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The Higher Regional Court (OLG) of Frankfurt am Main ruled in its decision of 29.11.2022 (Ref.: 11 U 110/18 (Kart)) that an energy supply company that does not operate a customer facility but an energy supply network (consisting of a transformer station and low-voltage lines with branches) has no claim under Section 46 (1) sentence 1 EnWG to conclude a simple rights of way agreement with the municipality. In the context of the examination of whether an abuse of a dominant position by a company pursuant to Section 19 (2) GWB exists, the evaluations of Sections 1, 46 (1), 2 EnWG must be observed. Pursuant to § 46 para. 1 EnWG, the municipalities have to make their public transport routes available for the laying and operation of lines for the direct supply of final consumers in the municipal area on a non-discriminatory basis by contract. The three pipelines in dispute serve to supply more than 250 households, which are distributed over several individual …

In its judgement of 16 September 2022, published on 7 November 2022, the Federal Supreme Court (BGH) ruled that if, in a condominium complex with different equipment for recording consumption, the proportional consumption of one or more user group(s) has not been pre-recorded with a separate heat meter, contrary to § 5 (2) sentence 1 of the Heating Costs Ordinance (HeizkostenV aF), the billing of heating costs is generally in accordance with proper administration if the consumption is determined by way of a mathematically correct calculation of the difference, taking into account the determined consumption data. It was not possible for the V. Civil Senate to make its own decision on the merits of the case because further findings by the Court of Appeal were required (§ 563 para. 3 ZPO). In the course of this, the case was referred back to the Düsseldorf Regional Court for a new hearing and decision, including on the costs of the appeal proceedings. BGH,…

In its ruling of 30 June 2022, published on 27 October 2022, the IV Senate of the BFH, abandoning the legal opinion expressed in its ruling of 12 April 2018, IV R 5/15, BFHE 261, 157, BStBl II 2020, 118, marginal no. 34 et seq. on section 15(3) no. 1 EStG old version. The Federal Tax Court (Bundesfinanzhof, BFH) ruled, in accordance with the interpretation of the law advocated by the Federal Tax Court, that losses from a commercial activity (in the case in question, losses from the operation of a photovoltaic system) do not preclude a reclassification of the otherwise asset-managing activity of a GbR if the so-called de minimis threshold is exceeded. The lateral effect of § 15, para. 3, no. 1, sentence 1, alternative 1 and sentence 2, alternative 1 EStG in the version of the WElektroMobFördG (EStG n.F.) is not to be restricted for mixed-activity asset-managing partnerships to a greater extent than has been the case to date for mixed-activity self-employe…

The Federal Ministry of Finance (Bundesministerium der Finanzen, BMF) responded to this request in a comprehensive letter dated 14 December 2008. The Federal Council has issued a statement on the tax incentives for energy efficiency measures pursuant to Section 35c of the German Income Tax Act (EStG) for buildings used for own residential purposes since 1 January 2021, and in the course of this has taken a position on the following issues in particular: beneficiary object, concept of a dwelling, person entitled to claim, use for own residential purposes, age of the object, restriction of the maximum amount of the tax reduction, object incentives, tax incentives for several objects, co-ownership of the beneficiary object, eligible expenses, exclusion from incentives, proof of the energy efficiency measure, relationship to Section 33 of the German Income Tax Act (EStG), relationship to Section 92a of the German Income Tax Act (EStG), application and procedur…

While the EEG 2017 still provided that the permits according to the BImSchG for wind farms participating in the tendering procedure had to be submitted to the Federal Network Agency two weeks before the bid date, the deadline under the EEG 2021 is now four weeks. For the bid date 1st of februray the deadline will be already expired on 4th February. The reason for these extended examination periods is the new § 28 para. 6 EEG 2021. This provision is intended to discourage the signing of tender rounds and therefore provides for a reduction in the volume of tenders in the case of a threat of signing. It is true that the bidding rounds for onshore wind turbines have been regularly signed in recent years. However, a reduction in the volume of tenders is unlikely to do justice to the timely expansion of wind energy and thus to the achievement of climate targets.

In a decision dated 9. 12. 2020, the BGH granted a tenant a temporary right of retention under Section 242 BGB for operating costs claimed by the landlord. Insofar and as long as the landlord does not allow the tenant to inspect the accounting documents contrary to § 259 para. 1 BGB, to which in addition to the invoices also the payment receipts are to be counted, the tenant can just not check the activity of the landlord. This also applies irrespective of whether the landlord accounts according to the outflow principle or according to the performance principle or whether he uses one or the other accounting method for the different types of operating costs, according to the Federal Court of Justice. An interest going beyond the general interest of the tenant in the review of the #Operating costs statement is not required here. (BGH, Dec. of 9.12.2020 - Az.: VIII ZR 118/19)