No entitlement to first-come, first-served: Higher Regional Court of Düsseldorf confirms grid operators’ discretion to change the allocation procedure for grid connection capacity

Julia Scheibler is co-author of this post.

Higher Regional Court of Düsseldorf, decision of 4 November 2026, VI-5 Kart 4/26 [V]

PwC Legal successfully represented Stromnetz Berlin GmbH (Stromnetz Berlin) in proceedings before the Higher Regional Court of Düsseldorf. By decision of 26 May 2025 (BK6-25-122), Ruling Chamber 6 of the Federal Network Agency (Bundesnetzagentur) had rejected the appellant’s application for special abuse proceedings against Stromnetz Berlin under section 31 of the German Energy Industry Act (Energiewirtschaftsgesetz, EnWG); the 5th Antitrust Division of the Higher Regional Court of Düsseldorf has now also dismissed the appeal brought against that decision. In July 2024, Stromnetz Berlin had switched the procedure for allocating grid connection capacity from the first-come, first-served principle to an apportionment procedure (Repartierung) based on a per capita model, applicable to connection requests for capacities exceeding 3.5 MVA that had not been complete by 31 December 2023. The appellant, which according to its own statements is planning to build a data centre, applied for an order requiring Stromnetz Berlin to continue processing its grid connection request on a first-come, first-served basis.

The Court held that, in the absence of more specific requirements in section 17(1) sentence 1 EnWG, grid operators enjoy discretion in designing their connection conditions by virtue of their commercial freedom, provided that the chosen procedure is objectively justified, transparent in its design and applied in a non-discriminatory manner. This broad discretion covers not only the choice of allocation procedure as such, but also any subsequent change of procedure. The earliest point at which a grid operator can no longer change the allocation procedure on objective grounds is the issuing of a binding reservation or of a binding offer aimed at concluding a contract. The discretion also extends to determining the date from which the new procedure is to apply and the date on which this is to be announced. Neither the original choice of the first-come, first-served principle nor a confirmation of completeness gave rise to a legal entitlement, or even to legitimate expectations, that the appellant would continue to be allocated grid connection capacity on a first-come, first-served basis.

The Court held that the switch to the apportionment procedure had been necessary in view of the increasingly acute shortage of capacity and the risk that large grid connection applicants would block a non-discriminatory allocation of capacity over the coming years. Unlike pro rata apportionment, it reasoned, per capita apportionment eliminated the risk of capacity requests being inflated for strategic or speculative reasons in order to secure more capacity.

Nor, the Court found, had Stromnetz Berlin been obliged under section 4(1) sentence 2 of the Power Plant Grid Connection Ordinance (Kraftwerks-Netzanschlussverordnung, KraftNAV) to process the appellant's grid connection requests on a first-come, first-served basis, since the facility planned by the appellant was not a generating installation within the meaning of the KraftNAV. The storage units planned by the appellant, fell outside the scope of the KraftNAV from the outset, and this applied all the more following the amendment of the KraftNAV with effect from 24 December 2025.

This is the first decision in main proceedings in which a court has held that a shortage of capacity constitutes an objective reason for changing the procedure used to allocate connection capacity. The decision is not yet final; given the fundamental importance of the issues in dispute, the Court has granted leave to appeal on points of law to the Federal Court of Justice (Bundesgerichtshof).