Dieter Thalhammer). Hengeler Mueller team includes counsel Jörg Meinzenbach (Energy/Antitrust) and partners Thorsten Mäger (Antitrust) and Dirk Uwer (Energy) (all Düsseldorf).