On November 7, 2024, the 6th Decision Chamber of the BNetzA (file reference BK6-24-245) opened a consultation on a draft position paper concerning the allocation of withdrawal capacities at grid levels above the low-voltage level and invited comments. The paper intended to publish a recommendation for action after the consultation. On February 5, 2025, the Decision Chamber announced, after reviewing the comments, that it would not continue its work on the position paper. We participated in the consultation and submitted comments on behalf of our clients.
Why the Proposed Approach Was Problematic:
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Rule of Law Concerns: Regulating capacity allocation through a non-binding recommendation would have had de facto binding effects without a clear legal basis (Vorbehalt des Gesetzes – reservation of law) and would have posed a risk of impairing Article 12 Paragraph 1 of the German Basic Law (freedom of occupation) for operators of large consumers (e.g., data centers, electrolyzers). If the Chamber intended to regulate, it should have done so through a binding, verifiable determination under Section 17 (4) EnWG, and not through informal guidelines. The BNetzA itself describes the BK6's instruments as "determination procedures," i.e., binding determinations.
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"Per Capita" Redistribution Disadvantages Large Loads: The draft favored a per capita redistribution model that systematically undervalued projects with high minimum capacities (e.g., hospitals, industrial sites, large data centers) and created planning uncertainty that hindered investment.
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One-Size-Fits-All Solution Not Suitable: The participation requirements (e.g., uniform proof of "project maturity") would disproportionately burden different project types (from container storage to Tier-3/4 data centers) and lead to indirect discrimination. Differentiated reservation criteria are better tailored to the project type and regulatory path.
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Grid Friendliness and Location Transparency: Publishing available capacities by use case and location (e.g., data centers, industry, storage) and – where appropriate – allocating on a first-come, first-served basis within each use class with robust, time-limited reservations to prevent hoarding and ensure efficient, grid-friendly outcomes, are more transparent.
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Transitional Provisions: Grandfathering/transitional provisions would be necessary for existing reservations to prevent ongoing projects from stalling due to a change in approach mid-process.
Significance for the Market
The Chamber's decision is a clear victory for due process and legal certainty. It confirms that informal instruments cannot replace measures with a solid legal basis when rights and competitive positions are at stake, and it preserves scope for proportionate, verifiable regulation that can be tailored to different technologies and use cases.
What Does This Mean for Stakeholders?
Until the authority pursues a future, properly substantiated instrument (i.e., a binding, verifiable measure), allocation practices must continue to withstand close legal scrutiny and comply with the principles of non-discrimination.
In practice, stakeholders should continue to work with the established processes of their local grid operator. We have observed that some market participants adopted a wait-and-see approach in response to the Chamber's draft, and in some cases, grid operators suspended or modified their allocation procedures in anticipatory compliance. These suspensions and temporary changes should now be reviewed and, if necessary, reversed. If your project was affected, you should consider a resumption or review.
The market remains dynamic. Real-time information, industry expertise, and familiarity with local norms and decision-makers are essential to keep projects on track and avoid unintended discrimination. Contact us if you require assistance navigating local practices or overturning a blocked allocation.
Sources and Further Information:
Announcement on the cessation of the position paper (February 5, 2025)
Consultation Paper (November 7, 2024)
