Energy Industry Act (EnWG)


Coming in September November 2016 March 2017 in paperback and e-book: Energiewirtschaftsgesetz – Energy Industry Act

frontcover

———————————————————————————————————————————–

Hier soll nach und nach eine englische Übersetzung des Energiewirtschaftsgesetzes (EnWG) entstehen, denn anders als z.B. beim GWB gibt es anscheinend hierzu bislang keine veröffentlichte Version.

Disclaimer: Diese Übersetzung ist laienhaft und bietet keine Gewähr für Richtigkeit oder Aktualität. Also bitte auf eigene Gefahr nutzen. Für Kommentare und Verbesserungsvorschläge bin ich dankbar.

I will create step by step (or better: paragraph by paragraph) an English translation of the German Energy Industry Act (EnWG) since, unlike the GWB, there is no published version of an English translation as of now.

Disclaimer: This translation is amateurish and does not guarantee accuracy or timeliness. So please use at your own risk. Comments and suggestions are appreciated.

 

__________________________________________________

 

Act on the supply of electricity and gas
(Energy Industry Act – EnWG)

§ 1 Purpose of the Act
(1) Purpose of the act is the most secure, low-priced, consumer-friendly, efficient, and environmentally responsible line-bound supply of electricity and gas to the general public, which is increasingly based on renewable energy.
(2) The regulation of the electricity and gas supply systems serves the goals of ensuring effective and genuine competition in the supply of electricity and gas and ensuring efficient and reliable operation of energy supply systems for the long-term.
(3) The further legislative purpose is the transposition and implementation of European Community law in the area of the line-bound supply of energy.

§ 2 Duties of Energy Supply Undertakings
(1) Energy supply undertakings are obligated to supply within the meaning of § 1 within the framework of the provisions under this act.
(2) Obligations pursuant to the Renewable Energy Sources Act and the Combined Heat and Power Act shall remain unaffected subject to § 13, also in conjunction with § 14.

§ 3 Definition of Terms
For the purposes of this Act the following definitions are given:
1. Balancing Services
services for the provision of energy that are necessary to cover losses and to balance differences between generation and output, which includes, in particular, control energy.
1a. Output Capacity
as regarding gas, the maximum volume per hour in standard cubic meters that can be output and booked in total at an exit point from a network or subnetwork.
1b. Exit Point
a point at which gas can be taken from the network or subnetwork of a system operator.
2. Electricity Supply System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking that are operators of transmission or electricity distribution systems.
3. Electricity Distribution System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking that carry out the function of distributing electricity and are responsible for the operation, maintenance, and, if necessary, development of the distribution system within a given area and, where applicable, interconnection to other networks.
4. Energy Supply System Operators
operators of electricity supply systems or gas supply systems.
5. Gas Transmission System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking, that carry out the function of transmitting natural gas and are responsible for the operation, maintenance, and, if necessary, development of the transmission system within a given area and, where applicable, interconnection to other networks.
6. Gas Supply System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking that operate gas supply systems.
7. Gas Distribution System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking, that carry out the function of distributing gas and are responsible for the operation, maintenance, and, if necessary, development of the distribution system within a given area and, where applicable, interconnection to other networks.
8. LNG System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking, that carry out the function of the liquefaction of natural gas or the importation, offloading, and re-gaseification of liquefied natural gas and are responsible for the operation of an LNG facility.
9. Storage System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking that carry out the function of natural gas storage and are responsible for operating a storage facility.
10. Transmission System Operators
natural or legal persons or legally dependent organizational units of an energy supply undertaking, that are responsible for the operation, maintenance, and, if necessary, development of the transmission system within a given area and, where applicable, interconnection to other systems.
10a. Balancing Group
as regarding electricity within a control area, the aggregation of entry and exit points that serves the purpose of minimizing deviations between feed-in and output by its mix and enabling the conclusion of trading transactions.
10b. Balancing Zone
as regarding gas, the portion of one or more networks as to which entry and exit points can be allocated to a certain balancing group.
10c. Biogas
Bio-methane, gas from biomass, gas from landfills, gas from sewage treatment plants, and gas from mines.
11. Distributed Generation
a generation plant close to the load center connected to the distribution system.
12. Direct Line
a line that connects an individual production location to an individual customer or a line that connects an electricity generator and an electricity supply undertaking with its own plant, subsidiary, or customer for the purpose of direct supply, or a gas line constructed in addition to the interconnected system for the supply of individual customers.
13. Generating Plants for Own Use
plants for the generation of electricity to cover one’s own requirements, which are not operated by an energy supply undertaking.
13a. Feed-In Capacity
as regarding gas, the maximum volume per hour in standard cubic meters in total that can be fed-in at an entry point in a network or subnetwork of a system operator.
13b. Entry Point
a point at which gas can be transferred to the network or subnetwork of a system operator, including transfers from storage, gas production facilities, hubs, or blending and conversion plants.
14. Energy
electricity and gas, to the extent they are used in line-bound energy supply.
15. Power facilities
facilities for the generation, storage, transport, or delivery of energy, to the extent they do not only serve the transmission of signals; this includes distribution facilities of final customers and as to gas supply, also the final shut-off equipment before the consumption facility.
15a. Energy Derivative
a financial instrument listed in the current version of Section C, No. 5, 6 or 7 of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ. L 145, 30.4.2001, p.1, OJ. L 45, 16.2. 2005, p 18),  if this instrument is based on electricity or gas,
15b. Energy Efficiency Measures
measures for the improvement of the relationship between energy expenditure and the result achieved thereby in the area of energy conversion, energy transport, and energy use.
16. Energy Supply Systems
electricity supply systems and gas supply systems through one or more voltage or pressure levels.
17. Energy Supply Systems for General Supply
energy supply systems that serve to distribute energy to third parties and from the outset based on their dimension are not designed merely to supply certain final customers already existing or ascertainable at the time the network is built, but rather, are generally available to supply every final customer.
18. Energy Supply Undertakings
natural or legal persons that deliver energy to others, operate an energy supply system, or have disposition authority as an owner of an energy supply system.
18a. Energy Supply Contract
contract regarding the suppyl of eelectricity or gas, with the exception of energy derivatives,
18b. Renewable Energy Sources
energy within the meaning of § 5 subsec. (1) of the Renewable Energy Sources Act.
19. Gas Transmission
the transport of natural gas through a high pressure pipeline system other than an upstream pipeline system to enable supply to customers, however, not the actual supply of customers.
19a. Gas
Natural gas, biogas, liquefied petroleum gas in the context of §§ 4 and 49 as well as hydrogen, if fed into a gas supply system and is produced by electrolysis of water, and synthetically produced methane, which has been prepared by aqueous electrolytic generated hydrogen and subsequent methanation,
19b. Gas Supplier
natural and legal persons whose business activities in whole or in part are aimed at the sale of gas for the purpose of supply to final customers.
20. Gas Supply Systems
all transmission systems, gas distribution systems, LNG facilities, or storage facilities that are necessary for access to transmission, distribution, and LNG facilities, and that belong to or are operated by one or more energy supply undertakings, including linepack and its facilities supplying ancillary services and those of related undertakings, excluding those parts of networks or of facilities that are used for local production activities.
21. Wholesale Customers
all natural or legal persons with the exception of operators of transfer, transmission, electricity, and gas distribution systems, who purchase energy for the purpose of resale inside or outside the system where they are established.
22. Household Customers
final customers, who purchase energy primarily for their own household consumption or for their own consumption for professional, agricultural, or business purposes that does not exceed annual consumption of 10,000 kilowatt hours.
23. Ancillary Services
all services necessary for the operation of a transfer or electricity distribution system or all services necessary for access to and operation of transmission or gas distribution systems or LNG facilities or storage facilities, including load balancing and blending facilities; however, with the exclusion of facilities reserved exclusively for transmission system operators carrying out their functions.
24. Customers
wholesale customers, final customers, and undertakings that purchase energy.
24a. Customer Facilities
power facilities for delivering energy,
a) which are located on a spatially cohesive area,
b) connected to an energy supply system or a generation plant,
c) insignificant for ensuring effective and genuine competition in the supply of electricity and gas and
d) are made available free of charge and non-discriminating to everyone for the purpose of supplying connected final customers via non-discriminating network access, independently of the choice of an energy supplier,
24b. Customer Facilities for Operational Self Provision
power facilities for delivering energy,
a) which are located on a spatially cohesive operations area,
b) connected to an energy supply system or a generation plant,
c) used almost exclusively for the necessary operating transport of energy within the own undertaking or to affiliated undertakings or used almost exclusively for the appropriate operational transport to an energy supply system and
d) are made available free of charge and non-discriminating to everyone for the purpose of supplying connected final customers via non-discriminating network access, independently of the choice of an energy supplier,
25. Final Customers
customers that purchase energy for their own use.
26. LNG Facility
a terminal used for the liquefaction of natural gas or for the importation, offloading, and re-gaseification of LNG, and shall include ancillary services and temporary storage necessary for the re-gaseification process and subsequent supply to the transmission system, but shall not include any part of LNG terminals used for storage.
27. System Operators
system or facility operators within the meaning of numbers 2 through 7 and 10.
28. System Users
natural or legal persons supplying or being supplied with energy in an electricity or gas supply system.
29. Linepack
the storage of gas by compression in transmission and distribution systems, but excluding facilities reserved for transmission system operators carrying out their functions.
29a. New Infrastructure
infrastructure that is put into operation after July 12, 2005.
29b. Local Distribution System
a system that primarily serves supply to final customers via local lines, independent of the pressure level or the circumference of the lines; in regard to demarcation of the local distribution system from the upstream system levels, the concession area, in which a system is operated for general supply within the meaning of § 18 subsec. (1) and § 46 subsec. (2), is relied upon, including lines that connect a local distribution system to a neighboring local distribution system.
30. Control Area
as regards electricity supply, the system area for which an operator of transmission systems within the framework of the Union for the Co-ordination of Transmission of Electricity (UCTE) is responsible for primary control, secondary control, and minutes reserve.
31. Storage Facility
a facility for the storage of gas belonging to or operated by a gas supply undertaking including the parts of LNG facilities used for storage purposes; however, with the exclusion of the part of pipeline systems used for production activities and also excluding facilities that operators exclusively reserve for carrying out their functions.
31a. Subnetwork
as regards gas, a portion of the transport area of one or more system operators in which a transport customer can flexibly use reserved capacity at entry and exit points.
31b. Transport Customer
as regards gas, wholesale customers, gas suppliers including the trading department of a vertically integrated undertaking, and final customers.
32. Transmission
the transport of electricity on an extra high-voltage and high-voltage interconnected system for the purpose of supply to final customers or to distributors; however, not supply to customers.
33. Environmental Impact
that the supply of energy complies with the requirements of sustainable, in particular, rational and economical energy use, that the careful and long-lasting use of resources is guaranteed, and that the environment is stressed as little as possible; the use of combined heat and power and renewable energy sources have particular importance in this regard.
34. Interconnector
facilities that serve to interconnect electricity systems or a gas transmission line that crosses or spans a border between Member States for the sole purpose of connecting the national transmission systems of these Member States.
35. Interconnected System
a number of transmission and electricity distribution systems that are connected to one another through one or more interconnectors or a number of gas supply systems that are connected to one another.
36. Supply
the generation or production of energy to supply to customers, the sale of energy to customers, and the operation of an energy supply system.
37. Distribution
the transport of electricity with high, medium, or low voltage through electricity distribution systems or the transport of gas through local or regional pipeline systems to enable supply to customers; however, not the supply to customers.
38. Vertically Integrated Energy Supply Undertaking
undertakings active in the electricity or gas area or a group of undertakings active in the electricity or gas area that are related within the meaning of Article 3 subsec. (2) of Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24 p. 1), whereby the undertaking or group concerned in the electricity area performs at least one of the functions of transmission or distribution and at least one of the functions of generation or sales of electricity or in the natural gas area performs at least one of the functions of gas transmission, distribution, operation of an LNG facility, or storage, and at the same time the function of the extraction or sale of natural gas.
39. Upstream Pipeline Network
pipelines or a network of pipelines operated or constructed as part of an oil or gas extraction project, or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal, excluding network portions or portions of facilities used for local production activities.

§ 3a Relationship to Railway Law
This Act also applies to the line-bound supply of energy to railways, particularly traction current to the extent not otherwise regulated by railway law.

§ 4 Authorization to Operate a Network
(1) The commencement of operations of an energy supply system requires the authorization of the competent authority according to Land law.
(2) Authorization pursuant to subsection (1) may only be refused if the applicant does not have the personnel, technical, or economic capabilities and reliability to ensure the long-term operation of a network in accordance with the provisions of this Act. The operation of a facility mentioned in subsection (1), as to the commencement of which no authorization is required, may also be refused under the same conditions.
(3) In the case of universal succession or legal succession pursuant to the Law on Reorganizations or in other cases of the legal unbundling of a network operation pursuant to § 7, the authorization transfers to the legal successor.

§ 5 Notification of Supplying Energy
Energy supply undertakings that supply household customers with energy must promptly notify the commencement and termination of activity as well as changes in their firm to the Regulatory Authority. A list of the notified undertakings shall be continuously published by the Regulatory Authority on its Internet site; the firm and the address of the headquarters of the notified undertaking shall be published. The personnel, technical, and economic capabilities and the reliability of the management must be provided together with the notification of the commencement of activity. The Regulatory Authority may prohibit the exercise of the activity at any time in whole or in part if the personnel, technical, or economic capabilities or reliability is not ensured.
Part 2 – Unbundling

§ 6 Scope and Goal of Unbundling
(1) Vertically integrated undertakings and legally independent operators of electricity and gas supply systems that are related within the meaning of § 3 no. 38 to a vertically integrated energy supply undertaking are under a duty to guarantee transparency and non-discriminatory form and conduct of network operations. To achieve this goal they must ensure the independence of system operators from other areas of activities regarding energy supply pursuant to §§ 7 through 10. In deviation from sentence 2, as to the independence of operators of LNG facilities and of storage facilities in vertically integrated energy undertakings, to the extent the facilities are not required to be allocated to the gas supply systems, only §§ 9 and 10.
(2) The economic goods transferred in connection with the legal or operational unbundling pursuant to §§ 7 and 8 are considered a separate division within the meaning of §§ 15, 16, 20, and 24 of the Reorganization Tax Act. Sentence 1 only applies to those economic goods that are directly transferred based upon the organizational act of unbundling. For the application of § 15 subsec. (1) sentence 2 of the Reorganization Tax Act, the remaining property of the transferred corporate body in the context of the organizational act of unbundling is also considered as belonging to a separate division. § 15 subsec. (3) of the Reorganization Tax Act, § 8b subsec. (4) of the Corporate Income Tax Act, and § 6 subsec. (3) sentence 2 and subsec. (5) sentences 4 through 6 and § 16 subsec. (3) sentences 3 and 4 of the Income Tax Act are not applicable to measures pursuant to sentence 1 to the extent these measures were taken by undertakings within the meaning of § 7 subsecs. (1) and (2) by 31 December 2007 and by undertakings within the meaning of § 7 subsec. (3) by 31 December 2008. Upon the assessment of the question of whether the prerequisites for the application of sentences 1 and 2 are fulfilled, the Regulatory Authority shall provide official assistance to the finance authorities (§ 111 of the Tax Code).
(3) Business transactions within the meaning of § 1 of the Act on Real Property Transfer Tax that arise from the legal or operational unbundling in accordance with §§ 7 and 8, are exempt from the real property transfer tax. Subsection (2) sentences 4 and 5 shall apply mutatis mutandis.
(4) Subsections (2) and (3) shall apply mutatis mutandis to those undertakings that undertake a legal unbundling on a voluntary basis.

§ 7 Legal Unbundling
(1) Vertically integrated energy supply undertakings must ensure that system operators that are related within the meaning of § 3 no. 38 are independent of other areas of activity as to the supply of energy in regard to their legal form.
(2) Vertically integrated energy supply undertakings that have fewer than 100,000 customers connected directly or indirectly to their electricity supply system are exempt from the obligations pursuant to paragraph (1) in regard to operators of electricity distribution systems that are related to them within the meaning of § 3 no. 38. Sentence 1 shall apply to gas distribution systems mutatis mutandis.
(3) In regard to operators of electricity distribution systems and operators of gas distribution systems that are related to vertically integrated energy supply undertakings, the obligation in paragraph (1) first arises from 1 July 2007 onward.

§ 8 Operational Unbundling
(1) Undertakings pursuant to § 6 subsec. (1) sentence 1 must ensure the independence of their system operators related within the meaning of § 3 no. 38 in regard to organization, decision-making power, and the conduct of the business of the network in accordance with the following paragraphs.
(2) As to persons who work for the system operator, the following provisions apply to ensure non-discriminatory system operation:
1. Persons who are entrusted with management duties for the system operator or have authority to reach final decisions that are fundamental to guaranteeing non-discriminatory system operation, must participate in company structures of the system operator as to the exercise of these duties and may not participate in company structures of the vertically integrated energy supply undertaking responsible directly or indirectly for day-to-day operations in the areas of extraction, generation, or sales of energy to customers.
2. Persons who perform other duties regarding system operation in other parts of the vertically integrated energy supply undertaking are to be subject to the technical instructions of the system operator’s management in this regard.
(3) Undertakings pursuant to § 6 sentence 1 must take appropriate measures to ensure that those persons who are responsible for the management of the system operator can act with professional independence.
(4) Vertically integrated energy supply undertakings must ensure that the system operator has actual decision-making authority in regard to the assets of the vertically integrated energy supply undertaking required for the operation, maintenance, and development of the network and that these can be exercised independently of the management and the other company structures of the vertically integrated energy supply undertaking within the framework of the provisions of this Act. The use of corporate law instruments for asserting influence and supervising, including giving instructions, establishing general maximum debt limits, and approving annual financial plans or similar instruments for the performance of economic authority by the management of the vertically integrated energy supply undertaking and its rights of supervision over the management of the system operator in regard to its profitability, is permissible to the extent necessary for safeguarding the justified interests of the vertically integrated energy supply undertaking. In so doing, adherence to §§ 11 through 16 must be ensured. Instructions regarding day-to-day business are not allowed; likewise, instructions in regard to individual decisions regarding constructional measures as to power facilities are impermissible as long as these involve decisions in the context of a financial plan or similar instrument approved by the vertically integrated energy supply undertaking.
(5) Vertically integrated energy supply undertakings are obligated to establish a program with binding measures regarding conducting the business of the system in a non-discriminatory way for employees working in the network operations (equal treatment program), to introduce the employees of this undertaking and the Regulatory Authority, and to monitor compliance by one person or body. Employee obligations and possible penalties should be established. The responsible person or body shall annually provide a report to the Regulatory Authority by 31 March at the latest regarding the measures taken pursuant to sentence 1 during the previous calendar year and shall publish it.
(6) Vertically integrated energy supply undertakings that have fewer than 100,000 customers connected directly or indirectly to their electricity supply system, are exempt from the obligations pursuant to subsections (1) through (5) in regard to operators of electricity distribution systems that are related to them within the meaning of § 3 no. 38. Sentence 1 shall apply to gas distribution systems mutatis mutandis.

§ 9 Use of Information
(1) Notwithstanding statutory obligations regarding the disclosure of information, vertically integrated energy supply undertakings and system operators shall ensure that the confidentiality of economically sensitive information that they obtain in the exercise of their business activities as system operator, is maintained.
(2) If the vertically integrated energy supply undertaking or the system operator that is related to it within the meaning of § 3 no. 38 discloses information about its own activities as system operator that could provide economic benefits, this must take place in a non-discriminatory manner.

§ 10 Accounts and Internal Bookkeeping
(1) Energy supply undertakings, regardless of their ownership and their legal form, shall draw up, submit to audit, and publish annual accounts in accordance with the provisions of the Commercial Code applicable to corporations.
(2) Major transactions with related or associated undertakings within the meaning of § 271 subsec. (2) or § 311 of the Commercial Code shall be separately set forth in the notes to the annual accounts.
(3) For the avoidance of discrimination and cross-subsidization, undertakings that are related to a vertically integrated energy supply undertaking within the meaning of § 3 no. 38 shall keep separate accounts for each of their activities in the following listed areas in their internal accounting, as would be required if these activities were conducted by legally independent undertakings:
1. electricity transmission;
2. electricity distribution:
3. gas transmission;
4. gas distribution;
5. gas storage;
6. operation of LNG facilities.
Activities within the meaning of this provision also include all economic use of rights of ownership to electricity or gas supply systems, gas storage, or LNG facilities. As to other activities within the electricity sector and within the gas sector, accounts must be maintained that could be consolidated within each sector. For activities outside of the electricity and gas sectors, separate accounts must also be maintained that could be consolidated. To the extent direct allocation to individual activities is not possible or would involve unreasonable effort, allocation shall take place through a breakdown of the accounts that must be objective and understandable to third parties. Along with drawing up the annual accounts, a corresponding balance sheet and profit and loss statement shall be drawn up internally with the provisions named in subsection (1) for each of the named areas of activities. In doing so, the rules, including depreciation method, shall be reported in the internal accounting, in accordance with which the items under assets and liabilities as well as expenses and income are allocated to the accounts maintained pursuant to sentences 1 through 4.
(4) The audit of the annual accounts pursuant to subsection (1) shall also encompass adherence to the duties of internal accounting pursuant to subsection (3). As to this, in addition to the existence of separate accounts, whether the valuations and the allocation to accounts is proper and understandable, and whether the principle of continuity has been observed, must be evaluated. The audit report to the annual accounts must state whether the requirements pursuant to subsection (3) have been adhered to.
(5) The party ordering the audit of the annual accounts shall promptly send a copy of the audited annual accounts including the audit report or a certificate of its rejection to the Regulatory Authority. The balance sheets and profit and loss statements for the individual areas of activity shall be included. Undertakings that do not perform any activities pursuant to subsection (3) are released from the obligation pursuant to sentence 1; the authority of the Regulatory Authority shall remain unaffected. The Regulatory Authority shall treat annual reports regarding areas of activity not listed in subsection (3) sentence 1 as business secrets.

Part 3 – Regulation of System Operation

Section 1 – Duties of System Operators

§ 11 Operation of Energy Supply Systems
(1) Operators of energy supply systems are obligated to operate, maintain, and develop as needed a safe, reliable, and efficient energy supply system non-discriminatorily, to the extent this is economically feasible. In particular, they must fulfill the duties pursuant to §§ 12 through 16. The obligation also applies within the context of the exercise of economic authority by the management of the vertically integrated energy supply undertaking and its right of supervision pursuant to § 8 subsec. (4) sentence 2.
(2) In statutory instruments regarding the regulation of contractual and other legal relationships, rules may also be enacted regarding the liability of operators of energy supply systems arising from contract and tort liability for property and asset damage suffered by a customer because of interruption or irregularity in the energy supply. In this regard, liability may be limited to intentional or grossly negligent causes and the amount may be limited. To the extent necessary for the avoidance of unreasonable economic risks of system operation in connection with the obligations pursuant to § 13 subsec. (2), also in conjunction with § 14 and § 16 subsec. (2), liability may also be completely excluded.

§ 12 Duties of Operators of Transmission Systems
(1) Operators of transmission systems must manage the energy flows on the system, taking into account exchanges with other interconnected systems, and contribute to a secure and reliable energy supply system in their control area and, thus, to a secure energy supply, through the availability and the operation of their transmission systems in national and international interconnections.
(2) Operators of transmission systems must make necessary information available to operators of another system with which their own transmission system is technically interconnected in order to ensure secure and efficient operation, coordinated development, and interconnection.
(3) Operators of transmission systems must continuously ensure the ability of the system to satisfy demands for the transmission of electricity and to particularly contribute to supply security by appropriate transmission capacity and reliability of the system.
(3a) Operators of transmission systems must prepare a report every two years, the first time from …[insert: first day of the seventh calendar month following promulgation] regarding the system status and system development planning and present it to the Regulatory Authority upon request. Upon request of the Regulatory Authority a report corresponding to sentence 1 must also be provided to it regarding certain portions of the transmission system within three months. The Regulatory Authority shall grant third parties access to the reports pursuant to sentences 1 and 2 upon application when there is a justified interest, particularly to the extent it is necessary for the implementation of planning for power facilities, within a deadline of two months. The Regulatory Authority may establish more specific provisions pursuant to § 28 subsec. (1) regarding the contents of the report.
(4) Operators of generation facilities, operators of electricity distribution systems, and suppliers of electricity are obligated to make information promptly available to operators of transmission systems upon request that is necessary for the transmission systems to be securely and reliably operated, maintained, and developed.

§ 13 System Responsibility of Operators of Transmission Systems
(1) To the extent the security or reliability of the electricity supply system in a given control area is threatened or impaired, operators of transmission systems are entitled and obligated to remove the threat or impairment through:
1. system-related measures, particularly through network switching; and
2. market-related measures, such as, in particular, the use of control energy, contractually agreed upon loads that can be turned on and off, information regarding congestion, management of congestion, and the mobilization of additional reserves.
In the case of system-related measures pursuant to sentence 1, the obligations pursuant to § 4 subsec. (1) of the Renewable Energy Sources Act and pursuant to § 4 subsec. (1) of the Combined Heat and Power Act shall be taken into account. In the case of measures pursuant to sentence 1, action must be taken in accordance with technical energy industry principles within the meaning of § 1 subsec. (1).
(2) If a threat or impairment cannot or cannot timely be removed by measures pursuant to subsection (1), operators of transmission systems within the framework of cooperation pursuant to § 12 subsec. (1) are entitled and obligated to adapt all electricity feed-in, transit, and output in their control area to the requirements of secure and reliable operation of the transmission system or to demand such adaptation. In cases of necessary adaptation of electricity feed-in and output, in particular the affected operators of electricity distribution systems and electricity traders should be informed beforehand to the extent possible.
(3) Threat to the security and reliability of the electricity supply system in each control area exists when there is concern about local outages of the transmission system or short-term network congestion or when there is concern that the maintenance of frequency, voltage, or stability by the transmission system operator cannot be ensured to the extent necessary.
(4) In the event of adaptation pursuant to subsection (2), until removal of the threat or impairment all service obligations affected hereby are suspended. As far as measures are undertaken upon the existence of the conditions in subsection (2), liability in this respect for property damage is excluded. Otherwise § 11 subsec. (2) shall remain unaffected.
(5) The Regulatory Authority and those directly affected by implemented adaptations and measures shall be promptly informed of the reasons therefor. Upon request, evidence shall be provided as to the reasons given.
(6) If the measures pursuant to subsection (2) are insufficient to avert a disruption in supply for essential requirements within the meaning of § 1 of the Energy Security Act in the assessment of an operator of a transmission system, the operator of transmission systems must promptly inform the Regulatory Authority.
(7) For the avoidance of serious supply disruptions, operators of transmission systems shall prepare an annual analysis of weak points and undertake the necessary measures based thereupon. The personnel at the control points shall be instructed accordingly. The transmission system operator shall annually report to the Regulatory Authority by 31 August regarding the results of the analysis of weak points and the necessary measures.

§ 14 Tasks of Operators of Electricity Distribution Systems
(1) §§ 12 and 13 shall apply mutatis mutandis to operators of electricity distribution systems within the context of their distribution obligations to the extent they are responsible for the security and reliability of the electricity supply of their system. § 12 subsec. (3a) shall be applied subject to the proviso that operators of electricity distribution systems shall first present a report regarding system status and system development planning on …[insert: first day of the 13th calendar month following promulgation]. Operators of electricity distribution systems including vertically integrated energy supply undertakings with fewer than 10,000 customers directly or indirectly connected to the electricity distribution system are exempted from the duties pursuant to § 12 subsec. (3a). § 13 subsec. (7) is applicable with the proviso that operators of electricity distribution systems are only required to provide the analysis of weak points and report the results upon request of the Regulatory Authority.
(1a) Operators of electricity distribution systems are obligated to support measures by operators of transmission systems to which they are technically interconnected with their own measures according to their guidelines to the extent these are necessary to avoid threats and impairments to the transmission systems with the least possible interference to supply.
(2) In planning the development of the distribution system, operators of electricity distribution systems shall take into consideration possibilities for energy efficiency and demand-side management measures and distributed generation. The federal government, by ordinance that does not require the approval of the Bundesrat, is authorized to establish general principles for the consideration of the interests named in sentence 1 in regard to planning.

§ 15 Duties of Operators of Gas Transmission Systems
(1) Operators of gas transmission systems shall regulate the transport of gas through their system taking into account interconnections with other systems and to contribute to a secure and reliable gas supply system within their network and, thus, to a secure energy supply, through the availability and the operation of their gas transmission systems in national and international interconnections.
(2) To ensure that the transport and storage of natural gas can take place in a manner that comports with secure and efficient operation of the interconnected system, operators of gas transmission systems and storage or LNG facilities shall make necessary information available to every other operator of a gas supply system with which their own gas transmission system or facility is technically interconnected.
(3) Operators of gas transmission systems shall continuously ensure the ability of their systems to satisfy demands for transport services for gas and to especially contribute to supply security through corresponding transport capacity and system reliability.

§ 16 System Responsibility of Operators of Gas Transmission Systems
(1) To the extent the security or reliability of the gas supply system is threatened or impaired in the system at issue, operators of gas transmission systems are entitled and obligated to remove the threat or impairment through:
1. system-related measures; and
2. market-related measures, such as, in particular, the use of balancing, contractual rules regarding shut-off, and the use of storage.
(2) If a threat or impairment cannot or cannot timely be removed by measures pursuant to subsection (1), gas transmission system operators within the framework of cooperation pursuant to § 15 subsec. (1) are entitled and obligated to adapt all gas feed-in, gas transport, and gas output in their control area to the requirements of secure and reliable operation of the transmission system or to demand such adaptation. In cases of necessary adaptation of gas feed-in and output, the affected operators of other gas transmission and gas distribution systems and gas traders should be informed beforehand as far as possible.
(4) In the event of adaptation pursuant to subsection (2), until removal of the threat or impairment all service obligations affected hereby are suspended. As far as measures are undertaken upon the existence of the prerequisites in subsection (2), liability in this regard for property damage is excluded. Otherwise § 11 subsec. (2) shall remain unaffected.
(5) The Regulatory Authority and those directly affected by implemented adaptations and measures shall be promptly informed of the reasons therefor. Upon request evidence shall be provided as to the reasons given.
(7) For the avoidance of serious supply disruptions, operators of gas transmission systems shall prepare an annual analysis of weak points and undertake necessary measures based thereupon. Upon request, the gas transmission system operator shall report the results of the analysis of weak points and the measures to the Regulatory Authority.

§ 16a Duties of Operators of Gas Distribution Systems
§§ 15 and 16 subsections (1) through (4) shall apply mutatis mutandis to operators of gas distribution systems in the context of their distribution tasks to the extent they are responsible for the security and reliability of the gas supply in their system. § 16 subsec. (5) shall be applicable with the proviso that operators of gas distribution systems are only required to prepare an analysis of weak points and report the results upon request of the Regulatory Authority.
Section 2 – System Connection

§ 17 System Connection
(1) Operators of energy supply undertakings shall connect final customers, level or downstream electricity and gas supply systems and lines, as well as generation and storage facilities to their system at technical and economic conditions that are reasonable, non-discriminatory, and not less favorable than used for operators of energy supply systems in similar situations for services within their undertaking or in regard to related or associated undertakings.
(2) Operators of energy supply systems may refuse connection to their system pursuant to subsection (1) to the extent they demonstrate that granting connection to their system is impossible or unreasonable based upon operational or other economic or technical reasons taking into account the objectives of § 1. The refusal shall be substantiated in writing. Upon request of the requesting party, in the case of lack of capacity the reasons must also contain meaningful information regarding the concrete measures and the costs associated therewith would be individually necessary for development of the system to achieve connection to the system; the reasons can be subsequently demanded. As to the substantiation pursuant to sentence 3, compensation that does not exceed half of the costs that have arisen may be requested to the extent reference was made to costs arising in advance.
(3) The federal government has the power:
1. to enact provisions regarding the technical and economic conditions for system connection pursuant to subsection (1) or methods for ascertaining these conditions, and
2. to regulate in which cases and under which prerequisites the Regulatory Authority may establish these conditions or methods or approve them upon application of a system operator,
by ordinance requiring the approval of the Bundesrat.
(4) In particular, under reasonable consideration of the interests of operators of energy supply systems and energy customers, by ordinance in accordance with sentence 1:
1. uniform contractual provisions can be established,
2. rules regarding contract conclusions and the object and termination of contracts can be set, and
3. the scope and conditions at which system connection pursuant to subsection (2) is reasonable can be established or further defined; in this regard the public interest in the most inexpensive structure possible for energy supply systems may also be taken into account.

§ 18 General Duty of Connection
(1) In deviation from § 17, operators of energy supply systems for municipal territories in which they operate energy supply systems for general supply to final customers shall publish general conditions for system connection to final customers in low voltage or low pressure and for the use of connections by final customers and shall connect anyone to their energy supply system at these conditions and allow use of the connection for extracting energy. These duties do not exist when the connection or use of the connection is not reasonable for the operator of the energy supply system based upon economic reasons.
(2) Whoever operates a facility for the generation of electricity for their own use or allows themselves to be connected by a third party to the energy supply system cannot rely upon the general duty of connection pursuant to subsection (1) sentence 1. However, they can demand connection to the system under the prerequisites in § 17. Sentence 1 does not apply to use by final customers from combined heat and power facilities up to 150 kilowatts of electricity and from renewable energy sources to cover their own requirements.
(3) By ordinance requiring the approval of the Bundesrat, the federal government may reasonably establish general conditions for system connection and its use by those final customers connected to the low voltage or low pressure networks and hereby, in consideration of the interests of operators of energy supply systems and energy recipients
1. uniformly establish the conditions for the establishment and maintenance of the system connection, as well as the prerequisites for use of the connection,
2. make rules regarding the conclusion of a contract and the creation of the legal relationship as to use of the connection, assignment of the system connection contract in the event of the transfer of ownership of the connected customer facility, the subject matter and the termination of the contracts, or the legal relationships regarding use of the connection; and
3. uniformly establish the rights and duties of the participants.
The interests of the energy recipient in low-cost solutions shall be particularly taken into account in this regard. Sentences 1 and 2 shall apply mutatis mutandis to conditions regarding supply relationships organized under public law with the exception of the regulation of administrative proceedings.

§ 19 Technical Provisions
(1) Operators of electricity supply undertakings are obligated, in consideration of the conditions set forth in § 17 for the system connection of generation facilities, electricity distribution systems, facilities of directly connected customers, interconnectors, and interconnected systems, to establish minimum technical standards for their design and operation and to publish these on the Internet.
(2) Operators of gas supply systems are obligated, in consideration of the conditions set forth in § 17 for the system connection of LNG facilities, distributed generation and storage facilities, of other transmission or gas distribution systems, and of interconnected systems, to establish minimum technical standards for their design and operation and to publish these in the Internet.
(3) The minimum technical standards in accordance with subsections (1) and (2) must ensure system interoperability and must be technically justified and non-discriminatory. Interoperability particularly encompasses technical connection conditions and requirements for network compatible gas quality including gas from biomass or other types of gas to the extent it can be technically fed into the gas supply system without impairment of the security of the gas supply system or can be transported through this system. § 49 subsections (2) through (4) shall apply to the guarantee of technical security. The Regulatory Authority shall be informed of the minimum requirements. The Federal Ministry of Economics and Labour shall inform the European Commission in accordance with Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules of information society services (OJ L 204, p. 37), amended by Directive 98/48/EC (OJ L 217. p. 18).
Section 3 – System Access

§ 20 Access to Energy Supply Systems
(1) Operators of energy supply systems shall grant non-discriminatory system access to everyone at criteria that are technically justified and shall publish on the Internet the conditions, including standard form agreements and fees, for this system access. They must cooperate to the extent necessary to guarantee efficient system access. In addition, they must make the information necessary for efficient system access available to users of the network. The rules for system access shall be suitable for general business.
(1a) To arrange the right of access to electricity supply systems in accordance with subsection (1), final electricity customers or suppliers shall conclude contracts with those energy supply undertakings from which the electricity will be taken and in whose systems the feed-in of electricity will take place (“System Usage Contract”). If System Usage Contracts are concluded by suppliers, they are not required to relate to certain output points (“Supplier Framework Contract”). System Usage Contracts or Supplier Framework Contracts arrange access to the entire electricity supply system. All operators of electricity supply systems are obligated to cooperate to the extent necessary to be able to ensure that access to the entire electricity supply system through the operator of the electricity supply system that concluded the System Usage Contract or Supplier Framework Contracts can be guaranteed. System access by final customers and suppliers requires that balancing between feed-in and output takes place through a balancing group that is included in a contractually established balancing group system in accordance with a statutory instrument regarding access to electricity supply systems.
(1b) To arrange access to the gas supply system, operators of gas supply systems must offer feed-in and output capacity that enable system access without establishment of a transaction-dependent transport path and that are utilizable and transferable independently of one another. To deal with access to the gas supply system, a contract regarding feed-in capacity (“Feed-in Contract”) with the system operator in whose network the feed-in of gas is to take place is required. In addition, a contract regarding output capacity (“Output Contract”) must be concluded with the system operator from whose network the output of gas is to take place. If the Output Contract is concluded by a supplier with an operator of a distribution system, it is not required to relate to certain output points. All operators of gas supply systems are obligated to bindingly cooperate with one another to the extent necessary so that transport customers are only required to conclude one feed-in and one output contract for handling transport through numerous networks interconnected by system connection points, unless this cooperation is not technically possible or is economically unreasonable. They are obligated to work closely together for the objective set forth in sentence 5 as to the calculation and offer of capacity, the provision of system services, and the allocation of costs or fees. They shall develop common contract standards for system access and, taking into account technical limitations and economic viability, they shall exhaust all possibilities for cooperation with other system operators with the goal of keeping the number of networks or subnetworks and balancing areas as low as possible. Operators of networks interconnected through system connection points shall cooperate in the calculation and demonstration of technical capacity with the goal of being able to provide the highest possible scope of coordinated capacity in the interconnected networks. In the event of a switch in supplier, the new supplier can request transfer of the booked feed-in and output capacities necessary for supplying the customer from the former supplier, if the supply to the customer in accordance with the supply obligation received by him is not otherwise possible and he justifies this to the former supplier. Operators of gas transmission systems are obligated to organize the rights to booked capacity in such a way that they entitle the transport customer to provide gas at each feed-in point for output at each exit point in its network or, in the case of long-term shortages, a subnetwork (entry-exit system). Operators of a local distribution system have to allow system access pursuant to an ordinance in accordance with § 24 regarding access to gas supply systems by the acceptance of the gas at feed-in points of their system for all connected exit points.
(2) Operators of energy supply systems can reject access pursuant to subsection (1) to the extent they demonstrate that providing system access is not possible or is not reasonable based on operational or other reasons taking into account the objectives of § 1. The refusal shall be substantiated in writing and promptly notified to the Regulatory Authority. Upon request of the requesting party, in the event of lack of capacity the reasons must also contain meaningful information regarding the measures and costs associated therewith that would be necessary for development of the system in order to achieve connection to the system; the reasons can be subsequently requested. As to the substantiation pursuant to sentence 3, compensation that does not exceed half of the costs that have arisen may be requested to the extent reference in advance was made to costs arising.

§ 21 Conditions and Fees for System Access
(1) The conditions and fees for system access shall be reasonable, non-discriminatory, transparent, and shall not be less favorable than those used by operators of energy supply systems in comparable cases for services within their undertaking or in regard to related or associated undertakings and actually or implicitly charged.
(2) The fees shall be based upon the costs of operations management that must comport with an efficient and structurally comparable system operator, taking into account incentives for the efficient provision of services and a reasonable, competitive, and risk-adjusted return on invested capital, to the extent an ordinance pursuant to § 24 does not provide for deviation from cost-reflective tarification. To the extent the fees are calculated on a cost-reflective basis, costs and cost components, the scope of which would not comport with competition, shall not be taken into account.
(3) To ensure that the fees for system access are reflective of the costs of operations management pursuant to subsection (2), the Regulatory Authority may conduct periodic comparisons of system access fees and revenues or costs of operators of an energy supply system (“Comparison Proceeding”). To the extent cost-reflective tarification takes place and the fees are approved, only a comparison of costs shall take place.
(4) The results of the Comparison Proceeding shall be taken into account in the cost-reflective tarification pursuant to subsection (2). If a comparison shows that the fees, revenues, or costs of the system in total or for individual network or substation levels of an individual operator of an energy supply system exceeds the average fees, revenues, or costs of comparable operators of energy supply systems, it shall be presumed that they do not correspond to operations management pursuant to subsection (2).

§ 21a Regulatory Guidelines for Incentives for Efficient Provision of Services
(1) To the extent cost-reflective tarification within the meaning of § 21 subsec. (2) sentence 1 takes place, pursuant to an ordinance in accordance with subsection (6) sentence 1 no. 1, the system access fees of operators of energy supply systems may also be determined by a method that sets incentives for efficient provision of services (“Incentive Regulation”), in deviation from the tarification pursuant to § 21 subsecs. (2) through (4).
(2) Incentive Regulation involves guidelines as to upper limits that are usually set for the amount of system access fees or the total revenues from system access fees for a regulation period taking into account efficiency standards. The upper limits and efficiency standards are related to individual system operators or groups of system operators as well as either to the entire electricity or gas supply system, portions of the system, or to individual network and substation levels. In this regard the upper limits are to be provided at least for the beginning and the end of the regulation period. Guidelines for groups of system operators shall require that the system operators are objectively structurally comparable.
(3) The regulation period shall not be less than two years and shall not exceed five years. The guidelines may provide for time-staggered development of the upper limits within a regulation period. The guidelines shall not be modified for a regulation period to the extent changes to additional burdens brought about by the state based upon taxes or acceptance and compensation obligations pursuant to the Renewable Energy Sources Act and the Combined Heat and Power Act or other circumstances arise for which the system operator is not responsible. In the event upper limits for system access fees are set, the guidelines shall take into account the effects of annual fluctuations in consumption on the total revenues of the system operators (“Effects of Consumption”).
(4) In determining the upper limits, a distinction shall be made between the portion of costs that can be influenced by each system operator and the portion of costs that cannot be influenced by it. The portion of costs of the entire fee that cannot be influenced shall be determined pursuant to § 21 subsec. (2); this particularly includes the portion of costs that do not relate to non-attributable structural differences in supply territories, to statutory acceptance and compensation obligations, concession fees, and operating taxes. To the extent guidelines relate to groups of system operators, system operators that are allocated to a group in consideration of their structural differences are considered structurally comparable. The portion of costs that can be influenced shall be determined pursuant to § 21 subsecs. (2) through (4) at the beginning of a regulation period. Efficiency standards shall only relate to the portion of costs that can be influenced. The guidelines for the development or establishment of the upper limits within a regulation period shall provide for adjustment as to general inflation.
(5) The efficiency standards for a regulation period shall be determined by the determination of efficiency goals individual to the undertaking or specific to the group on the basis of a comparison of efficiency particularly taking into account the existing efficiency of each network operation, objective structural differences, total economic productivity development adjusted for inflation, supply quality, quality standards related thereto, and statutory rules. Quality standards shall be determined based upon an assessment of reliability measures as to which structural differences shall also be taken into account. In the event of a violation of quality standards, the upper limits for determination of the system access fees for an energy supply undertaking may also be reduced. The efficiency standards must be formulated and distributed across the regulation period in such a way that the system operator concerned or the group of system operators concerned can achieve and exceed the guidelines using its or their possible and reasonable measures. The method for determining efficiency standards must be devised in such a way that slight changes to individual parameters of the method upon which it is based will not lead to a disproportionate change in the standards, particularly in comparison to significance.
(6) The federal government shall have the power, by ordinance requiring the approval of the Bundesrat:
1. to determine whether and from what point in time system access fees will be determined through Incentive Regulation;
2. to regulate more specifically the design of an Incentive Regulation pursuant to subsections (1) through (5) and its implementation;
3. to regulate in which cases and under which conditions the Regulatory Authority can set commitments in the context of the implementation of the methods and can approve measures by system operators;
In particular, through ordinance pursuant to sentence 1:
1. rules for establishing relevant structural criteria for the formation of a group and regarding their significance for the design of efficiency standards can be enacted;
2. requirements as to the formation of a group including the objective structural circumstances to be taken into account can be set, whereby special guidelines shall be provided for operators of transmission systems;
3. minimum and maximum limits for efficiency and quality standards may be provided for and rules in the event of not reaching or exceeding them, as well as rules for the design of these standards including the development path can be set;
4. rules can be set regarding the conditions under which the upper limit within a regulation period can be adjusted by the Regulatory Authority upon application of the system operator concerned in deviation from the development path;
5. rules regarding the procedure for taking into account the inflation rate can be set;
6. more detailed requirements as to the reliability of a method for determining efficiency standards can be set;
7. rules can be set regarding the portion of costs that are continuously or temporarily considered to not be cost portions that can be influenced;
8. rules can be set that provide for preferential treatment of investments that in consideration of the objectives of § 1 serve the improvement of supply security;
9. rules for the determination of reliability measures for system operation taking into consideration information in accordance with § 51 and their effect on the regulatory guidelines can be set, whereby reductions in upper limits to determine system access fees may also be provided for;
10. rules for the collection of data necessary for implementation of an Incentive Regulation by the Regulatory Authority.

§ 21b Measuring Systems
(1) The installation, operation, and maintenance of measuring systems as well as the measurement of the energy supplied are duties of the operator of energy supply systems to the extent another agreement has not been made pursuant to subsections (2) or (3).
(2) The installation, operation, and maintenance of measuring systems may be conducted by a third party at the desire of the energy recipient concerned insofar as the flawless operation of the measuring instruments in compliance with weights and measures regulations is guaranteed by the third party and the prerequisites pursuant to sentence 5 no. 2 are met. The system operator is entitled to refuse installation, operation, and maintenance of measuring systems by a third party insofar as the prerequisites set forth in sentence 1 are not met. The refusal shall be substantiated in writing. The operator of the measuring point has a claim to the installation of a measuring system owned by it. It shall:
1. comply with weights and measures regulations, and
2. be sufficient for the uniform minimum technical standards provided for by the system operator for his network area and minimum requirements in regard to data scope and data quality.
The system operator’s minimum requirements shall be objectively justified and non-discriminatory. The operator of the measuring point and the system operator are obligated to conclude a contract as to the organization of their legal relationships. Upon a change of measuring point operator, the former and the new measuring point operators are obligated to conclude contracts necessary for an efficient change process and to promptly exchange necessary information.
(3) The federal government shall have the power to regulate by ordinance requiring the approval of the Bundesrat, the requirements for the installation, maintenance, and operation of measuring systems by a third party. By ordinance requiring the approval of the Bundesrat the federal government can also determine that the measuring of energy may be conducted by a third party at the desire of the energy recipient concerned insofar as flawless measuring and passing on of data to all entitled system operators and suppliers that enables timely and complete invoicing is guaranteed by the third party; in this regard, in relation to the licensing of the third party for measuring, reasonable transfer deadlines are to be provided for. In ordinances pursuant to sentences 1 and 2, in particular:
1. the point in time of transmittal of the measure data and the data formats to be used for transmittal can be established;
2. guidelines for documentation and archiving the relevant data can be determined;
3. liability for errors in measurement and data transmittal can be regulated;
4. provisions for changing the measuring point operator can be defined in more detail;
5. the procedure upon breakdown of the measuring point operator can be regulated.

§ 22 Acquisition of Energy for the Provision of Balancing Services
(1) Operators of energy supply systems shall acquire the power they require to cover losses and for the balancing of differences between feed-in and output, in accordance with transparent, non-discriminatory, and market-oriented procedures, including in regard to related or associated undertakings. The objective of the least expensive energy supply possible shall be accorded particular importance in the formulation of the procedure, for example, through the use of daily acquisition, to the extent the obligations pursuant to §§ 13 and 16 are not endangered hereby.
(2) In the acquisition of control energy by the operators of transmission systems, a non-discriminatory and transparent bidding procedure shall be used, in which the requirements that the control energy bidder must fulfill for participation shall be standardized by the transmission systems operators to the extent technically possible. Operators of transmission systems shall establish a joint Internet platform for control energy bidding. Establishment of the platform pursuant to the sentence 2 shall be announced to the Regulatory Authority. Operators of transmission systems, taking into account their respective system responsibility, are obligated to cooperate to reduce expenses for control energy in consideration of network conditions.

§ 23 Provision of Balancing Services
To the extent balancing of the energy supply system is incumbent upon energy supply system operators the rules set by them for this purpose, including the fees to be paid by network users for energy imbalances, shall be objectively justified, transparent, non-discriminatory, and shall not be less favorable than those used by operators of energy supply systems in comparable cases for services within their undertaking or for related or associated undertakings and actually or implicitly charged. The fees shall be established on a cost-reflective basis based on operations management pursuant to § 21 subsec. (2) and shall be published on the Internet together with the other rules.

§ 23a Approval of System Access Fees
(1) To the extent cost-reflective tarification within the meaning of § 21 subsec. (2) sentence 1 takes place, system access fees require approval in accordance with § 21, unless the determination of fees for system access has been ordered by means of Incentive Regulation by fixing or approval in an ordinance pursuant to § 21a subsec. (6).
(2) Approval shall be granted insofar as the fees accord with the requirements of this Act and the ordinances enacted based upon § 24. Approved fees are maximum prices and shall only be exceeded to the extent exceeding the limit takes place exclusively on the basis of passing on the increased cost-shifting rates of an upstream network or substation level after grant of the approval; exceeding the limit shall be reported promptly to the Regulatory Authority.
(3) Approval shall be applied for in writing at least six months prior to the point in time from which the fees are to be effective. The documentation necessary for an analysis shall be included with the application; upon request of the Regulatory Authority, applicants shall also transmit the documentation electronically. The Regulatory Authority may provide a form and a uniform format for electronic transmission. The documentation shall contain the following information:
1. a comparison to previous fees, the fees applied for, and their respective calculation;
2. information required in accordance with the provisions regarding structure classes and the report on the determination of system fees pursuant to an ordinance regarding the fees for access to energy supply systems pursuant to § 24; and
3. justification for the change in fees, taking into account the rules in § 21 and an ordinance regarding the fees for access to energy supply systems pursuant to § 24.
The Regulatory Authority shall provide written confirmation of receipt of the application to the applicant. It may request presentation of additional information or documentation to the extent necessary for the analysis of the prerequisites pursuant to subsection (2); sentence 5 applies mutatis mutandis to information and documentation subsequently submitted. The Federal Ministry of Economics and Labour shall have the power to specify in further detail the procedure and requirements as to the documentation to be provided pursuant to sentence 4 in an ordinance requiring approval of the Bundesrat.
(4) Approval shall be limited in duration and shall be granted with a reservation of revocation; conditions may be placed on its grant and conditions may be connected thereto. If the Regulatory Authority does not reach a decision within six months after presentation of complete documentation pursuant to subsection (3), the fee applied for is considered approved under a reservation of revocation for a time period of one year. Sentence 2 does not apply when:
1. the applicant undertaking agreed to an extension of the deadline under sentence 2, or
2. the Regulatory Authority cannot decide because of incorrect information or because of information that was not timely provided and it had informed the applicant thereof providing the reasons therefor prior to expiry of the deadline.
(5) If prior to the expiry of the deadline or before a revocation becomes effective a new approval is applied for pursuant to subsection (4) sentence 1 or 2 the fees approved up until then can be maintained until the decision on the application. If a new decision is not timely applied for, the Regulatory Authority may temporarily establish a fee as a maximum price taking into consideration §§ 21 and 30 as well as based upon an ordinance enacted pursuant to § 24.

§ 24 Rules on System Access Conditions, Fees for System Access, and for the Provision and Acquisition of Balancing Services
The federal government shall have the power, through ordinance requiring the approval of the Bundesrat:
1. to establish conditions for system access including the acquisition and supply of balancing services or methods to determine these conditions as well as methods for determining the fees for system access pursuant to §§ 20 through 23;
2. to regulate in which cases and under which prerequisites the Regulatory Authority can establish these conditions or methods or can approve them upon application of a system operator;
3. to regulate in which special cases of system use and under which prerequisites the Regulatory Authority in individual cases may authorize or reject individual fees for system access; and
4. to regulate in which cases the Regulatory Authority must use its authority pursuant to § 65.
In particular, by ordinance in accordance with sentence 1:
1. energy supply system operators may be placed under a duty to work together to create the most uniform possible conditions in granting system access in a way to be determined in more detail;
2. the rights and duties of participants, particularly cooperation and duties of energy supply system operators including the exchange of the necessary data and the information required for system access may be uniformly established;
2a. the rights of consumers in handling a change in provider may be established;
3. the nature and design of system access and the acquisition and supply of balancing services including the contracts and legal relationships necessary for this, and the bidding procedure also in deviation from § 22 subsec. (2) sentence 2, the provisions of the contracts, and the organization of the legal relationships may be uniformly established as well as rules regarding the creation and termination of the contracts and legal relationships;
3a. priority may be granted in the context of the design of system access to gas supply systems for facilities for the production of biogas in regard to the selection procedure as to threatened capacity shortages and as to access to local distribution systems;
3b. the Regulatory Authority may be authorized to arrange consolidation of subnetworks insofar as this is technically possible and economically reasonable;
4. rules for the ascertainment of fees for system access can be set, whereby the method for determining the fees shall be designed in such a way as to ensure management operation pursuant to § 21 subsec. (2) and that the investments in the system necessary for operational and supply security and the functional capability of the networks are guaranteed;
5. rules regarding deviation from the principle of cost-reflection pursuant to § 21 subsec. (2) sentence 1 can be set, in accordance with which tarification for existing or potential line competition can take place on the basis of a market oriented procedure or the setting of prices in competition;
6. rules can be set regarding which network-related and other data necessary for their calculation shall be collected by energy supply system operators and the time period for which it must be saved;
7. rules for the implementation of a Comparison Proceeding pursuant to § 21 subsec. (3) including the collection of the data necessary for this can be set.
In cases under sentence 2 nos. 1 and 2, particular attention shall be paid to the interest in enabling efficient and non-discriminatory system access within the framework of the most transaction independent model possible, taking into consideration the particular characteristics of both the electricity and gas industry; the cooperation should serve the objectives in § 1 subsec. 2. Rules pursuant to sentence 2 no. 3 may also provide for additional requirements regarding cooperation among operators of transmission systems in the acquisition of control energy and to reduce the costs of control energy. Rules pursuant to sentence 2 nos. 4 and 5 may provide that fees may not only be calculated and invoiced based only upon output, but, in addition, on the basis of the feed-in of power, whereby as to the feed-in of electricity from distributed generation, reimbursement of fees saved as to system access to upstream network levels also shall be provided for.

§ 25 Derogations to Access to Gas Supply Systems in Relation to Take-or-Pay Obligations
The granting of access to gas supply systems within the meaning of § 20 subsec. (2) is not reasonable particularly when a gas supply undertaking would encounter serious economic and financial difficulties based on take-or-pay obligations in the context of gas supply contracts. Upon application of the gas supply undertaking concerned, the Regulatory Authority shall decide whether the prerequisites set forth in sentence 1 to be proven by the applicant are fulfilled. The evaluation shall comply with Article 27 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ L 176 p. 57). The Federal Ministry of Economics and Labour shall have the power to establish by ordinance not requiring the approval of the Bundesrat, the procedural rules that are to be applied in the evaluation pursuant to Article 27 of Directive 2003/55/EC. The ordinance pursuant to sentence 4 may provide that a decision by the Regulatory Authority may be made even in deviation from the provisions of this Act to the extent it has been provided for in a decision of the Commission of the European Communities.

§ 26 Access to Upstream Pipeline Systems and to Storage Facilities in the Area of the Line-bound Supply with Natural Gas
Access to upstream pipeline systems and to storage facilities takes place in deviation from §§ 20 through 24 on a contractual basis pursuant to §§ 27 and 28.

§ 27 Access to Upstream Pipeline Systems
Operators of upstream pipeline systems shall make the upstream pipeline system available to other undertakings for third party access at conditions that are reasonable and are not less favorable than those actually or implicitly invoiced by it in comparable cases for services within its undertaking or in regard to related or associated undertakings. This does not apply to the extent the operator shows that third party access is impossible or unreasonable for operational or other reasons, taking account of the objectives of § 1. Refusal shall be substantiated in written form. Denial of system access pursuant to sentence 2 is only permissible upon the existence of one of the reasons set forth in Article 20 subsec. (2) sentence 3 (a) through (d) of Directive 2003/55/EC. The Federal Ministry of Economics and Labour shall have the power to establish by ordinance requiring the approval of the Bundesrat, the conditions for access to upstream pipeline systems and the methods for calculating the fees for access to upstream pipeline systems taking into account the objectives of § 1.

§ 28 Access to Storage Facilities
(1) Storage facility operators shall grant other undertakings access to their storage facilities and ancillary services at reasonable and non-discriminatory technical and economic conditions, insofar as access is technically or economically necessary for efficient system access in regard to supply to customers.
(2) Storage facility operators may refuse access pursuant to subsection (1) insofar as they show that access is impossible or unreasonable for them based upon operational or other reasons, taking into account the objectives of § 1. The refusal shall be substantiated in writing.
(3) Storage facility operators are obligated to publish on the Internet the location of storage facilities, information regarding available capacity, and their essential terms and conditions for access to storage. This particularly relates to the procedural treatment of requests for access to storage, the characteristics of the gas to be stored, nominal working gas capacity, and the feed-in and output storage periods to the extent necessary for an offer of a storage facility operator, as well as the minimal technically necessary volumes for feed-in and output.
(4) The Federal Ministry of Economics and Labour shall have the power to regulate by ordinance requiring the approval of the Bundesrat, the technical and economic conditions as well as the substantive structure of contracts regarding access to storage facilities.

§ 28a New Infrastructures
(1) Interconnectors between Germany and other states or LNG and storage facilities may be exempted from the application of §§ 20 to 28 for a limited period of time if:
1. the investment enhances competition in the supply of gas and enhances the security of supply;
2. it involves major new infrastructure facilities within the meaning of Article 22 subsec. (1) of Directive 2003/55/EC as to which, in particular, the risk associated with the investment is so high that the investment would not be undertaken unless such an exemption is granted;
3. the infrastructure is owned by a natural or legal person that is separate from the system operator in accordance with § 7 subsec. (1) and §§ 8 through 10 in whose systems that infrastructure will be built;
4. charges are levied on users of this infrastructure; and
5. the exemption is not detrimental to competition or the effective functioning of the internal natural gas market or the efficient functioning of the regulated system to which the infrastructure is connected.
(2) Subsection (1) also applies to increases of capacity in existing infrastructures that are significant from an objective perspective, especially in regard to their investment volume and the additional capacity volume, and to modifications to such structures that enable the development of new sources of gas supply.
(3) Upon application of the gas supply undertaking concerned, the Regulatory Authority shall decide whether the prerequisites pursuant to subsection (1) or (2) to be proven by the applicant are fulfilled. The examination and the proceeding shall comply with Article 22 subsec. (3) (b) through (e) and subsec. (4) of Directive 2003/55/EC. To the extent Article 22 subsec. (4) of Directive 2003/55/EC provides for participation of the Commission of the European Communities (EC participation proceeding), the Regulatory Authority shall initiate the proceeding. The Regulatory Authority shall amend or revoke a decision regarding an application pursuant to subsection (1) in accordance with a final decision of the Commission pursuant to Article 22 subsec. (4) in conjunction with Article 30 subsec. (2) of Directive 2003/5/EC; §§ 48 and 49 of the Administrative Proceedings Act shall remain unaffected.
(4) Decisions shall be published by the Regulatory Authority on its Internet website.

Section 4
Powers of the Regulatory Authority, Penalties

§ 29 Proceedings for Establishment and Approval
(1) The Regulatory Authority shall make decisions regarding the conditions and methods for system connection or system access pursuant to the ordinances referred to in § 17 subsec. (3), § 21a subsec. (6), and § 24 by establishment in regard to one system operator, a group of such, or all system operators, or through approval in regard to an applicant.
(2) The Regulatory Authority is authorized to subsequently amend conditions and methods established or approved by it pursuant to subsec. (1) to the extent this is necessary to ensure that they continue to fulfill the prerequisites for establishment or approval. §§ 48 and 49 of the Administrative Proceedings Act shall remain unaffected.
(3) The federal government may define in further detail the proceedings for establishment or approval pursuant to subsection (1) and the proceedings for amending the conditions and methods pursuant to subsection (2) by ordinance requiring the approval of the Bundesrat. In so doing, it may especially provide that decisions by the Regulatory Authority be made in agreement with the Federal Cartel Office.

§ 30 Anti-Competitive Conduct by a System Operator
(1) Operators of energy supply systems are forbidden from abusing their market position. Abuse particularly exists when an operator of an energy supply system:
1. does not adhere to provisions in Parts 2 and 3 or any ordinances enacted based on these provisions;
2. directly or indirectly unjustly obstructs other undertakings or significantly impairs their competitive opportunities without an objectively justified basis;
3. directly or indirectly treats some undertakings differently than other similar undertakings without an objectively justified basis;
4. grants access to its goods or services that are used internally or offered on the market to itself or to a related undertaking within the meaning of § 3 no. 38 at more favorable conditions or fees than given to other undertakings for use of the goods and services or goods or commercial services associated therewith, to the extent the operator of the energy supply system does not prove that the granting of less favorable conditions is objectively justified;
5. without objective justification demands fees or other terms and conditions for system access that deviate from those that would likely be used with effective competition; in this connection the behavior of undertakings on comparable markets and the results of Comparative Proceedings pursuant to § 21 shall particularly be taken into account; fees that do not exceed the upper limit of an approval granted to a concerned undertaking pursuant to § 23a and, in the event of the implementation of Incentive Regulation pursuant to § 21a fees that do not exceed the upper limits provided as to a regulation period for a concerned undertaking, are considered to be objectively justified; or
6. demands less favorable fees or other terms and conditions than it demands for itself on comparable markets from the same type of customers, except if the difference is objectively justified.
Sentence 2 no. 5 also applies to systems that deviate from the principle of cost-reflection pursuant to an ordinance in accordance with § 24 sentence 2 no. 5. Special legal provisions regarding abuse of market position in such systems shall remain unaffected.
(2) The Regulatory Authority may obligate an operator of an energy supply system that abuses its position to discontinue violations of subsection (1). It may impose all measures on the undertaking that are necessary to effectively stop the violation. It particular, it may:
1. require changes to the extent the fees developed or their application, as well as the application of the conditions for connection to the network and the grant of system access, deviates from the approved or established methods or the statutory provisions existing for this; or
2. in cases of illegal refusals of system connection or system access, order system connection or system access.

§ 31 Special Proceedings by the Regulatory Authority Regarding Abuse
(1) Persons and associations whose interests are significantly affected by the behavior of an operator of an energy supply system may submit an application for inspection of the behavior to the Regulatory Authority. It shall inspect the extent to which the energy supply system operator’s behavior comports with the guidelines in the provisions in Parts 2 and 3 or the ordinances enacted on the basis of these, as well as in accordance with the conditions and methods established or approved pursuant to § 29 subsec. (1). Insofar as the behavior of the energy supply system operator is approved, the Regulatory Authority shall also inspect whether the prerequisites for revocation of the approval exist. Interests of the consumer centers and other consumer organizations that are supported by public funds are also significantly affected within the meaning of sentence 1 when the decision affects numerous consumers and, thus, consumer interests are overall significantly affected.
(2) In addition to the name, address, and signature of the applicant, an application pursuant to subsection (1) also requires the following information:
1. company and headquarters of the system operator concerned;
2. the behavior of the system operator concerned that is to be inspected;
3. the grounds, to be set forth in detail, based upon which there is serious doubt about the lawfulness of the behavior of the system operator; and
4. the grounds, to be set forth in detail, based upon which the applicant is affected by the behavior of the system operator.
To the extent an application does not fulfill the requirements of sentence 1, the Regulatory Authority shall reject the application as inadmissible.
(3) The Regulatory Authority shall decide within a deadline of two months from receipt of the complete application. This deadline may be extended for two months when the Regulatory Authority requests additional information. An additional extension of this deadline is possible with the agreement of the applicant. If an application pursuant to sentence 1 relates to fees for the connection of major new generation facilities, the Regulatory Authority may extend the deadlines pursuant to sentences 1 and 2.
(4) Insofar as a proceeding is not concluded by a decision served on the participants pursuant to § 73 subsec. (1), the parties shall be notified of its termination in writing or electronically. The Regulatory Authority may impose costs for the taking of evidence on the participants within its reasonable discretion.

§ 32 Claim for Injunctive Relief, Liability for Damages
(1) Whoever violates a provision in Parts 2 or 3, an ordinance enacted pursuant to the provisions in these Parts, or a decision of the Regulatory Authority made based upon these provisions, is obligated to remove an impairment and to refrain from such action upon a danger of recurrence. The claim arises even in the event of a threatened violation. The provisions in Parts 2 and 3 also serve to protect other market participants even if the violation is not specifically aimed at them. A claim is not excluded because another market participant played a role in the violation.
(2) Claims arising from subsection (1) may also be asserted by associations having legal capacity the purpose of which is the promotion of commercial or independent professional interests, where a considerable number of undertakings belong thereto that distribute goods or services of the same or similar type on the same market, if such associations are actually in a position, according to their personnel, organizational, and financial resources, to promote commercial or independent professional interests within the meaning of their statutes, and where the violation affects the interests of their members.
(3) Whoever intentionally or negligently commits a violation pursuant to subsection (1) shall be obligated to compensate the damages arising therefrom. The undertaking shall pay interest on monetary debts pursuant to sentence 1 from the occurrence of the damage. §§ 288 and 289 sentence 1 of the German Civil Code shall apply mutatis mutandis.
(4) If a claim for damages is asserted based upon a violation of a provision in Parts 2 or 3, the court is bound to the finding of violation as set forth in a final decision by the Regulatory Authority. The same applies to findings in final court decisions that are rendered based upon an appeal of a decision in accordance with sentence 1.
(5) The statute of limitations on damage compensation claims pursuant to subsection (3) is stayed when the Regulatory Authority initiates a proceeding based upon a violation within the meaning of subsection (1). § 204 subsec. (2) of the German Civil Code shall apply mutatis mutandis.

§ 33 Disgorgement of Benefits Through Regulatory Authority
(1) If an undertaking intentionally or negligently violates a provision in Parts 2 or 3, an ordinance enacted pursuant to the provisions in these Parts, or a decision of the Regulatory Authority made based upon these provisions and thereby acquires an economic benefit, the Regulatory Authority may order the disgorgement of the economic benefits and impose payment of a corresponding money amount on the undertaking.
(2) Subsection (1) does not apply to the extent economic benefits are disgorged by damage compensation payments or by the imposition of fines or an order of forfeiture. Insofar as the undertaking first makes payments in accordance with sentence 1 after the disgorgement of benefits, the money amount paid shall be reimbursed to the undertaking in the amount of proven payments.
(3) If implementation of the disgorgement of benefits would result in undue hardship, the order shall be limited to a reasonable sum or shall not be made. It also should not be made if the economic benefit is minimal.
(4) The amount of the economic benefit may be estimated. The sum to be paid shall be determined numerically.
(5) The disgorgement of benefits can only be ordered within a deadline of up to five years from the termination of the violation and at most for a time period of five years.

§ 34 (repealed)

§ 35 Monitoring
(1) In performance of its duties pursuant to this Act, the Regulatory Authority shall conduct monitoring, particularly regarding the establishment of market transparency, of:
1. the rules for the management and allocation of interconnection capacity; this shall take place in agreement with the Regulatory Authority or the regulatory authorities of the Member States with which there is interconnection;
2. mechanisms for the removal of capacity congestion in the national electricity and gas supply systems;
3. the time needed by operators of transmission, gas transmission, and distribution systems for the establishment of connections and repairs;
4. publishing reasonable information regarding interconnectors, system use, and capacity allocation for interested parties by operators of transmission, gas transmission, and distribution systems, taking into account the necessity of treating individual data that is not statistically available as business secrets;
5. actual unbundling of accounts in accordance with § 10 to prevent cross-subsidization among generation, transmission, distribution, and supply activities or gas transmission, distribution, storage, LNG and supply activities;
6. conditions and tariffs for the interconnection of new electricity generators particularly taking into consideration the costs and benefits of the various technologies for the production of electricity from renewable energy sources, distributed generation, and combined heat and power;
7. conditions for access to storage facilities pursuant to §§ 26 and 28, as well as system access conditions for facilities for the production of biogas;
8. the extent to which operators of transmission, gas transmission, and distribution systems fulfill their duties pursuant to §§ 11 through 16;
9. the fulfillment of obligations pursuant to § 42;
10. the extent of transparency and competition;
11. competitive development within the systems for electricity and gas from the perspective of household customers and possible counter-measures in the event of improper developments;
12. national uniform minimum standards for measuring facilities, as well as the scope and quality of data pursuant to § 21b subsec. (2) sentence 5 no. 2.
(2) The powers pursuant to § 69 shall apply mutatis mutandis to the implementation of monitoring.