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Next Kraftwerke and Osborne Clarke sucessfully challenge mixed-price procedure before OLG Düsseldorf


Written on 23 July 2019

International legal practice Osborne Clarke has won a claim before the Düsseldorf Higher Regional Court on behalf of Next Kraftwerke against the Federal Network Agency (Bundesnetzagentur).

Next Kraftwerke operates one of the largest virtual power plants in Europe with around 6,800 plants. With the support of other market participants, Next Kraftwerke applied in 2018 for the revocation of the decisions BK6-18-019 and BK6-18-020, based on which the Federal Network Agency introduced the so-called mixed-price tender procedure for balancing energy. During the interim hearing in 2018, a three-month suspension was granted.

At the final hearing on 3 July 2019, the Court supported Next Kraftwerke’s argument and now annulled both decisions. Even though the right of appeal was admitted, the Federal Network Agency is not expected to challenge the Court’s decision before the Federal Supreme Court. This is also because the mixed-price procedure was deemed being partly responsible for the tensed power grid situation in Germany during the hot summer days in June 2019.

An Osborne Clarke team led by energy law Partner Dr Daniel Breuer advised Next Kraftwerke throughout the process.

Daniel said:”We are glad to have been able to support Next Kraftwerke in what is a very important decision for the energy sector. The court’s decision is an important milestone for VPP operators with decentralised and innovative generation and demand-side assets.”

The team also included Dr Marleen Rheker (energy law), Judith Hoffmann (litigation regulation) and Dr Sebastian Hack (competition law).

At Next Kraftwerke, the process was led by General Counsel Benjamin Göller.

Benjamin said: “The decision that we have achieved with Osborne Clarke is a welcome one for providers of cleantech solutions,. Now, decentralised producers and consumers have a better chance of participating in the balancing energy market again.”