Germany – Internet service providers ISP – Gemeinde Oberaudorf - Gigabit-RL 2.0 (2024) LSP - Auswahlverfahren einer Dienstleistungskonzession im Wirtschaftlichkeitslückenmodell für die Planung, Errichtung und den Betrieb eines Gigabit-Netzes

Selection procedure for a service concession in the viability gap model within the gap closure program for the planning, construction and operation of a gigabit network according to the Gigabit Directive 2.0 (2024) in the municipality of Oberaudorf

Description: Negotiated procedure with a competitive dialogue in accordance with § 12 KonzVgV in conjunction with § 14 (2), (3) No. 2, No. 3 VgV, § 119 (5) GWB (two-stage negotiation procedure) to determine a network operator for the planning, construction and operation of a gigabit network in the viability gap model within the gap closure program in the advertised expansion areas according to the directive "Promotion to support the gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 1st amendment of 30.04.2024 (hereinafter "Gigabit-RL 2.0"). Due to the given border proximity, the concession grantor assumes internal market relevance and conducts the selection procedure throughout Europe, although the threshold according to § 106 GWB is not reached or exceeded. The essential basis of the procedure are the "Framework regulation of the Federal Republic of Germany for the support of the nationwide construction of gigabit networks" of 01.08.2024 (hereinafter "Gigabit-RR 2.0"), the directive "Promotion to support the gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 1st amendment of 30.04.2024 (hereinafter Gigabit-RL 2.0) as well as the communication of the European Union "Guidelines for state aid for the promotion of broadband networks" of 31.01.2023 (2023/C 36/01). The advertised addresses of the development area are, according to the result of the market survey, subsidizable undersupplied 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 for all end users of the advertised addresses) is to be constructed 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 Description" incl. its annexes. The concession grantor classifies the advertised "Contract for the transfer of grants within the framework of the gigabit expansion in the municipality of Oberaudorf for the purpose of planning, construction and operation of a gigabit-capable broadband network in the viability gap model according to the directive 'Promotion to support the gigabit expansion of telecommunications networks in the Federal Republic of Germany - Federal Gigabit Directive 2.0 (Gigabit-RL 2.0)" as a service concession within the meaning of § 105 (1) No. 2 GWB. The concession grantor thereby transfers the implementation of the supply of the population with gigabit connections, which is incumbent on it as a task 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 concession grantor merely provides a subsidy to cover the possible indicated viability gap, which does not contradict a service concession according to § 105 (1) No. 2 GWB. The focus of the concessionaire's activity is on the service of operating the broadband network for a period of at least seven years. The concession grantor further classifies the gigabit network to be planned, constructed and operated as a "public communications network" within the meaning of the exemption under § 149 No. 8 GWB, so that Part 4 of the GWB does not apply. To the extent that the documents of the selection procedure refer to standards of Part 4 of the GWB, this does not give rise to a claim for their applicability.