Unbundling (company)

Under unbundling ( English unbundling the manufacture or strengthening of independence between) in general business areas of a company or group of companies due to any legal and / or regulatory authorities understood requirements, particularly those of the (general or sectoral) competition or antitrust laws .

The term “business field” refers to the activity of the company or group of companies in question in a specific market.

Especially in the law of the so-called line-based network management (energy, rail, telecommunications), the requirements for unbundling relate primarily to the separation of the network infrastructure operation from the upstream and downstream stages of the value chain of the respective network management.

The addressees of unbundling rules are primarily vertically integrated companies with a dominant market position . In the law of the line-bound network economy, this primarily applies to the privatized former state monopoly companies that operate both as network operators and owners as well as on upstream and downstream market levels (e.g. Deutsche Bahn , Deutsche Telekom ).

purpose

The general purpose of the unbundling rules is to avoid discrimination , cross-subsidization and other distortions of competition . In the liberalized network economies in particular, unbundling is an important prerequisite for determining reasonable fees that a vertically integrated company can charge its competitors for access to the network infrastructure, as well as for tracking down hidden discrimination at the expense of (potential) competitors ( potential access providers). Unbundling requirements thus represent a regulatory instrument that supports and supplements the rules on access and fee regulation.

to form

A distinction is generally made between two forms of unbundling, the organizational separation of business units ( legal unbundling ) and the more far-reaching separation of ownership ( ownership unbundling ).

Legal unbundling / unbundling

With legal unbundling , individual business areas are separated so that information has to follow other processes, business units have to work separately from each other ( Chinese walls ) and / and the accounting has to be done separately. In concrete terms, the following forms are possible:

• legal unbundling
• organizational unbundling
• informational unbundling
• corporate law unbundling

Ownership unbundling / breaking up

With ownership unbundling , the entire ownership structures are separated. So it is z. B. a company is no longer allowed to offer a certain business, which is usually upstream or downstream of the value chain, at the same time as its core business on the market. In contrast to the separation under company law, the company is not permitted here to continue the business through legally independent subsidiaries.

Due to constitutional and, in particular, fundamental rights concerns, there are no provisions on ownership unbundling ( dismantling ) either in EU or German law. Art. 14 GG, which allows expropriation only under strict conditions for the benefit of the general public, could prevent vertically integrated network companies from being broken up.

German law

The existing German regulations for unbundling in the line-bound network economies are essentially based on the corresponding European legal requirements.

In the energy sector, the Energy Industry Act (EnWG) contains regulations on accounting, information, organizational and corporate law unbundling. In the railway sector, the General Railway Act (AEG) lays down requirements for accounting, organizational and company law unbundling. In the telecommunications sector, the Telecommunications Act (Germany) (TKG) only contains provisions on accounting unbundling.

In contrast, German antitrust law does not offer any possibility of unbundling, for example, dominant companies. Rather, it is expressly limited to subjecting such companies to the abuse control under Section 19 (3) sentence 1 GWB.

Practical examples

Germany

energy

Especially in energy law, outsourcing of network operation under ownership Sometimes viewed as problematic under constitutional law. So it is discussed whether the encroachment on the fundamental right from Article 14.1 of the Basic Law can be justified. In addition, expropriation based on Article 14.3 of the Basic Law must be adequately compensated by the state. As a rule, the full market value of the confiscated property position will be considered appropriate. The compensation payments to the electricity companies that the state would have to pay if the grids were expropriated would therefore be enormous.

This problem would take on an additional dimension if ownership unbundling of the electricity companies were made binding at European level, as is currently being discussed. In principle, legal acts of the European Community take precedence over national law, including national constitutional law and thus also fundamental rights. If, however, one assumes an encroachment on the core area of ​​Article 14.1 of the Basic Law, the question arises whether this rule of precedence should be broken from a constitutional point of view. The Federal Constitutional Court indicated this possibility in its “Maastricht” decision (BVerfGE 89, 155).

In addition, freedom of property is recognized as a fundamental right in European law, namely in Article 17 (1) of the Charter of Fundamental Rights, which is modeled on Article 14 of the Basic Law. Since the European Court of Justice (ECJ) is increasingly adopting the Charter of Fundamental Rights when concretizing the basic rights under EC law, it cannot be ruled out that the ECJ would measure the breaking up of the electricity companies against Article 17 (1) of the Charter. The question to be answered then, if applicable, is who is liable to pay compensation: the European Community (according to Article 17, Paragraph 1, Sentence 2 of the Charter) or the implementing Member States (in the case of Germany, according to Article 14, Paragraph 3 of the Basic Law) ?

The fact that the currently applicable, less intrusive unbundling requirements have only insufficiently led to the development of functioning competition speaks in favor of separating the energy networks from ownership. In addition, the social commitment of property (Article 14, Paragraph 2 of the Basic Law) with regard to the state's responsibility to guarantee a comprehensive, safe and affordable energy supply for consumers is of greater importance in the context of constitutional considerations. Because of this social obligation, the vertically integrated network operators must u. U. accept stronger interference with their property than an owner of "normal" private property.

railroad

In railway law, however, the constitutional problem described does not exist - at least in Germany - as Deutsche Bahn AG is 100% owned by the federal government, which is not a holder of fundamental rights and can therefore “expropriate” itself without any fundamental legal obligations.

Rather, legal problems result from the fact that a division of ownership between the infrastructure and transport areas of Deutsche Bahn - as far as is currently recognizable - is only to be implemented to an inadequate extent. The rail network will remain the property of the federal government, but its management will be transferred to Deutsche Bahn, which will then be materially privatized. According to the Monopolies Commission, this model is subject to competition and state aid concerns. The Monopolies Commission is in favor of entrusting a neutral infrastructure company with the administration of the network remaining with the federal government as well as the allocation of train paths and completely privatizing the transport companies of the DB Group.

telecommunications

In the telecommunications sector, ownership unbundling of the former state monopoly companies has not been discussed (at least not seriously). This is likely to be largely due to the fact that the regulation of network access by competitors in this sector is more stringent and that service competition is more developed than in the other two network economies mentioned. In addition, the technical and economic hurdles for setting up alternative network structures in the telecommunications sector are lower than in the railways and energy sectors. There is therefore currently no urgent need to separate the network infrastructures of Deutsche Telekom AG under ownership law.

Austria

railroad

With the establishment of ÖBB Infrastruktur AG as a subsidiary of ÖBB-Holding AG, a step was taken in Austria towards unbundling the operation of the railway network and rail operations. Together with the liberalization of the rail sector, this made it possible for private entrepreneurs to offer rail transport services. For example, the Vienna-Salzburg passenger route is operated by ÖBB Personenverkehrs AG and WESTbahn Management GmbH.

literature

• Carsten E. Beisheim, Helmut Edelmann (eds.): Unbundling - Scope for action and options for the unbundling of EVU , VWEW Energieverlag GmbH 2006, ISBN 3-8022-0855-2 , ISBN 978-3-8022-0855-3
• Jürgen Baur, Kai Pritzsche, Steffen Simon (eds.): Unbundling in the energy industry - A practical handbook , Carl Heymanns Verlag 2006, ISBN 3-452-26043-7 , ISBN 978-3-452-26043-7
• PricewaterhouseCoopers (ed.): Unbundling and regulation in the German energy industry. Practical manual for the Energy Industry Act. Haufe, 2007, ISBN 978-3-448-08025-4
• Michael Pießkalla: The Commission's proposals for “full ownership unbundling” of the electricity and gas supply market in the light of the ownership neutrality of the EC Treaty (Art. 295 EC). In: European Journal for Business Law (EuZW). Munich 2008, pp. 199–204.
• Stefan Storr : The EU Commission's proposals to tighten unbundling regulations in the energy sector. In: European Journal for Business Law (EuZW). Munich 2007, pp. 232-237.

Web links

• Unbundling . In: Gabler Wirtschaftslexikon .

Individual evidence

1. ↑ See BT-Drucks. 15/3640 p. 33 (PDF; 799 kB) "In the area of ​​behavior control, however, it must be taken into account that competition law does not disapprove of a dominant or strong market position as such, but only the abuse of such a market position . "