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

Negotiated procedure with participation competition in accordance with § 12 KonzVgV in conjunction with § 14 para. 2, para. 3 no. 2, no. 3 VgV, § 119 para. 5 GWB (two-stage negotiated procedure) for the determination of a network operator for the planning, construction and operation of a Gigabit network in the economically viable gap model in the advertised expansion areas in accordance with the directive "Support for the promotion of the gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 2nd amendment of 13.01.2025 (hereinafter "Gigabit-RL 2.0"). Due to the given border proximity, the granting authority assumes relevance to the internal market and conducts the selection procedure throughout Europe, even though the threshold according to § 106 GWB is not reached or exceeded. Negotiated procedure with participation competition in accordance with § 12 KonzVgV in conjunction with § 14 para. 2, para. 3 no. 2, no. 3 VgV, § 119 para. 5 GWB (two-stage negotiated procedure) for the determination of a network operator for the planning, construction and operation of a Gigabit network in the economically viable gap model in the advertised expansion areas in accordance with the directive "Support for the promotion of the gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 2nd amendment of 13.01.2025 (hereinafter "Gigabit-RL 2.0"). Due to the given border proximity, the granting authority assumes relevance to the internal market and conducts the selection procedure throughout Europe, even though 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 expansion of Gigabit networks" of 01.08.2024 (hereinafter "Gigabit-RR 2.0"), the directive "Support for the promotion of the gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 2nd amendment of 13.01.2025 (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 underserved 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 built in the underserved 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 granting authority classifies the advertised "Contract for the transfer of grants within the framework of the gigabit expansion in the municipality of Kohlberg for the purpose of planning, construction and operation of a gigabit-capable broadband network in the economically viable gap model according to the directive "Support for the promotion of 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 para. 1 no. 2 GWB. The granting authority thereby transfers to the concessionaire the task of providing the population with gigabit connections, which is incumbent on it as a task of public welfare, the concessionaire obtaining the right of use of the Gigabit network and receiving the remuneration for its activity primarily through the fees of the end customers, while the granting authority merely grants a subsidy to cover the economic viability gap, which does not contradict a service concession according to § 105 para. 1 no. 2 GWB. The focus of the concessionaire's activity lies in the service of operating the broadband network over 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 under § 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 to their applicability.