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26.4.2012 Official
Journal
of
the
European
Union L
114/21
COMMISSION IMPLEMENTING DECISION
of 24 April 2012
exempting the production and wholesale of electricity produced from conventional sources in
Germany from the application of Directive 2004/17/EC of the European Parliament and of the
Council coordinating the procurement procedures of entities operating in the water, energy,
transport and postal services sectors
(notified under document C(2012) 2426)
(Only the German text is authentic)
(Text with EEA relevance)
(2012/218/EU)
THE EUROPEAN COMMISSION,
to the procedure is directly exposed to competition. The
Opinion is based on a large sectorial survey of the
Having regard to the Treaty on the Functioning of the European
relevant markets.
Union,
II. LEGAL FRAMEWORK
Having regard to Directive 2004/17/EC of the European
Parliament and of the Council of 31 March 2004 coordinating
(4) Article
30
of
Directive
2004/17/EC
provides
that
the procurement procedures of entities operating in the water,
contracts intended to enable the performance of one of
energy, transport and postal services sectors (
the activities to which the Directive applies shall not be

1 ), and in particular
Article 30(5) and (6) thereof,
subject to the Directive if, in the Member State in which
it is carried out, the activity is directly exposed to
competition on markets to which access is not restricted.
Having regard to the request submitted by Bundesverband der
Direct exposure to competition is assessed on the basis
Energie- und Wasserwirtschaft e.V. (Federal Association of the
of objective criteria, taking account of the specific char
Energy and Water Industry) (hereinafter referred to as BDEW)
acteristics of the sector concerned. Access is deemed to
by e-mail of 26 October 2011,
be unrestricted if the Member State has implemented and
applied the relevant Community legislation opening a
Whereas:
given sector or a part of it. This legislation is listed in
Annex XI to Directive 2004/17/EC, which, for the elec
tricity sector, refers to Directive 96/92/EC of the
I. FACTS
European Parliament and of the Council of 19 December
1996 concerning common rules for the internal market
(1) On
26
October
2011,
BDEW
transmitted
a
request
in electricity (
pursuant to Article 30(5) of Directive 2004/17/EC to

3 ). Directive 96/92/EC has been superseded
by Directive 2003/54/EC of the European Parliament and
the Commission by e-mail. The Commission informed
of the Council of 26 June 2003 concerning common
the German authorities about the request on
rules for the internal market in electricity and repealing
11 November 2011 and also requested additional
Directive 96/92/EC (
information of the German authorities by e-mail of

4 ) which was also replaced by
Directive 2009/72/EC of the European Parliament and
10 January 2012, and of BDEW by e-mail of
of the Council of 13 July 2009 concerning common
21 December 2011. Additional information was trans
rules for the internal market in electricity and repealing
mitted by the German authorities by e-mail of
Directive 2003/54/EC (
14 December 2011 and by BDEW on 17 January

5 ).
2012 on 26 January 2012 and on 28 February 2012.
(5) Germany
has
implemented
and
applied
not
only
(2) The
request
submitted
by
BDEW
on
behalf
of
contracting
Directive 96/92/EC but also Directives 2003/54/EC and
entities in the sector concerns, as described in the
2009/72/EC. Consequently, and in accordance with the
request, ‘the construction, the purchase and the
first subparagraph of Article 30(3), access to the market
operation (including maintenance) of all types of elec
should be deemed not to be restricted on the entire
tricity generation plants, as well as the relevant support
territory of Germany.
activities’ ( 2 ).
(6)
Direct exposure to competition should be evaluated on
(3)
The request is accompanied by an opinion of the Federal
the basis of various indicators, none of which are, necess
Cartel Office (Bundeskartellamt) dated 25 July 2011. This
arily, per se, decisive. In respect of the markets concerned
opinion (hereinafter referred to as the ‘Opinion’) was
by this Decision, the market share of the main players on
issued on the basis of relevant German legislation, and
a given market constitutes one criterion which should be
addresses the question as to whether the activity subject
taken into account. Another criterion is the degree of
( 1 ) OJ L 134, 30.4.2004, p. 1.
( 3 ) OJ L 27, 30.1.1997, p. 20.
( 2 ) The exemption request is intended to cover also activities linked to
( 4 ) OJ L 176, 15.7.2003, p. 37.
electricity generation, such as combined heat and power stations.
( 5 ) OJ L 211, 14.8.2009, p. 55.

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L 114/22
EN
Official Journal of the European Union
26.4.2012
concentration on those markets. Given the characteristics
electricity generated from renewable energy sources ( 3 ),
of the markets concerned, further criteria should also be
which, in addition to the electricity generated through
taken into account such as the functioning of the
conventional sources ( 4 ), is playing an increasing role in
balancing market, price competition and the degree of
the German market. According to the amended EEG
customer switching.
which entered into force at the beginning of 2012, the
share of renewable energy sources in the electricity
supply shall increase to 35 % by 2020, to 50 % by
(7)
This Decision is without prejudice to the application of
2030 and to 80 % by 2050.
the rules on competition.
III. ASSESSMENT
(11) At
the
end
of
2010,
160,5
GW
generating
capacity
was
connected to the networks of the Transmission System
(8) The
German
market
of
electricity
is
characterised
by
a
Operators (TSOs) (77,6 GW) and Distribution System
large number of power plants which are operated by a
Operators (DSOs) (82,9
GW). Compared to 2009
big number of market players ( 1 ). The majority of
(152,7 GW), this represents an increase of approximately
production capacity belongs to four large energy
7,8 GW. Renewables account for 54,2 GW of the total
companies: RWE AG, E.ON AG, EnBW AG and
capacity. Some 50,7 GW of the renewables are paid for
Vattenfall Europe AG. However, as two of these
in accordance with EEG tariffs. This means that
companies, namely RWE and E.ON are private
renewables represent approximately 34 % of overall capa
companies (i.e. companies not subject to the direct or
city (
indirect dominant influence of contracting authorities

5 ).
as provided for under Article 2(1)(b) of Directive
2004/17/EC), which do not operate in the electricity
generation sector on the basis of special or exclusive
rights within the meaning of Article 2(3) of Directive
(12) In
terms
of
feed-in,
in
2010,
a
total
of
531,2
TWh
was
2004/17/EC, they are not contracting entities in the
fed into the TSO (367,5 TWh) and DSO (163,7 TWh)
sense of the Directive 2004/17/EC. Their procurement
systems. The volume fed in from renewable sources
for the purpose of producing or selling electricity is
was 93,7 TWh, of which 80,7 TWh were remunerated
therefore not subject to the provisions of this Directive;
in accordance with the EEG. This means that feed-in
consequently, in respect of these activities, they should be
from renewables represents approximately 18 % of the
considered as competitors of the contracting entities
total feed-in volume, a proportion that therefore lies
whose procurement is subject to this Directive. The
below the 34 % of total generation capacity accounted
analysis will therefore in the following focus on the
for by these sources ( 6 ). The difference is due to the fact
contracting entities when examining whether the
that the period of utilisation of renewable sources per
activity is exposed to competition in markets to which
year is lower than that of conventional sources.
access is not restricted.
(9) Electricity
is
marketed
at
wholesale
level
via
the (13) Another
feature
of
the
German
electricity
market
relates
exchanges, i.e. the spot and forward markets of the
to the recent decision of the national authorities to close
European Energy Exchange AG (EEX) and the European
eight nuclear power plants, with a total capacity of
Power Exchange S.E. (EPEX), or in over-the-counter trans
8 400 MW ( 7 ), following the nuclear catastrophe in
actions outside the exchanges. The price on the power
Japan, at the beginning of 2011. Moreover, it was
exchanges usually serves as a reference price for trans
decided to close the rest of the nuclear power plants in
actions over the counter. The production companies
Germany by 2022. On the short term this changed the
optimise operation of their power stations in line with
balance between imports and exports, so that, from a net
the results of the spot market trade on the exchanges. In
exporter of electricity until 2010, Germany became a net
principle, only those power stations are operated whose
importer in 2011.
marginal costs are below the market price.
( 3 ) Within the meaning of EEG, and under the conditions set out
therein, ‘renewable energy sources’ means hydropower, including
(10) The Gesetz für den Vorrang Erneuerbarer Energien ( 2 ) (here
wave power, tidal power, salt gradient and flow energy, wind
inafter referred to as EEG) sets out the rules for the
energy, solar radiation, geothermal energy, energy from biomass,
including biogas, biomethane, landfill gas and sewage treatment
gas, as well as the biodegradable fraction of municipal waste and
( 1 ) According to Eurostat data on Environment and Energy of 11/2010,
industrial waste.
in 2008 there were reported more than 450 electricity generator
( 4 ) Within the meaning of this Decision electricity generated from
companies in Germany representing at least 95 % of the net elec
conventional sources, and conventional electricity, means electricity
tricity generation.
which does not fall within the scope of the EEG.
( 2 ) EEG regulates: priority connection to the grid systems for general
( 5 ) According to the ‘Monitoring Benchmark Report 2011’ by Bundes
electricity supply of installations generating electricity from
netzagentur für Elektrizitt, Gas, Telekommunikation, Post und Eisen
renewable energy sources and from mine gas; priority purchase,
bahnen (EN translation), p. 9.
transmission, distribution of and payment for such electricity by
( 6 ) According to the ‘Monitoring Benchmark Report 2011’ by Bundes
the grid system operators, also in relation to electricity from
netzagentur für Elektrizitt, Gas, Telekommunikation, Post und Eisen
combined heat and power (CHP) generation, and including
bahnen (EN translation), p. 10.
premiums for integrating this electricity in the electricity supply
( 7 ) According to the ‘Monitoring Benchmark Report 2011’ by Bundes
system; and the nationwide equalisation scheme for the quantity
netzagentur für Elektrizitt, Gas, Telekommunikation, Post und Eisen
of electricity purchased for which a tariff or premium has been paid.
bahnen (EN translation).

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EN
26.4.2012 Official
Journal
of
the
European
Union L
114/23
Market definition
tariff payment under the EEG on the first day of the
month. Depending on the market price forecast and
Product market definition
depending on demand, EEG installation operators can
thus decide each month, which form of selling is best
(14) According
to
Commission
precedents
( 1 ), the following
for them. However, this direct marketing will in the
relevant product markets could be distinguished in the
future only be of marginal importance.
electricity sector: (i) generation and wholesale supply; (ii)
transmission; (iii) distribution; and (iv) retail supply.
While some of these markets may be further subdivided,
to date previous Commission practice ( 2 ) rejected a
(20) According
to
the
amended
EEG
which
entered
into
force
distinction between an electricity generation market and
at the beginning of 2012, EEG installation operators have
a wholesale supply market since generation as such is
— as indicated above — the option of marketing the
only a first step in the value chain, but electricity
electricity they produce themselves and receive a
volumes generated are marketed via the wholesale
marketing premium as well. The marketing premium is
market.
to replace the difference between the fixed EEG remun
eration and the monthly average price on the exchange
determined ex post. The taking-up of the marketing
(15) The
request
by
BDEW
pertains
to
electricity
generation
premium is however optional, i.e. EEG installation
and wholesale. The Federal Cartel Office in its Opinion
operators can remain in the fixed remuneration system
defines the product market as ‘a primary sales market for
or return to it any month. The largest share of EEG
electricity’ ( 3 ), which covers initial sales of all electricity
electricity is, however, expected to be marketed via the
suppliers of their own production and the net imports of
transmission grid operators. Moreover, the market
electricity, but do not include subsequent trading
premium model will not alter the fact that the total
between market participants. Moreover, the Federal
remuneration level for EEG producers is not primarily
Cartel Office considers that the production and
determined by market prices ( 5 ).
marketing of electricity regulated under EEG (hereinafter
referred to as ‘EEG electricity’) is not part of this market.
(21) The
Federal
Cartel
Office
acknowledges
therefore
that,
(16) The
Federal
Cartel
Office
considers
that
the
market
for
while EEG electricity exerts a competitive pressure on
EEG electricity represents a separate market as far as its
the electricity produced from conventional sources, the
first sale is concerned. The EEG electricity is normally not
reverse is not true; therefore, EEG electricity cannot be
directly sold on the wholesale market but first bought by
included in the same market as the conventional elec
the transmission grid operators for a statutory rate of
tricity as the market conditions which prevail for the first
remuneration. They then sell it in a second step on the
sale significantly differ between these two generation
wholesale market.
forms. The first sale of EEG electricity, moreover,
mostly takes place via the transmission grid operators.
The market therefore evidently differs also from a
demand-side perspective from the wholesale market for
(17) The
Federal
Cartel
Office
concludes
that
the
production
conventional electricity.
and marketing of EEG electricity is not organised on a

competitive basis and that the EEG electricity is inde
pendent of demand and price indicators
( 4 ). This
conclusion is notably based on the following facts:
(22) Taking into account the specificity of the German elec
tricity market, for the purposes of evaluating the
conditions laid down in Article 30(1) of Directive
(18) The
EEG
electricity
has
feed-in
priority;
therefore
the
2004/17/EC, and without prejudice to competition law,
production of EEG electricity is totally independent of
the relevant product market is hereby defined as the
demand. The production and feed-in is also independent
market for generation and first sale of electricity
of the prices as the operators are entitled to a statutory
produced from conventional sources. Generation and
payment. The EEG electricity is marketed by the TSOs on
first sale of EEG electricity is not part of this market,
the spot market in conformity with statutory provisions,
for the reasons set out above, and it will be hereinafter
without any scope for manoeuvre.
assessed separately.
(19) The
Federal
Cartel
Office
also
noted
that,
according
to
the law, EEG electricity may be marketed directly, and a
Geographic market definition
certain percentage of operators are using this oppor
tunity. EEG provides that EEG installation operators
(23) According to the application, the request pertains to
may switch between direct selling and receipt of the
activities on the territory of the Federal Republic of
Germany. The applicant explores the possibility of a
wider market including Germany and Austria based on
( 1 ) Case COMP/M.4110 — E.ON/ENDESA, of 25.4.2006, paragraph 10,
several trends in respect of development of the regulatory
p. 3.
( 2 ) Case COMP/M.3696 — E.ON/MOL, of 21.1.2005, paragraph 223,
Case COMP/M.5467 — RWE/ESSENT, of 23.6.2009, paragraph 23.
( 5 ) The remuneration of an individual operator may nevertheless vary
( 3 ) According to Federal Cartel Office Opinion (EN translation), p. 5.
depending on whether he will manage to market his electricity at a
( 4 ) According to Federal Cartel Office Opinion (EN translation), p. 5.
price above the monthly average price.

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L 114/24
EN
Official Journal of the European Union
26.4.2012
framework, level of electricity imports and exports and
generation, ‘one indicator for the degree of competition
market coupling and congestion management
on national markets is the total market share of the
procedures, but eventually concludes that ‘the applicant
biggest three producers’.
cannot draw a final conclusion as to whether the German
wholesale electricity market and relevant markets in
neighbouring countries are sufficiently integrated at the
moment so as to be considered a regional market’.
(29) According to the Opinion of the Federal Cartel Office ( 5 ),
the cumulative market shares of the first three producers,
in terms of feed-in electricity, was 74 % in 2007 and
73 % in 2008 and 70 % in 2010. The German electricity
(24) The
Federal
Cartel
Office,
following
the
sectorial
survey
market is therefore in the middle of the range, by
carried out, assumes that there is a common primary
comparison with previous exemptions decisions under
market for electricity in Germany and Austria. This
Article 30 of Directive 2004/17/EC ( 6 ).
conclusion is based on the absence of bottlenecks at
the border interconnectors between Germany and
Austria and the standard marketing and pricing area on
the European Power Exchange S.E. (EPEX).
(30) However, it is recalled that the first two producers RWE
and E.ON, which together have a cumulative market
share of 58 % of the market ( 7 ), are not subject to the
provisions of the procurement law.
(25) Previous
Commission
practice
mostly
defined
the
elec
tricity markets as being national in scope ( 1 ) or even
smaller ( 2 ). Occasionally, it has left open the possibility
of wider than national markets ( 3 ).
(31) The aim of the present Decision is to establish whether
the activities of generation and wholesale of electricity
are exposed to such a level of competition (on markets
to which access is free) that this will ensure that, also in
(26) The
Commission considers
that
for the
purposes
of
the absence of the discipline brought about by the
evaluating the conditions laid down in Article 30(1) of
detailed procurement rules set out in Directive
Directive 2004/17/EC, and without prejudice to the
2004/17/EC, the procurement for the pursuit of the
competition law, it is not necessary to conclude on the
activities concerned will be carried out in a transparent,
precise scope of the relevant geographic market for the
non-discriminatory manner based on criteria allowing it
generation and first sale of conventional electricity as,
to identify the solution which overall is the economically
under any alternative market definition, the results of
most advantageous one. In this context it is important to
the assessment would be the same.
keep in mind that the companies which are not subject
to the public procurement procedures (notably RWE and
E.ON) when acting on these markets have the possibility
to bring competitive pressure on the other market
(27) As
regards
production
and
first
sale
of
EEG
electricity,
its
players. This will not change even if Austria is included
geographic scope could not extend beyond the territory
into the relevant geographic market since the market
of Germany since it is based on the specific legal
shares of the first producers are expected to be only
conditions laid down in the German EEG.
slightly smaller in a market covering both Austria and
Germany ( 8 ).
Market analysis
(32) In
respect
of
production
and
wholesale
supply
of
elec
Production and first sale of electricity produced from conven
tricity from conventional sources the facts above can be
tional sources
considered to be an indication of direct exposure to
(a) Market shares and market concentration
competition of the market players which are covered
by the procurement law provisions.
(28) As it results from a constant practice ( 4 ) in respect of
Commission Decisions pursuant to Article 30, the
Commission considered that, in respect of electricity
(33) It is also worth noting that the Commission Staff
Working Paper ‘2009-2010 Report on Progress in
( 1 ) Commission Decisions 2008/585/EC (OJ L 188, 16.7.2008, p. 28,
Creating the Internal Gas and Electricity Market’ of
recital 9) and 2008/741/EC (OJ L 251, 19.9.2008, p. 35, recital 9)
and Case COMP/M.3440 — ENI/EDP/GDP, of 9.12.2004,
paragraph 23.
( 5 ) According to Federal Cartel Office Opinion (EN translation)
( 2 ) Commission Decision 2010/403/EC (OJ L 186, 20.7.2010, p. 44,
paragraph 2 of page 7.
recital 9).
( 6 ) Cumulated market shares of the first three producers in United
( 3 ) Case COMP/M.3268 — SYDKRAFT/GRANINGE, of 30.10.2003,
Kingdom (39 %), Austria (52 %) and Poland (55 %) have lower
paragraph 27 and Case COMP/M.3665 — ENEL/SLOVENSKE ELEK
values, but the corresponding values in Finland (73,6 %) and
TRARNE, of 26.4.2005, paragraph 14.
Sweden (87 %) are higher.
( 4 ) Commission Decisions 2009/47/EC (OJ L 19, 23.1.2009, p. 57);
( 7 ) The production is calculated taking into account the own power
2008/585/EC, 2008/741/EC, 2007/141/EC (OJ L 62, 1.3.2007,
stations, the shares in jointly owned power stations and the long-
p. 23), 2007/706/EC (OJ L 287, 1.11.2007, p. 18), 2006/211/EC
term output secured on a contractual basis (drawing rights).
(OJ L 76, 15.3.2006, p. 6) and 2006/422/EC (OJ L 168, 21.6.2006,
( 8 ) According to Federal Cartel Office Opinion (EN translation)
p. 33).
paragraph 3 of page 7.

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EN
26.4.2012 Official
Journal
of
the
European
Union L
114/25
June 2011 ( 1 ) indicated a decrease in the market concen
also be noted that the German balancing market ( 7 ) and
tration in Germany ( 2 ) compared to the previous years
its main characteristics (market-based pricing and price
and placed the German electricity market in the category
difference between positive and negative balancing
of ‘moderately concentrated markets’ ( 3 ), namely those
power) do not either oppose the conclusion that
markets with a Herfindahl-Hirschman Index (HHI) ( 4 ) by
contracting entities operating on the German production
capacity between 750 and 1 800.
market from conventional sources are exposed to
competition.
(34) Having
regards
to
the
above
figures,
for
the
purposes
of
this Decision and without prejudice to the competition
Production and first sale of EEG electricity
law, it can be assumed with respect to the contracting
entities that the degree of concentration of the market
(36) EEG
electricity
benefits
from
priority
connection
to
the
can be considered as an indication of a certain degree of
grid, and it has priority over conventional electricity for
exposure to competition of electricity production and
grid feed-in, which means that EEG electricity production
wholesale from conventional sources in Germany.
is independent from demand. Since EEG electricity is
generally produced at costs which are higher than the
market price, a system was established by which EEG
electricity receives particular support. EEG installation
operators ( 8 ) have the right to receive a statutory rate
of remuneration from the transmission grid operators
for a period of 20 years plus the commissioning year.
(b) Other factors
This remuneration provides for a coverage of their costs
and is therefore higher than the market price. They can
(35) In
the
last
years,
actually
until
March
2011,
Germany
therefore feed the electricity they produce into the grid
was a net exporter of electricity. However, due to the
irrespective of the price on the exchanges (
decision to phase out production of electricity by

9 ).
several nuclear plants, Germany became a net importer.
There is therefore currently a competitive pressure on the
market deriving from the potential to import electricity
from outside Germany. This ensures that investment in
the electricity sector in Germany cannot be made without
taking into account other producers in the surrounding
(37) EEG
electricity
is generally
not directly
sold on the
countries. These factors should therefore be seen as not
wholesale market but first bought by the transmission
opposing the conclusion that contracting entities
grid operators for a statutory rate of remuneration. The
operating on the German production market from
transmission system operators are responsible for
conventional sources are exposed to competition.
marketing the EEG electricity on the power exchange
Furthermore, an analysis of the situation in respect of
spot market which consequently causes a loss for them.
customer switching ( 5 ) and the degree of liquidity on
These costs are ultimately paid by the final electricity
the wholesale market ( 6 ) show that these factors do not
consumers who pay to their energy suppliers an extra
oppose the conclusion that contracting entities operating
EEG fee which is subsequently passed to the transmission
on the German production market from conventional
grid operators. Energy suppliers buying more than 50 %
sources are exposed to competition. Finally, it should
of EEG electricity including at least 20 % of electricity
from solar or wind pay a reduced EEG fee.
( 1 ) http://ec.europa.eu/energy/gas_electricity/legislation/doc/20100609_
internal_market_report_2009_2010.pdf
( 7 ) Even though they represent a small part of the total amount of
( 2 ) See page 7, paragraph 4 of the Commission Staff Working Paper.
electricity produced and/or consumed in a Member State, the func
( 3 ) Table 3.1 of the Technical Annex, p. 12 of the Technical Annex to
tioning of the balancing mechanisms should also be considered as
Commission Staff Working Paper ‘2009-2010 Report on Progress in
an additional indicator. This is because if there is a large difference
Creating the Internal Gas and Electricity Market’ of June 2011.
between the price at which transmission system operators provide
( 4 ) Herfindahl-Hirschmann Index: it is defined as the sum of the squares
balancing power and the price at which they buy back surplus
of the market shares of each individual firm. As such, it can range
production, this can be a problem for smaller market participants
from almost 0 to 10 000, moving from a very large amount of very
and undermine the development of competition.
small firms to a single monopolistic producer. Decreases in the HHI
( 8 ) Within the meaning of this Decision and in accordance with the
generally indicate an increase in competition, whereas increases
EEG, ‘EEG installation’ means any facility generating electricity from
imply the opposite.
renewable energy sources or from mine gas. Installations generating
( 5 ) According to Table 2.1, page 6 and Table 2.2, page 7 of the
electricity from renewable energy sources or from mine gas shall
Technical Annex to Commission Staff Working Paper ‘2009-2010
also mean all those facilities which receive energy which has been
Report on Progress in Creating the Internal Gas and Electricity
temporarily stored and originates exclusively from renewable energy
Market’ of June 2011, 2009 Germany had a customer switching
sources or from mine gas and convert it into electricity; and ‘EEG
for large industry of 10,7 % in volume and of 15,6 % by eligible
installation operator’ means anyone, irrespective of the issue of
meter point.
ownership, who uses the installation to generate electricity from
( 6 ) According to the ‘Monitoring Benchmark Report 2011’ by Bundes
renewable energy sources or from mine gas.
netzagentur für Elektrizitt, Gas, Telekommunikation, Post und Eisen
( 9 ) Remuneration rates for EEG electricity are regularly above the
bahnen, page 28, the German wholesale market is extremely liquid.
exchange price, EEG electricity is therefore more expensive than
In 2010, the volume of wholesale trade amounts to an estimated
conventionally produced electricity. These additional costs must be
10 600 TWh, which is more than 17 times the actual electricity
borne by energy consumers via the EEG levy (3,5 cents/kWh in
demand in Germany.
2011).

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L 114/26
EN
Official Journal of the European Union
26.4.2012
(38) The
EEG
installation
operators
have
also
the
possibility
to
(42) Furthermore,
since
the
condition
of
unrestricted
access
to
do ‘direct marketing’ of the electricity produced. This
the market is deemed to be met, Directive 2004/17/EC
means that an EEG plant operator can renounce to the
should not apply when contracting entities award
statutory remuneration and opt to sell the electricity
contracts intended to enable production and wholesale
directly on the spot market. Due to the high generation
supply of electricity from conventional sources to be
costs of EEG electricity, direct marketing outside of the
carried out in Germany nor when they organise design
statutory conditions is normally not a viable option. In
contests for the pursuit of such an activity in that
the past, this method has mainly been used to a limited
geographical area.
extent in instances where the buyers were able to achieve
an exemption from the extra EEG fee by combining a
certain amount of EEG electricity sourced directly from a
producer with conventional electricity ( 1 ). With the new
(43) Nevertheless, the condition of direct exposure to
EEG law which entered into force beginning of 2012, the
competition laid down in Article 30(1) of Directive
possibility for this specific exemption was limited which
2004/17/EC should be considered not to be met in
is expected to reduce this form of direct marketing ( 2 ).
view of the contracting entities with respect to
production and first sale of EEG electricity in Germany.
(39) The new law contains a new possibility of ‘direct
marketing’ which, however, includes the payment of a
(44) Since
the
production
and
first
sale
of
EEG
electricity
so-called ‘market premium’ to the EEG electricity
continues to be subject to the provisions of Directive
producers that covers the difference between their
2004/17/EC, it is recalled that procurement contracts
higher costs and the average market price (in the
covering several activities shall be treated in accordance
following: ‘market premium model’). Transmission
with Article 9 of Directive 2004/17/EC. This means that,
System Operators estimate selling in the market
when a contracting entity is engaged in ‘mixed’
premium model to take a share of 15 % for all types
procurement, that is procurement used to support the
of renewable energies together in 2012 ( 3 ). It can be
performance of both, activities exempted from the appli
concluded that at present and in the near future, the
cation of Directive 2004/17/EC and activities not
by far largest part of EEG electricity is marketed in the
exempted, regard shall be had to the activities for
regime of statutory payments and via the transmission
which the contract is principally intended. In the event
grid operators. Unsubsidised direct marketing will only
of such mixed procurement, where the purpose is prin
play a marginal role.
cipally to support the production and wholesale of EEG
electricity, the provision of Directive 2004/17/EC shall
apply. If it is objectively impossible to determine for
which activity the contract is principally intended, the
(40) For the reasons indicated above the generation and first
contract shall be awarded in accordance with the rules
sale of EEG electricity form part of a regulated system in
referred to in paragraphs 2 and 3 of Article 9 of
which producers are remunerated on the basis of a
Directive 2004/17/EC. This Decision is based on the
statutory payment. They are not exposed to competition
legal and factual situation as of October 2011 to
since they can feed in their EEG electricity regardless of
February 2012 as it appears from the information
the prevailing market price. Due to the feed-in priority
submitted by BDEW and the German authorities. It
they can also sell all the quantities they produce. It
may be revised, should significant changes in the legal
cannot be therefore concluded that the activity of
or factual situation mean that the conditions for the
producers of EEG electricity is exposed to competition.
applicability of Article 30(1) of Directive 2004/17/EC
In view of the above, no other indicators, such as those
in respect of production and wholesale supply of elec
listed in recital 6, need to be assessed.
tricity from conventional sources are no longer met.
IV.
(45) The
measures provided for in this Decision are in
CONCLUSIONS
accordance with the opinion of the Advisory
(41) In view of the factors examined above, the condition of
Committee for Public Contracts,
direct exposure to competition laid down in Article 30(1)
of Directive 2004/17/EC should be considered to be met
in view of the contracting entities with respect of
production and wholesale supply of electricity from
HAS ADOPTED THIS DECISION:
conventional sources in Germany.
( 1 ) This phenomenon has been sometimes referred to as ‘Grünstrom
privileg’.
Article 1
( 2 ) The Transmission System Operators estimate the share of such direct
marketing (§33b EEG (2012)) at 3,7 % in 2012.
Directive 2004/17/EC shall not apply to contracts awarded by
See http://www.eeg-kwk.net/de/file/111115_Eckwerte_Einspeisung_
contracting entities and intended to enable production and first
final.pdf
( 3 ) See http://www.eeg-kwk.net/de/file/111115_Eckwerte_Einspeisung_
sale of electricity produced from conventional sources to be
final.pdf
carried out in Germany.

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EN
26.4.2012 Official
Journal
of
the
European
Union L
114/27
For the purposes of this Decision, electricity produced from conventional sources means electricity which
does not fall within the scope of the EEG. Moreover, within the meaning of the EEG, and under the
conditions set out therein, ‘renewable energy sources’ means hydropower, including wave power, tidal
power, salt gradient and flow energy, wind energy, solar radiation, geothermal energy, energy from
biomass, including biogas, biomethane, landfill gas and sewage treatment gas, as well as the biodegradable
fraction of municipal waste and industrial waste.
Article 2
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 24 April 2012.
For the Commission
Michel BARNIER
Member of the Commission

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