At the oral hearing on 8 October 2026, the Higher Regional Court of Düsseldorf (OLG Düsseldorf) has indicated that it regards the repartition procedure (Repartierungsverfahren) for allocating grid connection capacity as lawful, including – even in the specific form applied in Berlin. The court therefore endorses the position taken by the Federal Network Agency (BNetzA) in the administrative proceedings. The decision (case no. VI-5 Kart 4/26 [V]) is scheduled for the first week of November.
Background
Stromnetz Berlin has introduced a repartition procedure for grid connection requests of 3.5 MVA and above. Available capacity is no longer allocated on a first-come, first-served basis; instead, it is distributed in shares among the applicants. Those applicants that successfully complete the procedure receive a portion of the available capacity, divided in equal parts (per capita). The procedure was announced in mid-2024 and applies to applications submitted from 1 January 2024.
A grid connection applicant planning a data centre challenged the procedure. It objected, first, that the procedure discriminates against connections with large capacity requirements and, second, that it was introduced retroactively.
The BNetzA rejected the applicant’s request in its decision of 26 May 2025 (BK6-25-122). In its view, the choice of allocation procedure remained within the grid operator’s discretion until capacity had been bindingly allocated; it also considered the differential treatment of requests above 3.5 MVA to be justified. The applicant appealed to the OLG Düsseldorf (ref. VI-5 Kart 4/26 [V], formerly VI-3 Kart 662/25 [V]).
The OLG Düsseldorf’s comments at the oral hearing of 8 October 2026
he court indicated that it sees no breach of the non-discrimination requirement under Section 17 of the German Energy Industry Act (EnWG), even though the repartition procedure may effectively prevent applicants with particularly large capacity requirements from exercising their statutory right to a grid connection.
These applicants cannot reliably predict either the capacity they will receive in the short term or the capacity they may be allocated over successive allocation rounds. This uncertainty can deprive large-scale investments of their economic basis. No investor will commit the substantial capital required to build a data centre without sufficient assurance that the necessary electricity supply will be available for long enough to recover the investment. For such applicants, the statutory right to a grid connection may therefore remain intact in principle while becoming effectively impossible to exercise in practice.
The court’s conclusion that this does not amount to unlawful discrimination appears to rest primarily on two considerations: First, the Berlin procedure incorporates project maturity criteria (Reifegradkriterien), which serve to pre-select applications before capacity is allocated. Applicants are therefore not admitted to the allocation process indiscriminately. Second, the court appears to attach considerable weight to the results of the first allocation round. According to Stromnetz Berlin, 37 applications resulted in 20 grid connection agreements, with committed capacities of up to 24 MW, including allocations of 5, 10 and 20 MW. The court appears to regard these results as evidence that the procedure can deliver substantial grid connections rather than excluding applicants from access to the grid altogether. It also considers the equal distribution of available capacity among eligible applicants to be lawful.
The court likewise raised no objections to the retrospective introduction of the procedure. In its view, this fell within the grid operator’s discretion in designing its capacity allocation arrangements. In particular, the operator was entitled to consider the risk that advance notice would trigger a surge in speculative applications, placing additional strain on an already constrained system. The court therefore considered the unexpected and retrospective introduction of the procedure justified.
Particularly noteworthy are the court’s observations on the protection of legitimate expectations (Vertrauensschutz). According to the court, neither the statutory right to a grid connection under Section 17 EnWG nor the principles of pre-contractual liability (culpa in contrahendo) entitle an applicant to insist on the continued application of an existing allocation procedure solely on the grounds that an application for grid connection was filed under the previous procedure and, where applicable, even involved correspondence with the grid operator. Whether this also applies if a reservation agreement has already been concluded remains an open question. The court expressly stated that it is not required to rule on this issue in the present proceedings.
Implications for data centre operators and BESS project developers
The OLG Düsseldorf is expected to confirm the position expressed at the hearing in its decision, scheduled for early November. The court is also likely to grant leave to appeal on points of law (Rechtsbeschwerde) to the Federal Court of Justice (BGH), leaving open the possibility of a different assessment by Germany’s highest civil court.
Despite the court’s observations, we continue to have substantial legal reservations about both the repartition procedure as such and its specific design. Describing it as merely a more efficient means of managing scarce capacity does not, in our view, provide sufficient justification. Project maturity criteria offer a means of allocating limited grid connection capacity according to objective standards while also accommodating large-scale projects. Such projects do not necessarily need their full connection capacity from the outset. They do, however, require a reliable timetable setting out when and in what increments capacity will become available as their operations ramp up. Without such certainty, investors lack a sound basis for committing substantial capital. Whether the OLG will address this issue in its written reasoning remains to be seen.
Pending a possible ruling by the BGH, grid operators are likely to regard the OLG’s decision as an endorsement of their own repartition procedures and to continue applying them. Developers and data centre operators should therefore expect these procedures to remain in place for the time being. There may, however, be a positive consequence: grid operators that suspended their allocation procedures and effectively stopped processing connection requests pending the litigation may now resume those activities. This would at least bring an end to the current standstill and restore some prospect of decisions on outstanding grid connection applications.
The results of the Berlin procedure also offer some encouragement. They suggest that smaller and medium-sized projects have a realistic prospect of securing meaningful grid connection capacity, potentially over several allocation rounds. For substantially larger projects, particularly major data centres with significantly higher power requirements, however, the procedure offers little certainty that the necessary connection capacity can be secured.
(8 October 2026)