Decision of May 13, 2025 (Ref. EnVR 83/20)
In its decision of May 13, 2025, the Federal Court of Justice (BGH) significantly tightened the requirements for the classification of energy facilities as "customer facilities" in accordance with Section 3 No. 24a Energy Industry Act (EnWG). In line with the ruling of the European Court of Justice (ECJ) of 28 November 2024 (C-293/23 - ENGIE Deutschland), the BGH clarifies: Only energy installations that are not a distribution network within the meaning of Art. 2 No. 28 of the Internal Electricity Directive (Directive (EU) 2019/944) can be considered customer installations.
Background to the individual case
An energy supply company applied for the connection of two combined heat and power plants including line systems as customer installations (Section 3 no. 24a EnWG) to supply a total of around 250 residential units with electricity, heat and hot water. The grid operator rejected this and classified the systems as distribution grids subject to regulation - a view that was confirmed by the previous instances. As part of the subsequent appeal, the BGH referred the question of the compatibility of Section 3 No. 24a EnWG with the Internal Electricity Directive (Directive (EU) 2019/944) to the ECJ for a preliminary ruling.
The ECJ ruled that Section 3 no. 24a EnWG is contrary to EU law insofar as it provides for additional national criteria for the delimitation of distribution networks and thus restricts the scope of application of the Internal Electricity Directive. The only decisive factor is whether the installation in question transmits electricity at high, medium or low voltage to wholesalers or end customers - in this case, it is necessarily a distribution network (Art. 2 No. 28 of the Directive).
The BGH followed this requirement, rejected the appeal on points of law and clarified that the national provision must be interpreted in accordance with the directive. Until the legal reasons now published, it remained unclear whether or to what extent there could still be leeway for customer installations. In its reasons for the decision, the BGH now makes it clear that there is still room for maneuver, even if it is interpreted in accordance with the directive, albeit to a significantly limited extent:
Key points of the reasons for the decision
- Opportunity to classify as a customer installation only remains for non-distribution networks:: Section 3 no. 24a EnWG must be interpreted in accordance with the Directive in such a way that only energy installations that are not distribution networks within the meaning of Art. 2 no. 28 Electricity Directive 2019 can be customer installations (para. 24 of the decision).
This conceivably restricts the scope of application for customer installations, but also means that this construct is not completely removed - as the Federal Network Agency (BNetzA )feared in the meantime. Unlike in the past, classification as a customer installation is no longer dependent on the previous statutory criteria and criteria developed in case law, but rather on distribution network characteristics under EU law - only if these are not present can the scope of application for customer installations under the EnWG remain.
- ECJ requirements are binding: National exceptions to the definition of a distribution grid are only permissible within the framework of the EU Directive, e.g. in the case of citizens' energy communities or small/isolated grids as well as closed distribution grids, cf. section 110 EnWG (para. 22). This means that the standards developed in case law for limitation no longer apply (see para. 15).
- Residual scope remains for self-supply: The BGH continues to see a scope of application for customer installations, even if interpreted in accordance with the Directive, for all line systems that serve to transmit electricity that is not intended for sale - namely, for example, those that serve to supply the operators themselves (line systems that are jointly operated and used by owners of a condominium complex or property owners) (para. 29). Further constellations could remain possible due to the merely exemplary and thus possibly non-exhaustive list of the BGH, provided that these requirements are met.
- No customer installation in the individual case in dispute: The line systems planned by the applicant were to serve the sale of electricity to the tenants and are therefore to be classified as distribution networks subject to regulation (para. 30).
Consequences for practice
The BGH's decision raises the hurdles for classification as a customer installation, but leaves a little leeway - at least for (communal) self-supply. Shared building supply and tenant electricity may remain an option to a more limited extent than before. The assessment of district projects that extend over several properties and buildings is more difficult - the decisive factor here is likely to be whether a sale to third parties takes place. A significant risk for the loss of customer installation status is expressly the sale of electricity via grids to tenants or contracting models with sale to third parties.
The BGH's reasoning thus sheds some light on the situation, but does not provide any clear direction. Whether there is any leeway can therefore only be assessed on a case-by-case basis. The legislator's decision as to whether Section 3 no. 24 a EnwG remains in place, is amended (in line with EU law) or even abolished will also be decisive. In addition to the amendment of section 3 no. 24 a EnWG, a new regulation of the subsidy conditions for decentralized energy supply concepts or the definition of the grid could also be considered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
