Bundestag Decides on the Privileging of Battery Storage Facilities in Outdoor Areas under § 35 (1) BauGB

Quick read

The question of whether battery storage facilities in outdoor areas are privileged under § 35 (1) BauGB is of central importance for the energy industry. Project developers, investors, and authorities have been dealing with the legal classification of battery storage systems for years. Until now, there was no clear legal regulation, which led to uncertainties and, especially in recent months, to the rejection of numerous preliminary building inquiries/building applications. With a current amendment proposal to the EnWG reform, which now also provides for a change to the BauGB, this could change, fundamentally improving the framework conditions for the expansion of battery storage in Germany.

Legal Situation to Date

According to § 35 BauGB, projects in outdoor areas are generally inadmissible unless they are privileged under § 35 (1) BauGB. However, there was previously no explicit privileging for battery storage. Legally, there were certainly many arguments in certain constellations for classifying them under § 35 (1) No. 3 BauGB (“facilities for public electricity supply”), but there was no uniform administrative practice; some state ministries even issued central directives instructing approval authorities not to privilege battery storage. This led to considerable legal uncertainty, differing decisions depending on the region/federal state in which the project site was located, and made the planning of storage projects more difficult.

Amendment Proposal to the EnWG Reform

On November 11, 2025, the parliamentary groups of CDU/CSU and SPD submitted an amendment proposal that provides for the introduction of a separate privileging provision for battery storage. A change to the BauGB was actually not planned as part of the EnWG reform, especially since comprehensive changes to the BauGB (known as the “Bauturbo”) have just come into force. However, the amendment proposal now suggests supplementing the privileging provisions of § 35 (1) BauGB with a new number 11: “…serves the storage of electrical energy in a battery storage facility with a storage capacity of at least one megawatt hour.”

The regulation does not contain any further restrictions such as area limitations or additional location criteria, which were usually discussed in the past in connection with the introduction of such privileging. A formal recommendation for adoption is to follow today (12.11.2025) in the non-public session of the Economic Committee. The second and third readings of the draft in the plenary session of the German Bundestag are then scheduled for November 13, 2025. Whether the proposal will be adopted in this form remains to be seen; since the amendment was submitted by the parliamentary groups of the governing parties, which have the necessary majority, the probability is high.

Significance for the Energy Transition

Privileging battery storage facilities in outdoor areas would significantly simplify approval procedures and increase planning security for project developers and investors. Battery storage is a key technology for the expansion of renewable energies and grid stability, as the volatility of renewable energy generation can only be reliably managed with sufficient storage capacity. The planned change could accelerate the expansion of storage facilities and thus make an important contribution to the energy transition.

Outlook and Recommendations for Action

The likelihood of implementation is high, as the proposal was submitted by the governing parliamentary groups. Project developers and investors should closely monitor developments and adjust their project pipelines accordingly. In addition to building law admissibility, topics such as fire protection, environmental compatibility, and grid connection remain relevant. Furthermore, even privileged projects may face other public interests, such as nature and species protection. With the simultaneous intended introduction of the overriding public interest for energy storage facilities in § 11c EnWG-E, which is part of the same draft document, the enforceability of battery storage projects would be enormously increased. Experience with the overriding public interest introduced in 2023 for renewable energy facilities under § 2 EEG shows that other public interests can only prevent these projects in exceptional cases, and any necessary exemptions and waivers are granted much more easily.

Taylor Wessing is closely following further developments and provides comprehensive advice on all legal and regulatory issues relating to battery storage – from site securing and approval procedures to marketing. Contact us to make your projects future-proof.