Germany – Internet service providers ISP – Stadt Waldershof - Gigabit-RL 2.0 (2025) - Auswahlverfahren einer Dienstleistungskonzession im Wirtschaftlichkeitslückenmodell für die Planung, Errichtung und den Betrieb eines Gigabit-Netzes (Kopie)

Negotiated procedure with participation competition pursuant to § 12 KonzVgV in conjunction with § 14 para. 2, para. 3 no. 2, no. 3 VgV, § 119 para. 5 GWB (two-stage negotiated procedure) for determining a network operator for the planning, construction and operation of a gigabit network in the economic viability gap model in the advertised expansion areas according to the guideline "Promoting the expansion of gigabit telecommunications networks in the Federal Republic of Germany" dated 31.03.2023 in the version of the 2nd amendment dated 13.01.2025 (hereinafter "Gigabit-RL 2.0"). The essential basis of the procedure are the "Framework regulation of the Federal Republic of Germany for the support of the nationwide expansion of gigabit networks" dated 01.08.2024 (hereinafter "Gigabit-RR 2.0"), the guideline "Promoting the expansion of gigabit telecommunications networks in the Federal Republic of Germany" dated 31.03.2023 in the version of the 2nd amendment dated 13.01.2025 (hereinafter Gigabit-RL 2.0) and the communication from the European Union "Guidelines for state aid for the promotion of broadband networks" dated 31.01.2023 (2023/C 36/01). The advertised addresses of the development area are, according to the result of the market survey, eligible under-supplied addresses in the sense of the Gigabit-RL 2.0. For this reason, a gigabit network as a technology-neutral network designation (network with a broadband supply of at least 1 Gbit/s symmetrically under peak load conditions for all end users of the advertised addresses) is to be established in the undersupplied areas on the basis of this selection procedure, whereby the up- and download rates must at least double. Reference is made additionally to the specifications of the "B-Performance Specification" incl. its annexes. The granting authority classifies the advertised "Agreement on the transfer of grants in the context of the gigabit expansion in the city of Bad Griesbach i. Rottal for the purpose of planning the construction and operation of a gigabit-capable broadband network in the economic viability gap model according to the guideline "Promoting the expansion of gigabit telecommunications networks in the Federal Republic of Germany - Federal Gigabit Directive 2.0 (Gigabit-RL 2.0)" as a service concession pursuant to § 105 para. 1 no. 2 GWB. The granting authority thus transfers the task of providing the population with gigabit connections, which is incumbent on it as a matter of public welfare, to the concessionaire, who obtains the right of use of the gigabit network and receives the remuneration for his activity primarily through the fees of the end customers, while the granting authority provides only a subsidy to cover any indicated economic viability gap, which does not preclude a service concession pursuant to § 105 para. 1 no. 2 GWB. The focus of the concessionaire's activity lies in the service of operating the broadband network for a period of at least seven years. The granting authority further classifies the gigabit network to be planned, constructed and operated as a "public communications network" within the meaning of the exemption in § 149 no. 8 GWB, so that the 4th part of the GWB does not apply. To the extent that the documents of the selection procedure refer to standards of the 4th part of the GWB, this does not give rise to a claim for their applicability.