Betriebsführungsverträge und Unbundling im Energiesektor

In the present work, the author examines the question of whether management contracts can be used in the context of the unbundling of vertically integrated energy utilities, in particular at the distribution system level. So far, the so-called “lease solution” has been favoured. The use of a management contract is rejected by the literature on the grounds that the distribution system operator is always subject to the instructions of the distribution network owner. This is a violation of the provisions of Section 7a (4) sentence 5 EnWG [energy industry law]. The author makes it clear that a contractual right to give instructions can be waived in a relevant way. Under company law, a management contract is subject to the same rules as the lease contract previously favoured by the literature. It is possible to delegate the management power of the managing body of the distribution network owner to the distribution system operator; it will find its limit if interest in the continuation of the company is affected.