TriSol GmbH specialises in the development of grid-connected battery storage systems and has a portfolio of six BESS projects with a total capacity of 185 MW. The portfolio consists of an operational standalone BESS project and 5 projects in advanced stage of development and are designed to make a significant contribution to grid stability and the integration of renewable energies in Germany.

The transaction strengthens BESST Energy's position in the European market for large-volume energy storage. 

Advisor to BESST Energy:
ADVANT Beiten: Dr Christof Aha and Mark Thönissen (both Corporate/M&A, Frankfurt).

Advisor PowerGen:
LPA Law: Oliver Kirfel, Dr Bernd Spieth (both Corporate/M&A, Munich).

Public Relations
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

We had already reported about the cabinet draft for the amendment of the KSpG on 3 September 2025. On 6 November 2025, the German Federal Parliament (Bundestag) has now adopted the KSpTG-E with the content of the latest draft law of 5 November 2025 (BT-printed matter 21/2594). The Act allows the underground storage of carbon dioxide and its export in the future. It thus paves the way for reducing emissions in the CO2-intensive cement, steel and chemical industries, for example, as well as in waste incineration. 

Status of the legislative procedure: How did we end up here?

As the KSpTG-E is an act requiring approval, however, it still requires the approval of the German Federal Council (Bundesrat) before it comes into force. 

This approval is expected to be granted in the upcoming meeting of the German Federal Council on 21 November 2025, provided that the German Federal Council does not raise any further objections to the draft law. The German Federal Council had previously expressed concerns about the details of the Act on 26 September and referred it back to the German Federal Government. The German Federal Government refused some of the proposals of the German Federal Council. However, some of the German Federal Council's wishes were also fulfilled in the latest draft: For example, the planning approval procedure has been further aligned with the regulations of the German Energy Industry Act and the protection of groundwater with regard to its use as drinking water has been regulated as a prerequisite for planning approval.

High costs and lack of CO2 transport network

The question of the costs of CO2 storage is particularly relevant for potential investors: Additional investment is required for capture, transport and storage, but this may be offset by the generation of a new source of income.

Within the framework of the European emissions trading system, companies are obliged to purchase CO2 certificates for the carbon dioxide they emit. In the past, these certificates were allocated free of charge to particularly energy-intensive companies under certain circumstances. This free allocation is to be phased out over time: From 2026, the allocation of free certificates is to be gradually discontinued or linked to energy efficiency measures. In this way, the emission of CO2 into the atmosphere becomes also more expensive, which creates an incentive for investments into CO2 storage in the long term. However, it is currently impossible to say whether this will remain the case in view of the European Parliament's likely postponement of the start of EU-ETS 2 (European Union Emissions Trading System 2) to 2028.

At the same time, CO2 storage entails technical challenges: An extensive pipeline network is required to transport CO2, as CO2-intensive companies are spread across the entire country in a decentralised manner. So far, such a transport network does not exist in Germany. The use of existing natural gas pipelines would be theoretically conceivable, however, will be excluded as long as they are still needed for the transport of natural gas. The storage and transport of CO2 can only actually begin with developing their own infrastructure. 

On the other hand, the opening up of new possibilities with the KSpTG-E also offers opportunities for new business models. This amendment raises the transport and storage of CO2 from a purely research area to an economic level where new markets can emerge.

Storage in Germany

Whether carbon dioxide may also be stored in Germany, depends on the individual German federal states. The KSpTG-E gives the German federal states the opportunity to permit the storage on their territory by law. 

In this respect, the demand for carbon for industry, such as in the production of plastics and synthetic fuels, is also likely to play a role. So far, carbon is generated from fossil raw materials. If fossil raw materials are no longer used in the future, this may open the door for so-called CCU technologies (Carbon Capture and Usage) and may have a positive influence on the cost structure of CO2 storage. At the same time, German companies have a strong market position in the construction of facilities for the capture and purification of CO2 which is further strengthened through the use of their own technologies. 

Conclusion

The storage of carbon dioxide offers a lot of potential to reduce emissions of CO2. Especially for companies with unavoidable CO2 emissions, storage represents an opportunity to continue their operations in the future despite strict legal regulations. Promising opportunities are therefore already opening up for the gradual use of new technologies. It would therefore be welcome if the appropriate regulatory course were already to be set this week.

Dr Malaika Ahlers
Anton Buro

Despite this, hydrogen remains a key technology in the eyes of the new coalition government. With the special infrastructure fund^[2] on the one hand and the prospect of an expanded framework for state aid on the other, there is indeed new impetus that gives hope.

Reason enough to take a look at the political agenda and the corresponding levers in the regulatory framework. 

What does the coalition agreement say?

The future of the hydrogen economy is negotiated centrally in the coalition agreement in no less than twenty lines (p. 34), which are a tough sell:

Pragmatism instead of dogmatism

The development of the hydrogen economy should be faster and more flexible. In addition, "all colours" of hydrogen are to be used - in other words, a technology-neutral approach is to be pursued. The previous focus on green hydrogen in particular will thus be abandoned. Moreover, the focus of the future certification system (probably for both green and low-carbon hydrogen) is on making it unbureaucratic.

Broad infrastructure expansion

With additional routes and taking into account hydrogen storage facilities, the hydrogen core network is to be supplemented by a distribution network infrastructure to ensure a connection to the industrial centres in the south and east. In addition, European and German harbours are to be integrated into and connected to the necessary infrastructure for the import of hydrogen.

Stabilise funding instruments

National and European funding programmes are still needed to develop infrastructures and domestic production capacities. The coalition agreement explicitly mentions H2Global, IPCEI projects and specific programmes for SMEs.

Further ideas for additional incentives for the demand for hydrogen can already be found on p. 6 of the coalition agreement. There, climate-neutral lead markets are outlined via the quota regime (e.g. for green steel) or levers under public procurement law.

What does the European Clean Industrial Deal make possible?

If the Commission has its way, Germany (and the other Member States) will in future have an extended framework under state aid law for the promotion of investments in hydrogen ramp-up.

The draft Clean Industrial Deal^[3] presented by the Commission in February also explicitly provides for a new aid framework (Clean Industrial State Aid Framework - CISAF^[4]). This is intended to complement the existing guidelines for state aid for environmental, climate protection and energy. As the name already suggests, the focus is on industrial policy requirements. In addition, the present draft explicitly recognises the challenge of the cumulation of different state aid vehicles and attempts to resolve this.

In addition, further impetus for the hydrogen industry is expected from Brussels. For instance, the delegated act on low-carbon hydrogen is to be adopted in 2025 to create clarity for investors. This will be accompanied by a study to assess the effectiveness of the current regulatory framework and to identify potential obstacles to the expansion of renewable hydrogen.

In the second quarter of 2025, a hydrogen mechanism is to be introduced via the European Hydrogen Bank (EHB) which will bring together buyers and suppliers and provide financing and risk mitigation instruments. A third bidding round of the EHB with a budget of up to EUR 1 billion is planned for the third quarter of 2025.

Seize opportunities - minimise risks

With the change of government acting as a catalyst, the legal framework for the hydrogen economy, including the funding landscape, is likely to change again over the next few months.

In addition to new funding vehicles, however, adjustments to existing privileges cannot be ruled out.

For instance, in its recently published discussion paper on the further development of the general grid fee system, the Federal Network Agency casts doubt on the appropriateness of the existing 20-year grid fee privilege for electrolysers.^[5]

Hence, flexible regulations are needed in the contractual design of projects that safeguard economic interests even against the backdrop of a constantly changing legal situation. 

In addition, funding law challenges must be overcome when cumulating privileges. This is because national regulations can also fall under cumulation bans beyond the subsidies approved under state aid law, e.g. as part of the IPCEI waves or the EHB tender processes. Finally, there is also a risk of reclaims if funding recipients violate public procurement law requirements when using the funding. In procurement processes, the framework set by the respective funding provider and the applicable public procurement law should therefore be observed without exception to avoid unpleasant surprises - e.g. in the context of a later audit of the utilisation of funds.

Conclusion

With the special infrastructure fund on the one hand and the short-term expansion of state aid instruments on the other, the chances of a successful market ramp-up in Germany are better than they have been for a long time.

In addition, Katherina Reiche is a proven expert at the head of the BMWE who credibly stands in favour of consolidating the legal framework. The speed at which the requirements for new projects and those already being realised are likely to remain high.

Authors: Sebastian Berg and Max Stanko

Experts involved: Julian Gruß and Johannes Voß-Lünemann

^[1] Cf. BDEW, Strombezugskriterien Delegierter Rechtsakt für RFNBO-konformen Wasserstoff, with clear criticism of the current design of the additionality and temporal correlation criteria, available at: Strombezugskriterien Delegierter Rechtsakt für RFNBO-konformen Wasserstoff | BDEW

^[2]In this respect, the DVGW is calling for a further 50 billion from the special infrastructure fund to finally boost the market ramp-up, DVGW e.V.: 2025-04-23 - Sondervermoegen.

^[3]See also: EU-Kommission stellt den Action Plan for Affordable Energy als Teil des Clean Industrial Deals vor | ADVANT Beiten

^[4] See draft version under 45b532ce-53fb-4907-975c-79edaa31a166_en.

^[5] BNetzA, Bundesnetzagentur - Presse - Bundesnetzagentur veröffentlicht Diskussionspapier zur Bildung der Stromnetzentgelte.

With its SolarMe electricity brand, Solarimo offers tenant electricity solutions for the housing industry. With this transaction, 300 photovoltaic systems with an installed capacity totalling 10.3 megawatts are to be transferred to Einhundert's operations by the end of the year. The systems are expected to supply more than 10,000 tenants across Germany with locally generated solar power. This is expected to save around 4,000 tonnes of CO2 per year.

ENGIE Deutschland GmbH is committed to accelerating the transition to a carbon-neutral economy. In Germany, the company plans, builds, operates and markets wind, photovoltaic and hydropower plants as well as pump storage and battery storage systems. Engie trades in electricity and gas and supplies end customers with energy.

The transaction was led by Dr Barbara Mayer, Christian Burmeister and Peter Meisenbacher at ADVANT Beiten. 

Einhundert Energie GmbH has been supporting real estate companies in the electrification and decarbonisation of their building portfolios since 2017. The Cologne-based company enables housing companies and their tenants to participate in the energy transition. The aim is to use 100 per cent CO2-neutral energy from local PV systems.

Consultant Solarimo:

ADVANT Beiten: Dr Barbara Mayer (Corporate/M&A, Freiburg), Christian Burmeister (Corporate/M&A, Freiburg/Berlin), Peter Meisenbacher (Public Sector/Energy, Freiburg/Berlin, all lead partners), Dr Erik Schmid, Alexander Gräßel (Labour Law, Munich/Freiburg).

Consutant Einhundert Energie:

Noerr: Dr Christoph Thiermann, Dr Christian Haagen (Munich/London)

Public Relations

Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

Dr Barbara Mayer
Rechtsanwältin
ADVANT Beiten
+49 (761) 15 09 84 - 14
Barbara.Mayer@advant-beiten.com

Christian Burmeister
Rechtsanwalt
+49 (761) 15 09 84 - 18
Christian.Burmeister@advant-beiten.com

The acquired portfolio consists of three ready-to-build solar projects. The first project is located in Saarland, the second is an innovative Agri-PV project in Mecklenburg-Western Pomerania and finally another Agri-PV initiative in Lower Saxony. These projects are expected to be completed between mid and late 2025.

The ADVANT Beiten team, led by Dr. Christof Aha, regularly advises Trinasolar.

Trinasolar ISBU is the project development arm of Trinasolar and specializes in the development, engineering, procurement, construction, operation and maintenance as well as asset management of solar and battery storage projects worldwide.

Emeren Group is a global developer and operator of solar projects. The shares of Emeren Group Ltd. are listed on the NYSE.

Trinasolar France and Emerem Group have already worked together successfully in the past. With this strategic transaction, Trinasolar strengthens its commitment to expanding renewable energy solutions and promoting sustainable developments across Europe.

Advisor Trinasolar:
ADVANT Beiten: Dr Christof Aha (lead), Mark Thönißen, Felix Busold (all Corporate/M&A), Leopold Linden (Real Estate, all Frankfurt), Katrin Lüdtke (Public Law, Munich).
Inhouse Trinasolar: Esther Muñoz Contreras (Rome)

Advisor Emerem Group:
BNK: Dr. Florian Brahms, Désirée Oberpichler (both Hamburg)
Inhouse Emerem Group: Manuel Ales, Teresa Cera Mora (both Madrid)

Press contact
Frauke Reuther
Communications Manager
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

One element of this package of measures is the Action Plan for Affordable Energy. It presents a roadmap for affordable and secure energy supply. 

The following text gives you an overview of the key points of this roadmap.

I. The EU action plans

Energy prices in the EU have risen dramatically in recent years, affecting households, companies and industry alike. Energy-intensive industries in particular are facing rising costs that jeopardise their competitiveness on the global market. At the same time, geopolitical uncertainties and dependence on fossil fuel imports are exacerbating the situation.

At the end of January 2025, the European Commission already described and announced measures in its Competitiveness Compass for the EU, based on the Draghi Report, that are intended to accelerate the transformation of the EU and increase its competitiveness. 

The Green Industrial Deal has now been published as part of this Compass. In this context, the EU Commission presents, among other things, the Action Plan for Affordable Energy.

The aim of this Plan is to reduce energy costs in the short term, accelerate structural reforms and create a stable, climate-friendly and competitive energy system within the EU in the long term.

II. High energy costs in the EU

The Commission lists several factors that are responsible for the high energy costs. On the one hand, it mentions the heavy dependence on imported fossil fuels, especially gas. High price fluctuations on the global markets and geopolitical tensions are inflating costs. On the other hand, the report identifies a disadvantage in the still inadequate integration of the European electricity grid, which leads to grid bottlenecks and inefficiencies and therefore to higher costs. High taxes, grid fees and levies in the individual Member States are also cited as major factors causing high and rising energy prices.

III. The four pillars of the Action Plan

In order to reduce these high energy costs quickly and systematically and to make the energy system fit for the future, the Action Plan presents four pillars containing a total of eight actions: Lowering energy costs (Pillar 1), completing the Energy Union (Pillar 2), attracting investments (Pillar 3) and being ready for potential energy crises (Pillar 4).

Pillar 1: Lowering energy costs

In Pillar 1, the EU Commission defines four actions to lower energy costs.

Action 1: Make electricity bills more affordable

As a first step, network charges will be reduced and taxes and levies lowered. The Commission intends to introduce new pricing structures for this purpose, designed specifically to promote flexible grid use and grid stability. The Commission also wants to issue recommendations to the Member States on reducing taxes and levies, with the costs to be shifted to the national budgets. In addition, switching energy suppliers will be made easier for consumers, and energy communities will be promoted.

Action 2: Bring down the cost of electricity supply

Besides the above, the Commission plans to develop legal guidelines for power purchase agreements (PPAs) and contracts for difference (CfDs) to promote more favourable procurement models and the integration of renewable energies also for those consumers who have so far had little access to this type of electricity supply. Regulatory obstacles will be removed by the Member States and certain instruments will be introduced to minimise risk. 

The Commission also intends to make legislative proposals to further shorten authorisation procedures for grids, storage and renewable energies. Member States will be supported in their efforts to improve the human and financial resources of the authorisation authorities. This should reduce approval periods to less than six months for simpler projects, such as repowering projects in acceleration areas.

The presentation of a European Grid Package, which will build on the Network Action Plan already in place since 2023, is also aimed at accelerating the modernisation and digitalisation of the networks in Europe. System flexibility is going to be increased through the further expansion of storage capacity and also through demand response. To this end, the Member States should implement the EU regulations on market access more quickly and offer better incentives to make flexibility more attractive for the individual stakeholders.

Action 3: Ensure well-functioning gas markets

The competitiveness of the gas markets will be improved through fair prices. It is planned that a Gas Market Task Force will thoroughly scrutinise the market and take steps to ensure the proper functioning of the market and prevent market distortions. A broad stakeholder consultation will be launched in the areas of regulatory oversight, alignment and strengthening of energy and financial market rules, reduction of administrative burden for companies trading in energy financial markets and the introduction of a common harmonised database. The work of the task force is expected to be completed by the 4th quarter of 2025 with the delivery of a recommendation.

Action 4: Energy efficiency - delivering energy savings

Another aspect of lowering energy costs is to reduce energy consumption, i.e. improve energy efficiency. Access to energy efficiency services will be facilitated and financial incentives increased, both for companies and consumers. Especially the latter will be offered easier access to energy-efficient products and products with a longer service life. To this end, labelling and ecodesign regulations will be adapted. 

Pillar 2: CompletIng the Energy Union

The Commission addresses the completion of the Energy Union in Pillar 2 of the Action Plan - which is also Action 5. Meeting this goal requires long-term structural measures. The Commission proposes, among other things, the introduction of an Energy Union Task Force for improved coordination between the Member States, the revision of the existing Energy Union Governance Regulations and the introduction of a Heating and Cooling Strategy. An investment strategy for clean energy and a strategic roadmap for digitalisation and AI in the energy sector will also be presented.

Pillar 3: Attracting investments

In Pillar 3, the Commission deals with the financing of the energy transition. Securing a stable and affordable energy supply for European industry in the long term will be made easier.

In Action 6, the Action Plan therefore provides for the creation of a favourable investment climate through a tripartite contract for affordable energy between energy producers, public sector and industry. The European Investment Bank (EIB), the Commission and the Member States are expected to support the parties involved. The aim is to provide predictability and scalability. 

Pillar 4: Being ready for potential energy crises 

Pillar 4 provides the Member States with appropriate instruments to enhance resilience of the energy market during future energy crises and to strengthen security of supply.

In Action 7, the Commission therefore announces a proposal to revise the current EU legal framework for the security of energy supply. The proposal will help to stabilise prices by drawing on the experience of the current energy crisis. This is aimed at ensuring better availability of energy at all times.

Action 8 guides the Member States on incentives through an appropriate remuneration system to reduce demand at peak times. Grid operators are encouraged to implement measures to reduce energy consumption at certain times. This is intended to keep the energy bill down and to reduce price volatility. Action 8 aims at stabilising the energy market and improving price control. In cases where a grid bottleneck or overload severely impedes the flow of energy, close cooperation between the transmission system operators (TSOs) and the national authorities will continue. Overall, cross-border electricity trading is to be maximised to mitigate local price peaks and guarantee the supply of energy.

IV. Conclusion and outlook

The measures presented in the Action Plan for Affordable Energy are numerous and range from specific adjustments to existing regulations all the way to reports by task forces yet to be established based on which specific measures will have to be developed. The Action Plan’s aim to reduce energy prices in the EU and thus strengthen competitiveness is certainly equally important and valid for all Member States, consumers and industry. It remains to be seen exactly which measures will be implemented and how they can and must be integrated into the German legal framework. The timelines for the implementation of the measures listed in the Action Plan range from ‘immediately‘, through the first calendar quarter of 2025, to the beginning of 2026. 

We will monitor the developments and the impact on individual market participants, analyse them and keep you informed.

Peter Meisenbacher
Dr Malaika Ahlers LL.M.

Sebastian Berg, Anton Buro und Dr Florian Böhm from our Energy team will also be happy to answer any questions you may have on energy law-related issues.

The year 2025 will be at least as dynamic as the years before when it comes to energy law. It remains unclear what impact the upcoming elections in February and the changing geopolitical situation will have on the direction and objectives in the energy sector. The following is a brief overview of what is already known to be introduced in 2025.

1. Obligation for meter operators to install smart metering systems pursuant to section 34 (2) sentence 1 no. 1 of the German Metering Point Operation Act (Messstellenbetriebsgesetz, MsbG)

As from 2025, every household may receive a digital electricity meter. Essentially anyone with an annual electricity consumption of more than 6,000 kWh, solar systems with an output of more than 7 kW and/or controllable heat pumps is eligible. Starting at the beginning of this year, metering point operators are obliged to equip, on request, metering points and submeters installed in a customer system and not requiring accounting with 15-minute smart metering systems (pursuant to section 2 no. 7 MsbG) earlier, but beware, the term 'customer system' has been fundamentally called into question by the ECJ ruling of 28 November 2024 (Case C-293/23) (you can read about this in our article in the December 2024 issue of the newsletter Focus on the Public Sector (available in German only)). The installation of smart meters used to be voluntary but is now mandatory within four months of being commissioned. This is another step in the 'smart meter rollout' announced by the legislature, which has made only slow progress in recent years.

2. Obligation for electricity suppliers to offer dynamic electricity prices pursuant to section 41a (2) of the German Energy Industry Act (Energiewirtschaftsgesetz, EnWG)

From 1 January 2025, all electricity suppliers will be obliged to offer end consumers electricity contracts with dynamic electricity rates, provided these consumers have smart meters. According to section 3 no. 31d EnWG, dynamic rates mean they that reflect the price fluctuations of the energy exchange. This allows end consumers to be flexible in their consumption of electricity and optimise it to coincide with periods of low electricity prices. Electricity suppliers must furthermore comprehensively inform their customers about the dynamic rates and offer information about the installation of a smart metering system.

3. Obligation for electricity suppliers to guarantee a change of supplier within 24 hours

Under ruling BK6-22-024 of the German Federal Network Agency (Bundesnetzagentur), electricity suppliers will be obliged as of 4 April 2025 to guarantee an accelerated change of supplier within a maximum of 24 hours on every working day if end consumers wish to do so.

4. Obligation for system operators to guarantee marking and lighting of wind turbines at night pursuant to section 9 (8) of the German Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz, EEG)

From 1 January 2025, onshore wind turbines must be equipped with aircraft detection lighting systems (ADLS) where this is required under aviation law. If system operators fail to comply with this obligation, they will have to make payments to the grid operator in accordance with section 52 (1) no. 3 EEG.

5. Increased CO2 price for end consumers pursuant to section 10 (2) sentence 2 no. 5 of the German Fuel Emissions Trading Act (Brennstoffemissionshandelsgesetz, BEHG) 

On 1 January 2025, the price per emissions certificate in national emissions trading will increase to EUR 55. With the higher CO2 price, the legislature wants provide incentives for end consumers to switch to low-CO2 or even CO2-free technologies. This marks the beginning of the last year of the fixed-price phase, in which the price of an emissions certificate is determined by law. From 2026, the price of an emissions certificate will be determined by auction, similar to the European emissions certificate trading system. A price corridor will limit the price of a certificate to range between EUR 55 and a maximum of EUR 65 in 2026.

6. Obligations for owners of combustion plants after the expiry of the transitional provisions in the German Federal Immission Control Regulation (Bundesimmissionsschutzverordnung)

The Federal Immission Control Regulation stipulates that owners of furnaces burning wood, coal and other solid fuels are obliged to adhere to specified carbon monoxide and particulate matter limits. The last transition period for compliance with these requirements ended on 31 December 2024. Owners of a furnace not meeting these legal requirements must make the necessary adjustments or take the furnace out of operation if these requirements cannot be met. Anyone who fails to do so will face fines.

7. Obligations for developers and owners regarding building automation pursuant to section 71a of the German Building Energy Act (Gebäudeenergiegesetz, GEG)

If a heating system or a combined heating or air conditioning and ventilation system with a rated output of more than 290 kilowatts is installed in a non-residential building, this non-residential building must be equipped with a building automation and control system as from 1 January 2025. The requirements for this digital energy monitoring technology are listed in section 71a (2) and (3) GEG. According to the legislature, building automation helps adjust operating times or prevents simultaneous heating and cooling. This Act transposes Article 14 (4) and Article 15 (4) of Directive (EU) 2024/1275 (EPBD).

8. Expiry of the innovation clause (section 103 GEG)

The innovation clause allows owners and developers to apply (usually with the lowest building authority and until 31 December 2025) for an exemption from certain requirements of the GEG on the basis of using innovative solutions. For the time being, this technology-neutral approach has been extended until the end of the year. Given the current, uncertain political situation, however, especially with regard to the GEG, it is impossible to say whether a further extension can be expected. It could therefore be worthwhile for project developers to start implementing innovative projects as early as 2025 and apply for an exemption under section 103 GEG.

9. Waste heat reporting obligation for companies under section 17 (2) of the German Energy Efficiency Act (Energieeffizienzgesetz , EnEfG)

Companies must report data on their waste heat quantities to the Federal Agency for Energy Efficiency (Bundesstelle für Energieeffizienz) for the first time on or before 1 January 2025. From this year onwards, such reports must be submitted every year on or before 31 March. Therefore, companies who report data on their waste heat quantities for the first time in 2025, will have to file two reports in 2025. This obligation applies to companies with a total annual energy consumption of more than 2.5 GWh within the past three years. Anyone who fails to comply with this reporting obligation could be liable to a fine, see section 19 (1) no. 9 EnEfG. This reporting obligation is meant to support mainly district heating network operators and other heat consumers: they will be able to view potential sources of waste heat in order to leverage any efficiency potential. Companies must reuse their waste heat to save energy to the extent this is possible and reasonable.

10. Rulings of the German Federal Network Agency; industrial grid charges and grid capacity

With its key issues paper of 24 July 2024, the Federal Network Agency (Bundesnetzagentur, BNetzA) initiated a reform of industrial grid fees. A new ruling of the BNetzA is meant to create new incentives for electricity-intensive companies. To make this possible, the band load privilege is to be abolished. The purpose of the band load privilege is to provide incentives for electricity-intensive end consumers to keep constant base loads.

In addition, the BNetzA has initiated a procedure to create uniform standards for the allocation of grid capacity above low-voltage level. The relevant consultation process ended on 31 December 2024, meaning that the BNetzA is expected to make a decision in 2025.

Dr Malaika Ahlers
Anton Buro

Peter Meisenbacher will join ADVANT Beiten as a Salary Partner at the Freiburg office on 15 September this year and will work closely with his Berlin energy law colleagues in the Public Sector practice group. At the same time, there will be close cooperation with the Freiburg partners who advise clients from the energy sector in commercial and corporate law as well as in M&A transactions (most recently at ADVANT Beiten and ADVANT Nctm advise BKW on expansion of its interest in HelveticWind). Freiburg has traditionally been a strong centre in the field of renewable energies, particularly thanks to the Fraunhofer Institute ISE and INTERSOLAR / The smarter E Europe, Europe's largest trade fair alliance for the energy industry, which is co-organised by the Freiburg Economic Development Agency and has been legally supported by ADVANT-Beiten for many years. In this environment, Peter Meisenbacher's expertise in energy law is a valuable addition. 

Peter Meisenbacher (37) advises comprehensively on renewable energy law with a focus on civil law at the interface with energy law. Due to his many years of experience in the field of renewable energies, he advises project developers, investors and banks as well as local authorities and municipal utilities throughout Germany and internationally on the realisation of energy projects. One of his main focuses is the realisation of photovoltaic projects. Before joining Sterr-Kölln & Partner, Peter Meisenbacher worked for several years at Becker Büttner Held, where he worked together with Dr Malaika Ahlers and advised companies on all issues they face as consumers, electricity and heat suppliers or network operators.

‘The energy sector represents a particular focus at ADVANT Beiten. Our interdisciplinary, cross-office team is growing continuously so that we are optimally positioned for the constant change that the industry is undergoing,' explains Dr Malaika Ahlers and adds: ’We are pleased to have won another very experienced expert in Peter Meisenbacher, whose expertise, primarily in the important renewable energies segment, is an ideal fit for us: a perfect match. 

Dr Jan Barth, head of the Freiburg office, is pleased about the expansion of his expertise: 'We started in 2022 as a pure corporate/M&A office and are constantly expanding our range of advice, first with employment law and now with public law and energy law.'

Public Relations
Frauke Reuther
Manager Kommunikation
ADVANT Beiten
+49 (69) 75 60 95 - 570
frauke.reuther@advant-beiten.com

More flexible use of battery storage

The German coalition government enacted various amendments to the Renewable Energy Act (EEG) to provide a more flexible option for the use of power stores:

Until now, subsidies have been available for electricity from renewable energy sources (RE electricity) fed into the grid from battery storage, provided that only RE electricity was used to charge the battery for the whole year. The Solar I Package inserts a new § 19 (3a) into the EEG, which allows RE electricity to be subsidised even where the feeding battery was not charged solely with RE electricity for a whole year. The operator of the battery may now switch the operating mode of the battery five times within a year, providing there is at least two months between each switch. For those periods in which the battery is charged solely with RE electricity, the battery will be considered a RE facility and entitled to subsidies under the EEG.

Tenders for larger facilities

The Package increases the maximum tender size for solar installations in the first segment from 20 to 50 MWp. This welcome change allows project developers to receive subsidies for facilities with economies of scale, making them more cost-effective.

Opt-out rule for disadvantaged regions

Electricity from solar power can be subsidised, for example, when the facility is in a so-called “disadvantaged region”. Until now, the German Länder could open up their disadvantaged regions for RE electricity generation but were not required to do so (so-called “opt-in rule”).

This rule has been reversed and is now an opt-out rule: disadvantaged regions are legally considered open (without requiring the approval of the Länder). Each Land must open up at least one per cent of its agricultural areas by the end of 2030. This minimum share will then increase to 1.5%. Once these thresholds are exceeded, the Land can again close certain disadvantaged regions to the production of electricity from renewable energy sources.

In addition, disadvantaged regions are now open to solar farms that cannot participate in tenders. Accordingly, project developers can establish smaller photovoltaic systems (rated output under 750 kWp) in disadvantaged areas.

Tolerance obligation for the expansion of the grid and power lines

The Solar I Package allows developers of photovoltaic systems to demand that the legal users of public properties tolerate the installation of power lines. This is designed to significantly speed up renewable energy projects and the expansion of the grid. The adopted law does not go as far as the draft bill, which subjected all property owners, including private owners, to this tolerance obligation.

Similarly, new § 11b of the EEG provides a right of way over publicly-owned property during the construction and dismantling of wind farms.

New tender procedure for special systems

Special systems (agricultural photovoltaic systems, systems on parking lots, etc.) were previously at a disadvantage when tendering output capacity as the basic costs of such projects were typically higher than those of systems built in open spaces where construction is easier. To counteract this effect, the entry into force of the Solar I Package will make it possible to tender special systems separately in the first segment.

As developers of special systems no longer need to compete against conventional plants built in open spaces, new open spaces will become viable in agricultural areas, on parking lots, in grasslands, and on moors.

Summary

The Solar I Package contains key changes, which will facilitate the construction and expansion of photovoltaic plants.

Again: after the Solar I Package comes Solar II. Various issues still need deregulating and numerous legal incentives are still needed if the full potential of the expansion necessary to reach national and European climate goals is to be achieved.

Dr Christof Aha
Dr Malaika Ahlers
Anton Buro
Leopold Linden

The law (still) focuses on improving tenant electricity supply, the introduction of “shared building supply” as a new model for the supply of electricity from photovoltaic systems (“PV systems”) in buildings, as well as “subsidy-free supply” as a new form of marketing. These changes establish the legal cornerstones for the comprehensive autonomous supply of electricity from PV systems mounted on the rooves of apartment and industrial buildings. This generates new opportunities for decentralised supply models for utility companies, but also for the original partners in the real estate sector. Landlords can tap into the economic potential of their buildings by either establishing and operating PV systems or leasing roof space.

Specifically:

Simplified landlord-to-tenant electricity

Under the current law, landlord-to-tenant electricity supply may only utilise solar panels mounted on residential properties (§ 21 (3) of the Renewable Energy Sources Act (EEG) and § 42 of the Energy Industry Act (EnWG)). In the future, panels may also be mounted on industrial and auxiliary buildings (such as garages). Tenant electricity also no longer needs to be used within residential buildings.

The Solar Package extends the maximum permissible duration of landlord-to-tenant electricity supply contracts to two years.
Additionally, this maximum only applies where the customer is a consumer.

The downside to deregulation is that the operator of the PV system and the end customer may no longer belong to a corporate group (PV system operators must provide a declaration to this end). This is designed to prevent the misuse of subsidies.

Regulatory hurdles often dissuaded operators of landlord-to-tenant electricity systems from claiming subsidies where industrial and residential leases were involved. The low level of subsidies rarely justified the administrative and advisory costs. Liberalisation makes the landlord-to-tenant model more attractive.

Energy sharing

The Solar Package introduces a new supply model: the “shared building supply” model (§ 42b (1) of the EnWG). This model is independent of and parallel to the landlord-to-tenant supply model and releases users of the model from numerous supply obligations to enable the supply of solar energy within a building without the normal level of bureaucracy. In particular, operators of energy-sharing systems (PV systems) are not required to supply the residual electricity that the PV system cannot cover.
Complex questions of implementation arise with respect to the measurement every quarter of an hour (end customer energy reference quantities must be measured every quarter of an hour), the determination of the allocation key, and the assignment of quantities to individual customers.

Landlord-to-tenant electricity model or energy-sharing model?

Energy sharing (§ 42b EnWG) and landlord-to-tenant electricity (§ 42a EnWG) should form distinct models for the consumption of electricity from PV systems close to where it is generated. ;In contrast to landlord-to-tenant models, suppliers in energy-sharing models do not have to offer full supply. Accordingly, the law removes the obligations on suppliers to conclude a contract to supply residual energy and to use a mixed calculation. The Package does not foresee any additional funding for the quantity of electricity supplied through energy-sharing models – as distinct from landlord-to-tenant systems – because the full supply obligation and certain other supplier obligations have been removed. Compensation will still be available as usual under the EEG for electricity fed into the grid unless the PV system operator has selected to feed electricity into the grid without receiving payment of the EEG subsidy (unentgeltliche Abnahme).

Energy sharing could therefore become an uncomplicated alternative form of supply, especially in residentiary or mixed-use buildings.

Direct marketing and sale of energy without EEG subsidies

Many project developers deliberately kept facilities small to avoid the direct marketing obligation for excess energy. This obligation now only applies to facilities with an installed capacity of 200 kilowatts or more.

Photovoltaic systems with an installed capacity of between 100 and 200 KW can now be earmarked as free-of-subsidy installations. While system operators will not receive any additional payment of EEG subsidies for electricity that is fed into the grid, they also do not need to undertake any direct marketing. Obviously, this form of marketing will only make sense when it is foreseen that solar energy consumption will be highly decentralised.

Summary

The potential of large rooves of industrial properties for mounting PV systems is far from exhausted. The Solar I Package implements important improvements for the decentralisation of energy supply within buildings. It reduces red tape, opens up roof space potential, and facilitates participation by expanding supply options for project developers.

However, this potential can still be utilised more fully: associations involved in the most recent hearing of the Committee for Climate Protection and Energy of 22 April 2024 called for various outstanding guidelines to be provided. These include legal frameworks for energy sharing and measuring the direct marketing limit by the amount of electricity fed into the grid, as well as specific conditions related to the commercial tax privilege.

After the Solar I Package comes Solar II!

Find out more about the improvements introduced for solar power systems here.

Dr Christof Aha
Dr Malaika Ahlers
Anton Buro
Leopold Linden

Importers of products listed in Annex I of the CBAM Regulation will be required,

• during the transitional period from October 2023, to determine and calculate the direct and indirect emissions generated during the production of the imported goods,
• to report quarterly on direct and indirect CO₂ emissions in the country of origin and the carbon price paid in the third country (CBAM report),
• to register as a so-called CBAM declarant, being authorised to import products subject to CBAM from January 2026 and to acquire the necessary CBAM certificates.

The companies must submit their first reports by the end of January 2024.

In detail:

CBAM and the European Green Deal

Four years ago, in 2019, the European Union as a pioneer in the fight against the climate crisis, set itself the goal of achieving CO₂ neutrality by 2050, delivering on the commitments under the Paris Agreement. The European Green Deal is the overarching strategy implemented by more than fifteen new laws or changes to existing legislation, the so-called 'Fit for 55' package. The goal is to reduce net greenhouse gas emissions by at least 55 % by 2030, compared to 1990 levels.

The 'Fit for 55' package² establishes the CBAM together with changes to the current EU Emissions Trading System (ETS). The CBAM should equalize the carbon price between domestic and foreign products.

In accordance with the applicable legislative procedure, the European Commission put forward a draft which was discussed by the European Parliament (EP) and the 27 Member States in the Council. The draft was welcomed by the EP's Environment, Public Health and Food Safety Committee (ENVI) but the EP rejected the proposal as not ambitious enough. It took several months to find a compromise.

Historical and legal context

The EU has an Emissions Trading System (ETS)³ for more than fifteen years and CBAM is designed to function in parallel with this system, complementing it for imported goods.

The ETS puts a cap on the amount of greenhouse gases companies are allowed to emit. Within the cap it is possible to buy emission allowances that can be traded with. Some of the allowances are auctioned, however, the rest of the allowances are given for free by the European Commission to certain sectors at risk of carbon leakage.

Carbon leakage refers to the problem of companies relocating their production offshore, to countries with fewer environmental protection. CBAM addresses this issue, so that EU efforts to reduce greenhouse gas emissions are not undermined by production shifts causing increased emissions in non-European countries or by importing more CO₂-intensive products.

Even without counting the emissions caused by imports, the EU accounts for around 8 % of global carbon dioxide emissions. It would be counterproductive and against the objective of the Paris Agreement to decrease emissions in the EU while importing more carbon-intensive products from non-EU countries.

How the CBAM works

Under the CBAM, carbon pricing is done through the instrument of CBAM certificates, similar to ETS allowances. "CBAM certificate" means a certificate in elec-tronic format corresponding to one ton of embedded emissions in goods. Importers of certain energy-intensive goods must buy CBAM certificates to be allowed to import those goods into the EU. The required number of CBAM certificates corresponds to the total embedded emissions of the imported goods.

If a company has already paid a CO₂ price for its emissions in the country of origin, Article 9 of the Regulation provides for the possibility of offsetting against the number of CBAM certificates to be surrendered.

According to Art. 2 of the Regulation, third countries can also apply for an exemption from the CBAM if they have an equivalent carbon pricing mechanism or if there is a link with EU emissions trading system. Imports of goods from these third countries are then outside the scope of the Regulation. This already applies to goods originating in Iceland, Liechtenstein, Norway and Switzerland.

Such a linkage could also be considered in the future between the EU and the UK. Following the UK's withdrawal from the European Union, the UK has introduced its own emissions trading scheme. Currently, the UK and the EU are thinking about linking their emission trading schemes. Indeed, a final decision has not yet been made.

Under the ETS free emission allowances are to be phased out for some EU producers and the product scope of the ETS and CBAM shall converge. First, the allocation of free ETS allowances will be phased out from 2026 and completely discontinued from 2034. In addition, the scope of the ETS will also be extended to aviation and shipping from 2024, and to road transport and buildings from 2027. For the aviation sector, no more free certificates will be made available from 2026. Moreover, a shortage of allowances is planned to increase the prices for emission allowances according to the principles of the market mechanism.

CBAM transition phase

The CBAM Regulation is applicable since 1 October 2023. Articles 32 et seq. of Regulation (EU) 2023/956 provide for a gradual introduction. Under EU law, the legal basis of the CBAM is Article 192 para. 1 of the Treaty on the Functioning of the EU (TFEU), which allows the Union to act to achieve the environmental and climate objectives specified in Article 191 para. 1 TFEU.

CBAM started with importer reporting obligations in October 2023. Companies must now request access to the CBAM Transition Registry to submit quarterly reports. Under a European implementing regulation adopted in August⁴, companies must report for the first time by the end of January 2024. Failure to do so will result in penalties between €10 and €50 for each ton of unreported emissions. The actual penalty will be determined pursuant to Art. 16 para. 3 of the Implementing Regulation and can increase if the duration of non-reporting exceeds six months.

The information required in the report includes, in particular, the quantity of goods imported in tons, the total amount of direct and indirect CO₂ emissions per ton of each type of goods, and the CO₂ price paid for the imported goods in the country of origin, if any.

The submitted report can be modified until two months after the end of the relevant reporting quarter. For the first two reporting periods, a modification is possible until 31 July 2024.

In principle, the reporting obligation rests on the importer within the EU of the CBAM goods. However, the importer can transfer the reporting obligation to an indirect customs representative (e.g., the transport company) with consent. Furthermore, the reporting obligation applies directly to the indirect customs representative when the importer is located outside the EU.

CBAM fully effective starting 2026

Once CBAM is fully effective starting 1 January 2026, both EU and non-EU companies importing goods into the EU subject to CBAM will be required to apply for the status of authorised CBAM declarant and purchase CBAM certificates. The price of CBAM certificates is calculated based on the weekly average auction price of EU-ETS allowances, expressed in €/ton of carbon dioxide emitted. If an EU importer can prove that it has already been paid a carbon price during the production of the imported good, the importer will only have to pay the difference between the amount paid and the price of a CBAM-certificate.

Economic consequences and legal issues

As regards the economic consequences in the EU, the emissions-intensive industry considers that the lack of relief of the ETS burden for exports with the simultaneous expiry of the free allocation of certificates leads to imbalance and the increased risk of relocation of industries. While EU-based manufacturers of emission-intensive raw materials would be protected from imports originating in countries with lower carbon dioxide prices, the export of emission-intensive raw materials from the Union would hardly be economically viable, as the production costs would no longer be competitive in international comparison without free allocation of allowances. The U.S. Inflation Reduction Act (IRA) of August 2022 has raised additional concerns about a new subsidy race as well as a debate about the competitiveness of the European Union.

With respect to political considerations, several countries have already voiced their concerns, ranging from CBAM violating trade agreements to decrying it as blatant protectionism. Brazil, South Africa, India and China have stressed the negative implications for developing countries.

In particular, many concerns have been voiced about the compatibility of CBAM with international law. However, a CBAM compatible with the General Agreement on Tariffs and Trade (GATT) is not per se impossible and could be justified on environmental grounds. It could qualify as a border adjustable internal measure under GATT Article III or, if found to be discriminatory, could be justified under the general exceptions of GATT Article XX, relating to the conservation of ex-haustible natural resources (GATT Article XX(g)) or necessity to protect human, animal or plant life or health (GATT Article XX (b)).

Upcoming steps

To fulfil the reporting obligations, companies must first check and identify whether and which imported goods are subject to CBAM. Decisive are the CN codes of the respective goods listed in Annex I of the Regulation, and further guidance is given with sectoral factsheets.⁵

In a second step, importers must obtain all CBAM-related information from their suppliers. The Taxation and Customs Union Directorate-General (TAXUD) published guidance documents for importers in the EU and their suppliers outside the EU, together with templates.⁶

The contractual transfer of the reporting obligation to an indirect customs representative and the related contractual hedging of risks (e.g., in relation to late or inaccurate reporting) must be considered.

If there is an own reporting obligation, access to the CBAM Transitional Registry must be requested.
The quarterly reports must then be completed and submitted no later than one month after the end of the quarter in question, first time at the end of January 2024. If the required information is not yet available, the respective importer may use default values made available and published by European Commission for the transitional period until 31 July 2024.

Prof. Dr Rainer Bierwagen
Gábor Báthory

¹ Regulation (EU) 2023/956 of the European Parliament and of the Council of 10 May 2023 establishing a carbon border adjustment mechanism, http://data.europa.eu/eli/reg/2023/956/oj and Commission Implementing Regulation (EU) 2023/1773 of 17 August 2023 laying down the rules for the application of Regulation (EU) 2023/956 of the European Parliament and of the Council as regards reporting obligations for the purposes of the carbon border adjustment mechanism during the transitional period, http://data.europa.eu/eli/reg_impl/2023/1773/oj
² See European Commission, COM/2021/550, 14 July 2021
³ See https://climate.ec.europa.eu/eu-action/eu-emissions-trading-system-eu-ets_en
⁴ Commission Implementing Regulation (EU) 2023/1773, http://data.europa.eu/eli/reg_impl/2023/1773/oj
⁵ See https://taxation-customs.ec.europa.eu/carbon-border-adjustment-mechanism/cbam-sectoral-factsheets_en
⁶ See https://taxation-customs.ec.europa.eu/carbon-border-adjustment-mechanism_en

The Kupferzell battery storage facility is the first of the so-called "grid booster" projects with which the German transmission grid operators intend to counteract overloads in the transmission grid to ensure a stable and permanent power supply.

Advisor to TransnetBW GmbH:
ADVANT Beiten: Dr Christian Ulrich Wolf (Project Agreements, Hamburg); Stephan Rechten; Max Stanko (both Procurement Law, both Berlin); Maren Dedert (Project Agreements, Hamburg) and Sebastian Berg (Energy Law, Berlin).

Inhouse Legal: Sonja Köhler; Dr Uwe-Michael Voigt; Dr Sascha Pelka

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