Germany – Internet service providers ISP – Gemeinde Wittislingen - Gigabit-RL 2.0 (2023) - 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, Paragraph 2, Paragraph 3, No. 2, No. 3 VgV, § 119, Paragraph 5 GWB (two-stage negotiated procedure) to determine a network operator for the planning, construction, and operation of a Gigabit network in the cost-effectiveness gap model in the advertised expansion areas in accordance with the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 (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 construction of Gigabit networks in "grey areas" of 13.11.2020 (hereinafter "Gigabit-RR"), the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 (hereinafter Gigabit-RL 2.0) as well as the communication of the European Union "EU Guidelines for the application of the rules on State aid in relation to the rapid expansion of broadband" of 26.01.2013 in the version of 27.06.2014 (2013/C 25/01). The advertised addresses of the expansion 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 is to be established there 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) 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 Wittislingen for the purpose of planning, construction and operation of a gigabit-capable broadband network in the cost-effectiveness 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, Paragraph 1, No. 2 GWB. The granting authority thereby transfers the realization 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 granting authority only provides a subsidy to cover the cost-effectiveness gap, which is shown, if applicable, which does not conflict with a service concession according to § 105, Paragraph 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 granting authority further classifies the Gigabit network, which is to be planned, constructed, and operated, as a "public communications network" within the meaning of the sectoral exception according to § 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 constitute a claim to their applicability.