Remunicipalisation

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With remunicipalisation processes in which are referred to, privatization is previously made public service tasks and assets reversed and move them back into municipal ownership.
After “sobering to bad experiences” with privatizations in Germany, especially in the 1990s and 2000s, there has since been an opposite trend towards remunicipalisation.

reasons

Decisions on privatization and remunicipalisation are made by the political bodies of the municipalities concerned . In these decision-making processes, the political considerations of the people involved and expectations in the reaction of the population are incorporated.

Since remunicipalisation is always preceded by outsourcing, individual values ​​and experiences with both forms of organization also have a significant influence on the decision-making process. In part, disappointed expectations play a role, in part because the municipalities' potential for privatization has been exhausted.

Disappointed expectations

In the 1980s and 1990s, numerous municipal institutions, businesses and companies were privatized for various reasons. It is argued that the private sector does not necessarily work better or cheaper than publicly owned companies ; a municipal company that is not allowed to generate any significant surpluses can invest higher funds in quality and infrastructure at comparable fees than a private company that has to generate profits. Municipal services of general interest and regional workplace policy can hardly be implemented as priority goals in profit-oriented companies. When outsourcing, tasks and costs remain with the municipality to a greater extent than expected . Once privatization has taken place, there is regularly no possibility of cross-subsidizing deficit municipal tasks (classic examples: local public transport and swimming pools) through the surplus of energy sales (electricity, natural gas and district heating) of the privatized municipal utilities .

Since the operation of communal infrastructure is associated with long-term concessions (10 years and longer), the private concessionaire is not exposed to any competition during this time; rather, it has a temporary monopoly . This is subject to abuse control (in the case of networks, for example, by the Federal Network Agency ).

The thesis that privatization would increase the quality of services of general interest was and is being questioned. Against the background of disappointed expectations, in July 2010 Ole von Beust (CDU), then outgoing Mayor of Hamburg, commented on the sale of Hamburgische Electricitäts-Werke AG (HEW) to the Swedish energy group Vattenfall with the words "a state monopoly " was "through a ' Quasi-monopoly has been replaced on the private side ”.

Public opinion

In several surveys, the population clearly gave priority to the execution of public tasks by the municipalities over private companies. In the municipal sector, the German Association of Towns and Municipalities no longer expects a wave of government assets to be sold due to a lack of salable municipal assets, and the financial crisis has also increased the population's distrust of privatization.

Positive regional economic effects

Remunicipalisation is expected to boost the regional economy. In the case of privatizations, on the other hand, there is the risk that profits and taxes (e.g. B. trade tax) flow from the region. In addition, location-political considerations also play a role in this context, especially the risk of company headquarters or headquarters migrating from their own region. In addition to the fiscal policy consequences mentioned, this would also result in the loss of economic competencies in a region. For example, these location and economic policy considerations were decisive for the city of Dresden to remunicipalise the energy holding company GESO.

Taxes

Tax cross-linking

The tax cross-association also allows municipal companies to use tax advantages within the framework of group structures and profit transfer and control agreements between parent companies and subsidiaries. Here, tax-permissible leeway is used in a similar way as in non-municipal companies.

After discussions about the legal admissibility of these constructions, the tax cross-association is now anchored in law. The main focus is on the possibility of offsetting losses in the fiscal cross-association for the financing of municipal areas subject to permanent losses in the context of services of general interest. By offsetting losses, the tax burden of the fiscal cross-association is reduced overall. In other words, all in all, the association pays less than if each company were assessed individually.

Since the services of municipal permanent loss companies (e.g. B. libraries , nursing homes , sports facilities , kindergartens , transport companies ) are rarely taken over by private individuals due to a lack of profitability, the principles of hidden profit distribution do not apply in this context.

value added tax

Municipal businesses and companies used to have exemption from sales tax under certain conditions (§ 2 para. 3 UstG). This was considered advantageous because, for example, VAT charges on consumers (e.g. B. for wastewater charges) were not passed on. This tax privilege has been considerably restricted by the Federal Fiscal Court and no longer applies if the public enterprise is a company governed by civil law (e.g. B. GmbH, AG).

Interventions by the Cartel Office

Interventions by the Cartel Office prevented company sales to large energy companies or only permitted them under certain conditions. In some cases, they therefore have to sell off holdings again. Some smaller municipalities are starting to set up their own companies or buy back shares in the big four .

Problems of remunicipalisation

Limits set by public procurement law

Municipalities can only award contracts to their own companies to a limited extent without tendering ; the requirements for in-house awarding without tenders have been strictly limited by the case law of the European Court of Justice (ECJ). The ECJ requires a high degree of influence by the municipality for the in-house capability. This is the case with wholly owned companies, as the municipality can exert an influence “as if it had its own office”. Orders to mixed-economy companies are always subject to the obligation to tender. In particular when it comes to the award of concessions for energy networks, the Federal Cartel Office and the Federal Network Agency argue in a joint guide that the award principles derived from the European fundamental freedoms are applicable. Accordingly, the announcement must be made in a suitable form and the award must be carried out transparently and non-discriminatively; The decision in favor of a licensee must also be justified and legal protection options must be guaranteed. The threshold for affecting intra-Community trade should be set extremely low for concessions.

Valuation when taking over concessions

Remunicipalisation often takes place as part of the award of new (network) licenses. This results from the expiry of the "old" concessions (i.e. H. the term of concession contracts is limited by law, for example, according to § 46 Energy Industry Act for the area of ​​electricity and gas networks do not last longer than 20 years). If these expire, a new license must be granted. The award procedures are then associated with a certain amount of effort and the risk of competitor lawsuits, since procedural errors can result in claims for damages. As a result of the expiry of concession contracts for the tasks of former municipal utilities, the municipalities have the option of buying back these businesses, of complete privatization, of working with the old concessionaire through joint companies or of working together with neighboring municipalities or districts in the form of a municipal utilities association.

From Section 46 of the Energy Industry Act, the old concessionaire is obliged to leave the existing electricity or gas networks to the new concessionaire. The law does not answer whether this obligation to lease results in a transfer of ownership or just a transfer of ownership (lease). This is controversial in the legal literature and at the level of the lower courts. There is no supreme court ruling on this.

The provisions on the granting of concessions contain several regulations for the municipalities that lead to an asymmetrical competitive situation. So in § 46 EnWG has not yet clearly regulated the price at which a network should be sold. The case law (e.g. B. in the Kaufering case, BGH judgment of 1999) as well as the recommendations of the Federal Cartel Office and the Federal Network Agency are now clear: Accordingly, the price to be used is not the actual value, but the often much lower income value. The wording that the network is to be left to a new RU "against payment of an economically reasonable remuneration" has often led to protracted legal disputes in the past. The old concessionaires argue that their network can only be acquired at real value. The deadline stipulated in Section 48 that the payment of the contractually agreed concession fees only lasts for one year after the lease agreement has expired is another unfair condition for the municipalities. It even happens that the old concessionaires refuse to pay the concession fees to the municipality immediately after the concession contract expires (or even threaten to do so in advance). This puts the affected municipalities under considerable financial pressure, since the income from concession fees is an important source of income for them. Another regulatory deficit concerns the publication of network-relevant data. Despite the regulation introduced in 2011 that the previous licensees must provide the necessary data in good time (...), today's EnWG does not contain any special regulation on the type and scope of this data. In many cases, this causes the old licensees to either not release the network-relevant data in good time and / or not to the necessary extent, which can then lead to further delays in the award procedure.

Development and examples of remunicipalisation policy

Remunicipalisation in the field of energy supply

A large part of the existing concession contracts for electricity and gas, estimated at around 20,000 nationwide, are currently and will expire in the coming years as a result of their limited term of 20 years; In this context, numerous municipalities are considering taking the electricity, gas and district heating supply back into their own hands. In doing so, they try to regain energy policy influence and revenue policy room for maneuver. In addition to Berlin and Hamburg, public utilities are being built in Stuttgart and Konstanz, among others, to be supplied with renewable energies. Another example of remunicipalisation is Thuringia. In May 2013, the change in the shareholder structure of Thüringer Energie , formerly a subsidiary of E.ON, was completed. It is now 46% owned by the Thuringia Municipal Energy Association (KET), an association of around 400 municipalities. The Kommunale Energie Beteiligungsgesellschaft Thüringen (KEBT), which represents around 800 municipalities, holds a further 36%.

Remunicipalisation in Berlin

One example of how to completely remunicipalise a service of general interest is the Berliner Wasserbetriebe , which has been partially privatized since 1999 (sale of a 49.9% stake in RWE and Veolia ). On February 13, 2011, there was a successful referendum on the disclosure of the partial privatization agreements at Berliner Wasserbetriebe . Proponents of the referendum saw it as a step to completely nationalize the BWB again. Subsequently, the State of Berlin acquired the shares from RWE in April 2012 for 618 million euros plus 39 million euros in ancillary costs and from Veolia in September 2013 for 590 million euros plus ancillary costs of 54 million euros.

At the same time, the Berliner Energietisch initiative is endeavoring to remunicipalise the power grid and to set up a municipal utility that follows ecological and social criteria. After a corresponding referendum had collected sufficient signatures in June 2013, a referendum was held on November 3, 2013 on the remunicipalisation of Berlin's energy supply , which, however, did not receive the necessary yes votes.

In October 2013, just a few days before the referendum, the Berlin House of Representatives decided, with the votes of the SPD and CDU, to found a municipal utility under the umbrella of Berliner Wasserbetriebe; the state of Berlin also confirmed that it would also compete as a self-contender to take over the electricity and gas network. An alternative to remunicipalisation is the attempt by the Bürgergenossenschaft Bürgerenergie Berlin (BEB), newly founded in 2012, to take over the entire Berlin power grid from the previous concession holder Vattenfall at the end of 2014. This either alone or possibly in cooperation with newly founded Berlin municipal utilities.

A referendum for the remunicipalisation of housing stocks is planned for April 2019. Initiator of the campaign expropriate German residential & Co. . As part of the referendum, this calls for the "Senate of Berlin to draw up a law for the transfer of real estate and land to common ownership for the purpose of socialization in accordance with Article 15 of the Basic Law."

Remunicipalisation in Hamburg

Privatizations and investment management

Numerous public companies have been privatized in Hamburg in the past. In the last decade in particular, these have been sold for fiscal reasons. These include the Landesbetrieb Hospitals (74.9% owned by Asklepios Kliniken since 2007 ), the municipal energy providers (HeinGas Hamburger Gaswerke GmbH ( E.ON Hanse since 2003 ), Hamburgische Electricitäts-Werke AG ( Vattenfall since 2002 )) and numerous other companies, as well as the first partial privatization through an IPO of HHLA (Hamburger Hafen und Logistik AG) in 2007.

Under the then Finance Senator Wolfgang Peiner , public companies were divided into four categories in 2001 according to their importance. In the first, the city of Hamburg wants to hold at least the majority in the company, in the fourth it wants to exit completely, with minority stakes of over or under 25% in between. There are no publicly disclosed objective criteria for this categorization. There are regular reviews of the categorizations with a view to privatization options. In each individual case, the financial aspects are weighed against the social and structural-political aspects, the weighting of which is subject to political change.

For the Hamburg GAL, among other reasons, another reason to terminate the CDU / GAL coalition in November 2010 was a Senate printed matter entitled “Categorization of Participations”, on which the last Senator for Finance, Carsten Frigge (CDU), was still working before his resignation and in the authority vote had given. Accordingly, this printed matter was about a passage according to which every ten years all municipal companies should be checked whether the city of Hamburg could part with them. In this context, there were also considerations of privatizing the municipal housing company SAGA GWG and the water supply and wastewater disposal company Hamburg Wasser .

Energy networks

From January 2015, the license holder for the power grid is the municipal power grid Hamburg GmbH . Vattenfall owned the concession for the district heating network in November 2014. Before that, the Vattenfall Group was the sole concession holder for the electricity and district heating network . In 2014, E.ON Hanse held the license for the gas supply network .

Hamburg Energie GmbH was founded in 2009 against the background that the Moorburg coal-fired power plant and the associated district heating line could not be prevented by the City of Hamburg and the ongoing conflicts between the City of Hamburg and the Vattenfall Group . The 100 percent subsidiary of the water supply and wastewater disposal company Hamburg Wasser aims to regain lost energy policy influence. The ultimate goal by 2014 is to take over the energy networks (electricity, gas, district heating) in order to convert the urban energy supply to renewable energies , in particular to move away from nuclear energy and fossil fuels . At that time the concession contracts expire or can be terminated by the City of Hamburg.

The popular initiative “Our Hamburg - Our Network” has existed since 2010, which aims to remunicipalise the energy networks and establish “real” municipal utilities , i. H. of a municipal utility with energy networks. This initiative is supported by 24 organizations, including BUND Hamburg , the Hamburg consumer center , churches and associations from the renewable energies sector. The Association of Taxpayers Hamburg eV supports this initiative and favors citizen participation via cooperative models. In a position paper, the Hamburg Chamber of Commerce speaks out against the city's participation in the energy distribution networks.

In contrast to the popular initiative, the SPD Senate of the Free and Hanseatic City of Hamburg under Olaf Scholz has set itself the goal of acquiring a minority stake in the energy networks of at least 25.1%. Opinions on the repurchase of the energy networks, initially withheld by the black-green previous senate, recommend a hundred percent, but at least remunicipalisation with the aim of a majority stake in the networks, with the argument that such measures can in principle be financed; the reports have now been published. In April 2012, the SPD majority approved the purchase of 25.1% of the shares in the networks for gas (E.on), district heating (Vattenfall) and electricity (Stromnetz Hamburg). The city pays 543.5 million euros for this and receives an annual dividend of a good four percent of the purchase price.

On September 22, 2013, the referendum took place parallel to the 2013 federal election . 50.9% of citizens were in favor of buying back all of the electricity and gas distribution networks . In January 2014, Hamburg and Vattenfall agreed to take over the power grid; the mains Hamburg GmbH is 100% owned by the Hamburger Vermögen Holding HGV assumed. Other parts of Vattenfall's company are to follow. The minimum price for Stromnetz Hamburg should be EUR 495 million. There are also additional costs for the service companies. The final price is determined by independent experts.
An agreement was also made for the district heating network. Hamburg receives a purchase option in 2019. The future purchase would either only include the network itself and have a minimum price of EUR 950 million. A second option would include the network and the power plants in Wedel and Tiefstack and will cost at least 1.15 billion euros. The final price is determined by independent experts.

In parallel to the takeover of Stromnetz Hamburg, however, the new concession for the electricity network will be awarded until the end of 2014, as the current concession for Stromnetz Hamburg is expiring. The new concession is to be awarded to the most suitable applicant by the City of Hamburg under the supervision of the Federal Network Agency and the Federal Cartel Office . In addition to Stromnetz Hamburg, the Energieetz Hamburg cooperative in conjunction with the Dutch company Alliander , E.ON Hanse and the Veolia group through its subsidiary BS Energy are applying for the new concession for the Hamburg electricity network .

On November 12, 2014, the Senate approved the conclusion of a concession agreement with Stromnetz Hamburg GmbH . The contract runs for 20 years, provides for investments in the expansion and modernization of the networks of two billion euros by the year 2024 and provides for the implementation of "a more secure, inexpensive, consumer-friendly, efficient and environmentally friendly energy supply". All of the competitors had previously withdrawn their applications.

Remunicipalisation in Stuttgart

After the Stuttgart City Council under the then Lord Mayor Wolfgang Schuster decided to sell the Stuttgart Neckarwerke in 2002 , they went to EnBW Energie Baden-Württemberg in the following year . EnBW was thus u. a. Owner of the Stuttgart water, electricity, gas and district heating supply , several power plants as well as the previously communal shares in the Lake Constance water supply . The company also became the largest landowner in Stuttgart.

In 2010, a citizens' initiative “100 Water” by the Stuttgart Water Forum was successful. The Stuttgart City Council decided on June 17, 2010 to buy back the entire water supply.

The Stuttgart municipal council also decided to set up municipal utilities in May 2011 with the declared aim of participating in the tender for concession contracts for the municipal distribution networks for gas, electricity and district heating, which EnBW (originally with its subsidiary Neckarwerke) until the end of 2013 . Stadtwerke Stuttgart was formally founded at the end of July of the same year. A more extensive referendum “Energie- & Wasserversorgung Stuttgart” by Aktion Stadtwerke , with the aim of remunicipalising the electricity, gas and district heating networks and their operation, as well as the water supply without a tender, was declared legally inadmissible by the local council in December 2012 declined.

After completing the concession award procedure on the u. a. EnBW (through multiple subsidiaries), Stadtwerke Stuttgart and a number of other bidders ( Alliander , Energieversorgung Schönau-Schwäbisch Hall, Stadtwerke Schwäbisch Hall, Thüga and Veolia ) took part, it was announced in March 2014 that Stadtwerke Stuttgart, together with EnBW subsidiary Netze BW have been awarded the tender for the concession for the electricity and gas networks for a period of 20 years; the cooperation model between the Stadtwerke and EnBW provides that the municipal utilities will become the main owner (75%) of the networks, but the EnBW subsidiary will continue to operate as network operator for five years. From 2019 the municipal utilities will then hold 75% of the ownership and operation. The acquisition of the power grid costs around 100 million euros. A decision on the award of the district heating license is still pending despite the expiry of the current license; Likewise, no decision has yet been made regarding the envisaged transfer of the water supply from EnBW to the city.

criticism

In a special report from September 2011 on the energy market in Germany, the Monopolies Commission is critical of the trend towards remunicipalisation:

“ The idea that the state has to act as an entrepreneur in the context of services of general interest is no longer valid today. On the one hand, the concept of services of general interest does not contain any conclusive delimitation of what services of general interest should include, and in this context does not make any statements about energy supply networks. On the other hand, the state can set the framework conditions in such a way that private actors also have certain requirement profiles, e.g. with regard to safety, quality and environmental effects (e. B. by setting CO 2 emission rights). "

See also

literature

Web links

Wiktionary: remunicipalisation  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Local politics and administration in times of crisis? ; Michael Haus, Sabine Kuhlmann; Springer-Verlag, 2013, ISBN 978-3-531-19160-7 , p. 150
  2. ↑ Hamburg: Beust regrets the sale of HEW to Vattenfall. In: Spiegel Online . July 12, 2010, accessed November 21, 2010 .
  3. ↑ Privatizations: “No table silver, but cutlery”. August 4, 2010, on the website of the German Association of Cities and Towns .
  4. ↑ Remunicipalisation as a stabilizer of the economy. City Innovations Review, archived from the original on February 10, 2013 ; Retrieved August 20, 2009 .
  5. ↑ City council approves the purchase of GESO-Energieholding. In: dresden.de. State capital Dresden, March 19, 2010, accessed on August 16, 2015 (press release).
  6. ↑ Gerhard Himmelstoss, Martin Entsfellner, in: Annual Report 2008, Tax Cross-Association now anchored in law. (PDF; 123 kB) Accessed December 4, 2010 .
  7. ↑ Sales taxation of the public sector 23 June 2010, on the website: "Rechtslupe - Nachrichten aus Recht und Taxes"
  8. ↑ ECJ rulings force remunicipalisation - or complete sale. Water in Citizens' Hands !, accessed on August 20, 2009 .
  9. ↑ a b c Joint guidelines from the Federal Cartel Office and the Federal Network Agency on the award of electricity and gas concessions and on changing the license holder. (PDF; 219 kB) BKartA and BNetzA , May 21, 2015, accessed on December 7, 2017 .
  10. ↑ Christof Schorsch, Jessica Faber: Remunicipalisation of the energy supply - opportunities and risks. LDB Consulting Company, February 4, 2010, accessed December 7, 2017 .
  11. ↑ Matthias Machnig: Energiewende in the municipalities ( Memento from June 29, 2013 in the web archive archive.today ), in: DEMO - Monthly magazine for local politics , June 24, 2013.
  12. ↑ First we take Berlin: How citizens take over the power grids in the big cities
  13. ↑ Joachim Fahrun, Daniel Müller: The water warriors and the blue miracle. Referendum. In: Berliner Morgenpost Online. Axel Springer-Verlag, February 13, 2011, archived from the original on February 13, 2011 ; Retrieved February 13, 2011 .
  14. ↑ Official information on the referendum on the remunicipalisation of Berlin's energy supply. (PDF) The Head of State Voting Berlin, p. 30 , accessed on October 24, 2013 .
  15. ↑ Referendum “New Energy” on November 3, 2013 - result of the referendum. The regional returning officer for Berlin. Retrieved November 3, 2013.
  16. ↑ Berlin: power grid in citizen hands! Retrieved October 8, 2019 .
  17. ^ "Citizen Energy Berlin": We buy the Berlin power grid. Berliner Kurier , April 26, 2012.
  18. ↑ Malene Gürgen: Berlin rental market: Rent makes you powerful . In: The daily newspaper: taz . April 5, 2019, ISSN  0931-9085 ( taz.de [accessed June 4, 2019]).
  19. ↑ Resolution text ready! November 27, 2018, accessed on February 15, 2019 (German).
  20. ^ A b Ulrike Meyer-Timpe: Commercial Hamburg. In: Die Zeit , July 6, 2006.
  21. ↑ The curse and blessing of privatization. on: Welt online , June 23, 2007.
  22. ^ That is why the coalition collapsed: Kerstan reckons with Ahlhaus In: Hamburger Abendblatt , November 20, 2010.
  23. ↑ Clean electricity fills the city coffers. In: Die Tageszeitung , October 31, 2010.
  24. ^ Sven-Michael Veit: Hamburg founds eco-public utilities. In: Die Tageszeitung , May 18, 2009.
  25. ↑ Our Hamburg - our network. November 21, 2010
  26. ↑ Taxpayers' Association supports the repurchase of the networks ( memento of September 13, 2012 in the web archive archive.today ), November 5, 2010.
  27. ↑ Remunicipalisation tendencies in Hamburg using the example of the energy market: Assessment and recommendations ( Memento from September 28, 2013 in the Internet Archive ), analyzes and assessments by the Hamburg Chamber of Commerce (PDF; 233 kB)
  28. ↑ Ready for election: Government program and state list adopted ( memento from September 13, 2012 in the web archive archive.today ), SPD-Hamburg, January 15, 2011.
  29. ^ SPD Hamburg: energy policy. Climate protection and energy. In: spd-hamburg.de. November 29, 2012, archived from the original on January 16, 2014 ; accessed on January 16, 2014 .
  30. ^ Opinion on the repurchase of the energy networks online ( memento of August 26, 2011 in the Internet Archive ), press release by the Senate of the City of Hamburg with links to the reports, May 23, 2011.
  31. ^ Gunther Latsch: Hamburg: Empty shell . In: Der Spiegel . No. 17 , 2012 ( online - April 23, 2012 ).
  32. ↑ Hamburg buys power grid from Vattenfall. In: ndr.de. January 16, 2014, archived from the original on November 26, 2016 ; accessed on January 16, 2014 .
  33. ↑ cte, dpa: takeover after referendum. Hamburg pays half a billion for Vattenfall network. In: spiegel.de. January 16, 2014, accessed January 16, 2014 .
  34. ↑ Veolia Group is interested in Hamburger Stromnetz ( Memento from March 5, 2014 in the Internet Archive ), faz.net from February 3, 2014
  35. ↑ Concession Agreement. Power distribution remains in the hands of the city. hamburg.de, November 12, 2014, accessed on November 17, 2014 .
  36. ^ Dietrich Heißenbüttel: Water Poker . In: Context: weekly newspaper . No. 80 , October 10, 2012 ( online [accessed December 1, 2013]).
  37. ↑ Struggle for details with the municipal utilities . In: Stuttgarter Nachrichten , May 25, 2011, accessed on September 18, 2012.
  38. ↑ Municipal council founds Stadtwerke Stuttgart GmbH ( Memento from February 12, 2013 in the web archive archive.today ). In: State Capital Stuttgart Newsroom , July 27, 2011.
  39. ↑ Information to citizens on the status of the concession award procedure in the state capital of Stuttgart. (PDF) City of Stuttgart, May 2013, accessed on March 24, 2014 .
  40. ↑ New concessions for electricity and gas: cooperation model between municipal utilities and Netze BW is awarded the contract. Press release from the city of Stuttgart. March 13, 2013, archived from the original on October 31, 2015 ; accessed on March 24, 2014 .
  41. ↑ Energy 2011: Competitive development with light and shadow. (PDF; 6.8 MB) Special report by the Monopolies Commission in accordance with 62 para. 1 EnWG. P. 49 , archived from the original on December 3, 2013 ; Retrieved December 2, 2013 .