Federal Cartel Office: First examination proceedings initiated in abuse control relating to energy price relief measures

The German Federal Cartel Office (FCO, Bundeskartellamt) announced on 15 May 2023 that the first examination proceedings in connection with the German laws on energy price relief (StromPBG, EWPBG) have been initiated. The proceedings concern companies, which have submitted applications for reimbursement to the Federal Government for the supply of gas under the relevant laws.
 

New field of activity of the BKartA

This is the first time the FCO is taking action in this area, having set up a department last year to enforce the prohibition of abuse in the gas, electricity and district heating sector. The President of the FCO, Andreas Mundt, stated in this regard at the end of last year: "The goal here is not to protect competition, but first and foremost to protect tax payers and to prevent companies from raising their prices irrespective of procurement cost increases with the aim to exploit government subsidies." The ultimate goal is to protect the government from exploitation.

 

Suspicious applications for reimbursement

According to the FCO, the first set of examination proceedings concern a double-digit number of gas suppliers who may have submitted excessive applications for reimbursement under the laws on price relief. There are indications that the underlying prices for end customers may not be objectively justified. Further proceedings will be initiated to examine cases relating to the district heating and electricity sectors.

According to the FCO, a significant four-digit number of complaints from citizens about energy prices have been received by the authority since the end of 2022. The investigations that have now been initiated were preceded by an analysis of all application and reporting data in several thousand applications by the FCO, which revealed in particular pricing, supply volumes, relief sums and customer numbers.

 

Examination standard

Whether there is abusive behaviour cannot be determined by the prices to end consumers alone. Rather, both procurement costs and regulatory costs must be included in the consideration. The FCO will therefore examine whether these costs have increased to such an extent that they justify a price increase in the respective manner. According to the legal regulations of the energy price brakes, this is not the case, for example, if the increased procurement costs are causally based on a sale of energy quantities procured before 25 November 2022 and a more expensive re-procurement.

 

Legal consequences

If violations are found, unlawfully obtained compensation payments must be repaid to the Federal Republic of Germany or the electricity transmission system operators. The imposition of fines is also possible.

 

Background and context

Many suppliers currently have to buy energy at very high prices. Current price increases mainly reflect these cost increases. To cushion this, the state is providing considerable financial resources to relieve the burden on consumers and the industry. The price brakes aim to provide relief to end consumers by capping prices for a certain quota for gas, heat and electricity.

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.

Should individual companies try to exploit these funds to receive higher or unjustified government subsidies, Mundt said, the FCO will prosecute exploitative practices. "In contrast to abuse control under competition law, the FCO 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."

Comment

The examination proceedings now initiated are probably only the beginning of a whole series of investigations by the FCO. On the one hand, this concerns other companies that supply consumers with gas. On the other hand, the initiation of various proceedings in the areas of district heating and electricity is also to be expected.

 

Sources

Bundeskartellamt - Exploitation of energy price caps prohibited - Bundeskartellamt starts to build the required organisational structure

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

Der Spiegel - Kartellamt plant im Zuge der Energiepreisbremse Ermittlungen gegen Energieversorger (German version only)