BGH: Stuttgart district heating network does not fall to city after contract with EnBW ends
Baden-Württemberg's state capital wants to become climate-neutral by 2035 and significantly expand its district heating supply so that 38 percent of the city's area is supplied with district heating. This is to come from renewable energies.
Originally, in 1994, the city concluded a contract with the municipal company TWS for the laying of pipes and operation of the district heating network. TWS has since been incorporated into the EnBW Group, which has expanded the district heating network to its current length. It currently supplies around 18 percent of the city with district heating.
Shortly before the contract expired in 2014, the city wanted to put the usage rights out to tender again. It began the process, in which eight interested parties came forward. However, after the start of a citizens' petition calling for the municipal takeover of network operation, the local council then passed a resolution to this effect: the city was to take over ownership and operation.
The award procedure was suspended in 2016 and is still suspended. EnBW is continuing the supply for the time being. Most of the district heating pipes are laid on municipal land. The city went to court to ensure that it became the owner of the network.
It was unsuccessful before the Stuttgart Regional Court. The Higher Regional Court also did not grant the city ownership on appeal. It also rejected EnBW's demand for a new contract offer. However, the city was entitled to demand the dismantling of the turbines on its land, the Higher Regional Court ruled in 2020.
The BGH has now changed this decision only slightly. It dismissed the city's appeal. Ownership of the supply lines was not automatically transferred to the city because the contract with the supplier had ended. The BGH also stated that the city could not demand that EnBW transfer the grid systems to it.
Although the award procedure for the future grid operator had begun, it had not yet been completed. EnBW had applied and it was possible that EnBW or another company would continue to operate the district heating network in the future. The city therefore had no legitimate interest in becoming the owner.
EnBW's appeal was also largely rejected. The BGH stated that the city did not have to accept a permanent monopoly position of the company. Stuttgart was allowed to grant rights of way for a limited period of time and organize competition for the grid. Unlike the Higher Regional Court, however, the BGH ruled that EnBW was not obliged to remove the grid lines on municipal land.
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Source: www.stern.de
