Abstract

Issues of Legal Protection against Regulatory Measures

On the one hand, German regulation is marked by special developments that pertain to individual sectors of regulation. These separate and specific developments of regulation law focus mainly on the energy sector, e.g. requirements planning for the upgrade of transmission networks (§§ 12a ff. EnWG) and the possibility for measures concerning generating plants, as far as they are necessary in order to ensure network stability (§§ 13ff. EnWG). On the other hand, ten years after the competence for the four classic network industries (energy, telecommunication, post, railways) was centralised by the Federal Network Agency (“Bundesnetzagentur”), the similarities of the regulated sectors can be better assessed. Compared to the high expectations that aimed at a harmonisation of the regulation system, these experiences may be sobering. However, the elements spanning the particular sectors are of such importance that it is worthwhile to analyse and develop them. This will lead to a sharper understanding of regulation as a modern administrative function.

Issues of legal protection play a vital role in this development. With regulatory discretion having been accepted by both the Federal Constitutional Court concerning telecommunication and the Federal Court of Justice for the energy sector, the now arguably most important topic spanning the different regulated sectors is the classification of discretionary powers of regulatory authorities. The first court cases concerning the new regulatory powers in the energy sector are already pending. The courts will have to develop, without being able to rely on similar cases, appropriate rules in a sensitive area.