- Home
- News & insights
- Insights
- Federal Court of Jus…
- On this page
11 August 2025
Publication series – 31 of 85 Insights
Federal Court of Justice decision dated 15 July 2025 confirms that construction subsidies for battery storage systems based on the performance price model are permissible
- Briefing
On 15 July 2025, the Federal Court of Justice (BGH) ruled (case no. EnVR 1/24) that network operators in network connection procedures under the Energy Industry Act (EnWG) may demand a construction cost subsidy (BKZ) for battery storage systems (BESS) based on the performance price model (BGH press release; full text of the decision). In doing so, the BGH clarified the admissibility of this practice and removed any doubts as to the legality of a BKZ for battery storage systems. On 22 July 2025, the BGH also published the reasons for its decision.
Background to the decision
The question of whether to grant a construction cost subsidy is a key (cost) factor in the implementation of BESS projects. Depending on the connection capacity, the costs often run into the tens of millions, which is why the BGH’s decision was eagerly awaited in the industry.
In the first instance, the Higher Regional Court of Düsseldorf ruled that the granting of a BKZ was excluded on the grounds of discrimination against other connection customers by means of the performance price model. In this case, the Higher Regional Court were of the view that the special features of battery storage systems – in particular their different grid utilisation compared to a “normal” end consumer – had to be considered in the BKZ calculation. Accordingly, a blanket application of the Federal Network Agency’s (BNetzA) performance-based pricing model was not permissible.
Opinion of the Federal Court of Justice
The Federal Court of Justice overturned the decision of the Higher Regional Court of Düsseldorf and deemed the granting of a BKZ in grid connection proceedings under the EnWG to be permissible. It found that the granting of a BKZ calculated according to the performance price model for battery storage systems did not violate the prohibition of discrimination under Section 17(1) EnWG.
The Federal Court of Justice acknowledges that, from a technical point of view, battery storage systems have a different effect on the grid than end consumers: they merely store the electricity they consume and release it later and can even support the grid in the event of impending grid bottlenecks. However, this positive impact on the grid is not necessarily attributable to the respective connection network operator. Ultimately, it is up to the network operators to assess the specific effects on the grid and possible ways of avoiding expansion costs. However, no general discrimination against “normal” end consumers could be established.
However, it should be noted that the question of whether and to what extent the individual service price of the respective network operator was determined in a permissible manner remains open. In this regard, particular consideration will have to be given in future to the position paper of the Federal Network Agency, which provides for average pricing based on the last three years, as well as reduction options for flexible grid connection contracts.
What impact does the ruling have in practice?
The ruling removes the previous legal uncertainty as to whether the BKZ can be granted for battery storage systems, at least for the grid connection procedure under the EnWG. This means that previous payment and reimbursement reservations are now generally irrelevant and the provisions made by grid operators can be reversed. In addition, the storage industry can now prepare for the payment of a BKZ and take this into account in its profitability calculations and project financing.
Does the Federal Court of Justice ruling also apply to storage facilities above 100 MW?
However, the BGH ruling cannot be regarded as legally conclusive. Among other things, the granting of a BKZ on storage facilities with a capacity of 100 MW or more is likely to remain inadmissible. This is because, in deviation from the EnWG, these storage facilities are subject to the so-called KraftNAV, which expressly prohibits the levying of a BKZ in Section 8 (3).
It is also unclear to what extent the collection of a (significant) advance payment of the BKZ is permissible in the ongoing grid connection procedure under the EnWG, as this may in principle only be granted as consideration.
Outlook
Although the Federal Court of Justice’s decision provides some clarification, it must be viewed as a setback for the storage industry overall, alongside the announced network charge reform. It remains to be seen whether the legislature will amend the legal situation for storage facilities in a positive manner to continue to promote the necessary flexibility. In addition, legal uncertainties remain regarding the collection of the BKZ, particularly for storage facilities with a capacity of 100 MW or more. In view of the range of questions currently arising in the grid connection and approval process for battery storage systems, it is to be hoped that the legislator and the Federal Network Agency will take stronger and faster action to end the “legal vacuum” and ensure the necessary planning and investment security for the players involved.
In this series
Integration into the EU electricity market: Switzerland and the EU agree on a wide-ranging agreement
11 May 2026
Revision of energy efficiency requirements for data centres: an overview of the amendment to the Energy Efficiency Act
29 April 2026
Geothermal Energy in Germany: technology, current status and the legal framework for the heat transition
24 April 2026
by Multiple authors
Industrial electricity price: Approval by the European Commission (as of April 2026)
24 April 2026
by Johannes Schaadt-Wambach, LL.M. (Prag), Dr. Markus Böhme, LL.M. (Nottingham)
EEG 2027 – Overview of the Planned Amendment to the Renewable Energy Sources Act
10 March 2026
by Dr. Markus Böhme, LL.M. (Nottingham), Dr. Christian Ertel
The NIS2 Directive: Challenges Renewable Energy Companies
18 February 2026
EU specifies certification of permanent CO₂ removals
11 February 2026
by Dr. Janina Pochhammer, Dr. Niels L. Lange, LL.M. (Stellenbosch)
Electricity Tax Amendment 2025/2026: New rules for BESS, charging infrastructure and renewable energies
14 January 2026
Battery storage systems in outdoor areas - current classification in accordance with § 35 BauGB
19 December 2025
HR compliance in the energy sector – customs authorities step up the fight against sham-employment
15 December 2025
The Current Challenges for Offshore Wind Energy in Germany
2 December 2025
by Multiple authors
Offshore wind in Germany: from market premiums to Contracts for Difference?
28 November 2025
by Multiple authors
Energy Sharing under Section 42 of the German Energy Industry Act (EnWG)
26 November 2025
Bundestag Decides on the Privileging of Battery Storage Facilities in Outdoor Areas under § 35 (1) BauGB
12 November 2025
Industrial electricity price: Initial assessment and opportunities for companies
21 November 2025
by Dr. Markus Böhme, LL.M. (Nottingham), Johannes Schaadt-Wambach, LL.M. (Prag)
FIDIC – An introduction to the FIDIC Suite 2017
22 October 2025
by Multiple authors
The Renewable Energy Expansion Acceleration Act – a boost for the energy transition in Austria?
23 September 2025
Federal Network Agency discussion paper on reforming grid fees for industry and commerce
25 September 2025
by Multiple authors
German-Dutch Treaty on Cross-Border Energy Projects
18 September 2025
by Multiple authors
Energy communities in Austria and the new Electricity Industry Act (ElWG)
15 September 2025
New amendment to the Energy Industry Act (EnWG) introduced in July and August 2025
8 September 2025
Clean Industrial Deal State Aid Framework (CISAF) – a new state aid framework for the green transformation of industry
8 September 2025
by Dr. Michael Brüggemann, Johannes Schaadt-Wambach, LL.M. (Prag)
Industrial electricity prices: initial assessment and opportunities for businesses
18 August 2025
by Johannes Schaadt-Wambach, LL.M. (Prag), Dr. Markus Böhme, LL.M. (Nottingham)
Regulatory Framework for Transmission System Operators in Germany
18 August 2025
by Multiple authors
Court ruling on the effectiveness of availability guarantees for wind turbines
31 July 2025
New Legal Framework for the Commercial Use of Carbon Capture and Storage (CCS) and Carbon Capture and Utilisation (CCU)
11 July 2025
by Multiple authors
Are offshore wind converter platforms a bottleneck in the energy transition? New German government wants to create production capacities at German shipyards
17 June 2025
by Multiple authors
Speeding up the energy transition - the new German government’s plans for gas and steam power plants and its quest for the right technology for renewable energy
8 May 2025
by Multiple authors
Update - Change of government opens the door to carbon capture and storage and carbon capture and utilisation
17 April 2025
by Multiple authors
The special fund for infrastructure and climate protection - what is next?
10 April 2025
by Multiple authors
Changes to CBAM through Omnibus legislative package
10 April 2025
The role of heat probes in the energy transition: Authorisation procedures and potential
26 March 2025
CJEU judgement on customer installations in accordance with Section 3 No. 24a Law on the Energy Industry EnWG
26 March 2025
by Dr. Markus Böhme, LL.M. (Nottingham), Dr. Christian Ertel
Will the new German government open the door for carbon capture and storage?
26 February 2025
by Multiple authors
Waste heat from data centres - new reporting obligations under the EnEfG
6 February 2025
by Multiple authors
Oman and Belgium Sign Landmark MoU on Green Hydrogen Cooperation
11 December 2024
Decision day: Grid fee exemption in customer systems and energy price brake put to the test
28 November 2024
by Dr. Christian Ertel, Dr. Markus Böhme, LL.M. (Nottingham)
Hydrogen core network - The Federal Network Agency’s strategy for the energy transition
11 November 2024
by Multiple authors
Amendment to the Energy Industry Act: changes for energy supply companies and grid and system operators
18 September 2024
by Dr. Christian Ertel, Dr. Markus Böhme, LL.M. (Nottingham)
Standard Essential Patents: A new challenge for the IoT and smart meter world
10 September 2024
Land acquisition and data protection: The importance of the GDPR when project developers request owner data
18 July 2024
by Dr. Patrick Vincent Zurheide, LL.M. (Aberdeen), Dr. Julia Wulff
Municipalities to share profit in wind turbines and ground-mounted photovoltaic systems
11 July 2024
Solar Package I - Overview of Changes to Ground-Mounted and Building-Mounted PV Systems
27 May 2024
Mandatory special charge for open space photovoltaic systems in Brandenburg
21 February 2024
A new era for wind energy investments in Hungary
Power Play: Renewable Energy Update
26 January 2024
Updating the National Hydrogen Strategy
6 November 2023
by Dr. Niels L. Lange, LL.M. (Stellenbosch), Dr. Janina Pochhammer
The new CO2 border adjustment mechanism (Carbon Border Adjustment Mechanism - “CBAM”) - first statutory reporting obligations set for January 2024
Power Play: Renewable Energy Update
3 November 2023
New IT security requirements for the energy sector
Power Play: Renewable Energy Update
1 September 2023
by Dr. Paul Voigt, Lic. en Derecho, CIPP/E, Alexander Schmalenberger, LL.B.
Does monument protection hinder the expansion of renewable energies?
Power Play: Renewable Energy Update
16 August 2023
The amending law to strengthen digitisation in the urban land use planning process and the further expansion of renewable energies
Power Play: Renewable Energy Update
6 July 2023
Challenges for data center operators - The federal government’s draft bill for an energy efficiency act
Power Play: Renewable Energy Update
12 April 2023
by Multiple authors
The Energy Charter Treaty in the Light of the Electricity Price Brake: An opportunity for investors to litigate?
27 January 2023
Ordinance for Determining Critical Infrastructures (KritisV): Renewable energy plants as critical infrastructure and requirements for IT protection
Power Play: Renewable Energy Update
12 July 2022
by Dr. Paul Voigt, Lic. en Derecho, CIPP/E, Dr. Markus Böhme, LL.M. (Nottingham)
Liquefied Natural Gas Projects in Germany: The LNG Acceleration Act
Q&A series: Energy & Infrastructure
10 June 2022
Participation of local municipalities in the context of wind and photovoltaic projects
Power Play: Renewable Energy Update
5 May 2022
Renewable Energy Wrap-Up – France
Power Play: Renewable Energy Update
27 April 2022
Renewable Energy Wrap-Up - United Kingdom
Power Play: Renewable Energy Update
15 March 2022
Building energy performance: the revised Energy Performance of Buildings Directive
Power Play: Renewable Energy Update
14 February 2022
Fit for 55 – Hydrogen and the Reform of the European Gas Market
Power Play: Renewable Energy Update
11 January 2022
Renewable Energy Wrap-Up – Netherlands
Power Play: Renewable Energy Update
2 December 2021
Renewable Energy Wrap-Up – Poland
Power Play: Renewable Energy Update
21 September 2021
by Olav Nemling
Renewable Energy Wrap-Up – Austria
Power Play: Renewable Energy Update
18 August 2021
Renewable Energy Wrap-Up - Germany
Power Play: Renewable Energy Update
12 July 2021
Floating Foundations for Offshore Wind Farms
Power Play: Renewable Energy Update
8 June 2021
Species protection exemption: Significance for wind energy
Power Play: Renewable Energy Update
25 May 2021
Power-to-Hydrogen
Power Play: Renewable Energy Update
6 April 2021
Focus PV – Floating Solar and Agrivoltaics
Power Play: Renewable Energy Update
23 March 2021
Related Insights
