Abstract

In Search of a Public Purpose

Municipal Energy Economy between Universal Service Provision and Energy Transition (Energiewende)

According to German Constitutional and Administrative law and to the law of the European Union, any economic activity taken by municipalities must be justified by a public interest. A municipality may only appear as a player in the economy if its performance is presumed to be different from the way a private enterprise would act under the given legal and factual circumstances. Liberalisation of energy markets by European Union law has deprived the municipalities of their competence for pursuing the public interest of universal service provision (Daseinsvorsorge) on this field. As the public interest in a stable, accessible and secure energy supply is taken into account by European and national regulation, it can no longer justify the engagement of public undertakings in this field. The national political goal of an exit from nuclear and fossil-fuel energy (Energiewende) cannot fill the normative gap that has emerged through the regulatory changes. Given the legal circumstances, a progressive “municipalisation” of the German energy sector will not support the Energiewende, but make it more difficult.