Legal protection in charge approval proceedings

(1) Where charge approvals constitute the full or partial approval of a charge already agreed contractually, they take effect retroactively from the date the undertaking with significant market power first provided the service. The court may, in proceedings under section 123 of the Code of Administrative Court Procedure, order the provisional payment of a higher charge applied for, where it is predominantly likely that an entitlement to approval of the higher charge exists; no grounds for the order need be demonstrated. Where the court requires the Federal Network Agency to grant approval for a higher charge, that approval has retroactive effect under the first sentence only where an order has been made under the second sentence. The application for an interim order under section 123(1) of the Code of Administrative Court Procedure may be made and substantiated only up to two months after the action is brought.
(2) Where charges are approved for the first time after 31 July 2018, subsection (1), third sentence, does not apply where the contractual partner under subsection (1), first sentence, requests access services and that undertaking achieved annual turnover of more than EUR 100 million in the last financial year before the action was brought for which annual financial statements are available. Turnover of affiliated undertakings within the meaning of section 3, point 69, is to be taken into account where the affiliated undertakings also generate turnover in telecommunications markets.
(3) In proceedings under subsection (1) in conjunction with section 123 of the Code of Administrative Court Procedure, the court may order, by decision, that only persons who apply within a specified period are joined to the proceedings. That decision is not subject to appeal. It must be published in the electronic Federal Gazette. It must also be published on the website of the Federal Network Agency. The publication may additionally be made in an information and communication system designated by the court for publications. The period must be at least one month from publication in the electronic Federal Gazette. The publication on the website of the Federal Network Agency must state the day on which the period expires. Section 60 of the Code of Administrative Court Procedure applies correspondingly to restoration to the prior position where the period is missed. The court should join, even without application, persons who are evidently affected to a particular degree by the decision. In the cases of subsection (2), first sentence, the first to ninth sentences apply to all legal remedy proceedings brought by the undertaking with significant market power seeking approval of a higher charge applied for.