Should the Federal Network Agency (BNetzA) and lawmakers be involved?

The Federal Network Agency (BNetzA) should, if necessary and in consultation with the Federal Ministry for Economic Affairs and Energy (BMWE), ensure that the connection of companies that meet the existing connection requirements under current law to the distribution network level continues to be secured as a customer facility. This should continue until national and/or European regulations are established. In addition to the aforementioned supporting and potentially temporary measures, the goal should be to align the existing relevant provisions with the EU Internal Market Directive.

The Court Rulings

In its ruling of November 28, 2024, the Court of Justice of the European Union (CJEU) ruled that the electricity supply systems of two apartment buildings containing a large number of apartments—in which tenants receive their electricity from two combined heat and power plants primarily used for heat supply —do not constitute customer installations within the meaning of Section 3(24a) of the German Energy Industry Act (EnWG). The EU Internal Market Directive on Electricity (Directive (EU) 2019/944) precludes the German regulation on customer installations in the case before the Court. The Federal Court of Justice (BGH) had referred the case to the CJEU for a ruling.

In its decision of May 13, 2025, the BGH incorporated and confirmed the CJEU’s ruling as follows: “Only an energy facility that is not a distribution network can be a customer facility under an interpretation consistent with the Directive.” In answering the question of what constitutes a distribution network, the BGH closely follows the EU Internal Market Directive on Electricity: “On this basis, a distribution network is a network used to transmit high-, medium-, or low-voltage electricity intended for sale to wholesalers and end customers.”

The fact is that the aforementioned decisions of the ECJ and the BGH are binding only inter partes—that is, solely between the plaintiff and the defendant. Consequently, the case cannot be applied directly to other factual situations.

Regardless of this, however, the two court decisions could fundamentally call into question the provision regarding customer installations that has been in place in the Energy Act (EnWG) since 2011 and thus seriously harm the German economy as a whole. This is because, to date, energy facilities have been largely exempt from energy regulation if certain criteria described in Section 3, Nos. 24a and 24b of the EnWG are met.

Urgent Appeal from Industry Associations

The feared consequences are not limited to industry alone but also extend, among other sectors, to retail and the housing sector. Indirectly, this could also result in adverse societal costs that cannot yet be quantified and are therefore unforeseeable.

For the reasons stated above, we at the BDI, together with numerous other affected industries, issued an appeal from the associations to the relevant decision-makers at the end of August 2025. It is essential for Germany as a business location that certain non-market-relevant infrastructures remain unregulated, as they have been to date.

The BDI, its member associations, and their member companies have once again expressly offered further support to the decision-makers in order to find a legally certain and lasting solution.