Latest news on concession awards: Hanover Regional Court – complaints are a matter for the council in Lower Saxony – no predetermination in the concession procedure
In its ruling of 19 February 2025 (Ref. 76 O 13/24), the Regional Court of Hanover specified the requirements for the proper implementation of electricity concession procedures for Lower Saxony. Among other things, the decision focuses on the question of who is authorised to decide on the (non-)redress of complaints pursuant to Section 47 of the Energy Industry Act (EnWG). The Higher Regional Court of Celle dismissed the appeals against the ruling in its decision of 15 January 2026 (Ref. 13 U 55/25).
Non-redress of complaints = part of the selection decision
In the opinion of the Regional Court, the decision not to redress complaints is not merely an administrative procedure, but a downstream part of the selection decision. It determines whether and for what reasons the previous award decision will be upheld. Consequence: Ultimate responsibility lies exclusively with the council. An independent decision by the administration not to remedy complaints is inadmissible under municipal constitutional law – even if it has been prepared by experts.
No delegation to the administration
The council decision in the case in question, according to which complaints could be decided ‘without renewed committee deliberation’, does not stand up to judicial review. The exclusive responsibility of the council for the awarding of concessions (Section 58 (1) No. 13 NKomVG) cannot be delegated. The court did not accept arguments based on practicability or efficiency.
Inadmissible predetermination by the council
In addition, the Regional Court of Hanover objected to an inadmissible predetermination: The council had signalled that it was no longer interested in subsequent reassessments of content in the complaint procedure. In doing so, it effectively relinquished its final control function. The court made it clear that a council may not ‘cut off’ its scope for assessment in advance. Every significant complaint decision requires a new, independent review.
Relevance for practice and other indications of predetermination
The decision is highly relevant for ongoing and future concession procedures: complaints and non-remedial decisions must be submitted to the council in Lower Saxony. Blanket authorisations by the administration are legally contestable. At the same time, errors in municipal constitutional law can constitute discrimination that violates antitrust law.
Overall, local authorities, especially if they participate themselves in the form of a municipal applicant, should refrain from anything that could be interpreted as inadmissible predetermination. According to the case law of the Federal Court of Justice, the requirement of personnel and organisational separation means that information may only be exchanged between the persons acting on behalf of the contracting authority and those acting on behalf of the municipal enterprise or municipal company within the framework of the procurement procedure for the right of way, so that structural measures – i.e. based on external appearances – the preferential treatment of the municipal enterprise or municipal company and the ‘bad impression’ of a lack of objectivity on the part of the contracting authority is avoided (Federal Court of Justice, judgment of 12 October 2021 – EnZR 43/20 ‘Stadt Bargtheheide’).
DFor example, the Brandenburg Higher Regional Court based its finding of a violation of the separation requirement on a political predetermination in an urban development concept in which the intention of remunicipalisation was documented (Brandenburg Higher Regional Court, judgment of 19 July 2016 – Kart U 1/15, para. 62). Other statements and actions by decision-makers in public are equally relevant. The Berlin Regional Court also relied on political statements made in public in the Berlin gas network dispute to determine a violation of the requirement of neutrality (Berlin Regional Court, judgment of 9 December 2014 – 16 O 224/14 Kart, para. 55).
Despite these strict standards and risks to the legal certainty of the proceedings, statements anticipating the outcome of the proceedings continue to be made. Recently, for example, it was reported that the decision on the contested electricity concession proceedings in Lörrach had been postponed by the council. Subsequently, on 9 January 2026, the mayor of Lörrach, Lutz, was heard on SWR4 BW (regional news) saying: ‘Because we now have to award the contract and we can only award it to the bidding consortium consisting of Stadtnetze and Badenova.’ Such statements make the concession procedure vulnerable to attack and are an indication of a predetermined decision, as criticised by the Regional Court of Hanover.
Author: Dr Mirko Sauer