The Federal Ministry of Economics and Climate Protection (BMWK) has presented a draft bill to amend the Energy Act. The purpose of the bill is to adapt national law to EU requirements. At the same time, it is intended to help accelerate the expansion of the grid.
The reason for this is a ruling by the European Court of Justice (ECJ) of September 2021, in which the ECJ found that Germany had not correctly implemented the Electricity and Gas Directives (formerly Directive 2009/72/EC and Directive 2009/73/EC; now Directive 2019/944/EU) in several respects. This concerned, on the one hand, unbundling issues and, on the other hand, the independence of regulatory authorities in the design of network access and network tariff regulation. The national legislator already amended the Energy Act in July 2022 with regard to the unbundling issues criticized by the ECJ (BGBl. I p. 1214 of 28 July 2022).
The part of the ECJ ruling that has not yet been implemented relates to the independence of the Federal Network Agency: in its ruling, the ECJ stated that German law, which currently still provides for extensive regulation of network access and network fee issues at the statutory or ordinance level, violates European Union law. According to the ECJ, European Union law requires that the national regulatory authority has exclusive competence and independence in matters of network access and network charges.
The new draft law now provides for the power for regulating network access and network fees to be transferred to the Federal Network Agency as the national regulatory authority. The Federal Network Agency is to be able to continue its previous regulatory practice as far as it considers this to be appropriate within the scope of the competences now assigned to it. In terms of substantive law, therefore, nothing will necessarily change. Rather, the amendment is limited to the repeal of ordinances and the underlying powers to issue ordinances and their replacement by the powers of the Federal Network Agency to define regulatory requirements. This applies to the Gas Network Charges Ordinance, the Electricity Network Charges Ordinance, the Electricity Network Access Ordinance, the Incentive Regulation Ordinance and the Gas Network Access Ordinance. The bill provides for transitional periods. Most of the regulations will not expire immediately, but only between 2025 and 2028. In addition, the Federal Government retains the right to issue regulations on the technical and economic conditions for network connection by ordinance. Furthermore, the BMWK, in consultation with the Federal Ministry of Justice, will continue to be able to issue an ordinance on the liability of the transmission system operator obliged to connect and on requirements for insurance companies. As a result, the Act will lead to a significant increase in the powers of the Federal Network Agency. The establishment of an advisory board consisting of members of the state governments and members of the federal parliament (Bundestag) should also be viewed critically. The draft law does not provide for its abolition, although this is unlikely to be compatible with ECJ case law on the independence of the regulatory authority from government bodies.
In addition to the implementation of ECJ case law, the draft bill also provides for regulations to accelerate the expansion of the grid. This primarily relates to the expansion of transmission grids with the aim of enabling full coverage of electricity demand from renewable energies. In addition, in accordance with the principle of “grid optimization before reinforcement before expansion (NOVA principle)” measures are planned to promote higher utilization of the transmission grid. Above all, changes are planned to promote the implementation of planning and approval procedures; for example, the consideration of public interest groups is to be restricted.
(9 May 2023)