Legislature drives energy transition by giving privileged status to battery storage systems in unzoned areas.
Latest developments
On 4 December 2025, the Bundestag approved the Geothermal Energy Acceleration Act (Geothermie-Beschleunigungsgesetz, “GeoBG”) (Bundestag document 21/3101), creating two new privilege categories for battery energy storage systems (BESS) in unzoned areas as defined in construction planning law. Under section 35(1), no. 11 Building Code (Baugesetzbuch, “BauGB”), battery storage systems in unzoned areas will now be recognised as independent, privileged projects if they are spatially and functionally linked to an existing renewable energy plant. Section 35(1), no. 12 BauGB introduces privileged status for all other battery storage systems, provided that additional requirements are met (including minimum distance, minimum output and maximum land area).
Background and legislative procedure
The privileged status of battery storage systems in unzoned areas has long been contentious. The amendments to the Energy Industry Act (Energiewirtschaftsgesetz, “EnWG”) adopted on 13 November 2025 (Bundestag document 21/2793) established a new privileged status for all battery storage systems with a storage capacity of at least 1 megawatt hour (MWh). The new GeoBG – approved only shortly thereafter – has now restricted this status, however.
Legal position to date and practice of the authorities
Up to now, battery storage systems have not explicitly had privileged status in unzoned areas. In certain circumstances, there were good legal arguments for classifying them as installations “for the public supply of electricity” under section 35(1), no. 3 BauGB. The industry has argued that stationary battery storage systems that are continuously operated to serve the grid and not as stand-alone or self-consumption facilities can be seen to function as part of the energy infrastructure and therefore as eligible for privileged status in unzoned areas. The counterargument is that battery storage systems are not “site specific” (a construction-planning law term referring to the need to locate a project at a specific site because the project’s function, technical requirements or natural conditions make that site necessary), leaving no compelling need for them to be constructed in unzoned areas. However, there was no uniform practice by the authorities, leading to legal uncertainty and widely divergent regional decisions. In this context, the explanatory memorandum to the bill refers to the decision of the Federal Administrative Court from 1994 (4 C 20/93), which triggered the legislation giving wind turbines privileged status in 1997.
Requirements for privileged status, legal implications and how they fit with other considerations
Section 35(1), no. 11 BauGB clearly classifies battery storage systems that are spatially and functionally linked to an existing renewable energy plant as privileged projects. This privileged status therefore facilitates the co-location of battery storage systems and renewable energy plants and can be used to leverage further potential in this area. Co-located battery storage systems could also benefit from easier access to grid connection based on flexible grid connection agreements (Cable pooling now an option for renewable energy grid connections in Germany | Gleiss Lutz).
Section 35(1), no. 12 BauGB grants privileged status to other battery storage systems, provided that the following cumulative requirements are met:
- Minimum distance: The project must be located no more than 200 metres from the property boundary of a substation (from extra-high voltage to high voltage, or from high voltage to medium voltage) or from the property boundary of an operational or decommissioned power plant with a capacity of 50 megawatts or more.
- Minimum output: The battery storage system must have a minimum rated output of 4 megawatts.
- Maximum land area: The combined area occupied by all battery storage systems approved under no. 12 within the same municipality (including the associated ancillary facilities and open spaces) must not exceed 0.5% of the municipal area or 50,000 m², whichever is lower.
That does not mean that projects are automatically permitted, however: The requirements laid down in section 35 BauGB – including other public concerns such as fire safety, environmental and species protection, emissions control, and grid connection – must still be adhered to and may restrict projects. The privileged status does, however, significantly strengthen the baseline construction-planning position. The specified criteria will still need to be tested in practice and this will inevitably raise some questions of interpretation that will have to be clarified with the municipalities (and possibly in court).
Additional impetus from energy law
In addition to granting privileged status under construction planning law, the amendments to the EnWG categorise energy storage systems as projects of overriding public interest (section 11c EnWG). Experience with the corresponding provision for renewable energy plants (section 2 Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz, “EEG”) shows that such a status significantly strengthens their position vis-à-vis competing public interests and can facilitate exceptions and exemptions. The legally established public interest will also significantly strengthen the position of battery storage systems, particularly when weighing the protected interests under section 35 BauGB. The way that authorities and courts apply section 2 EEG illustrates the considerable importance they attach to this principle (see German-language article: Erneuerbare Energien als „Freiheitsenergien“ | Gleiss Lutz).
Conclusion and outlook
Granting privileged status to battery storage systems that are spatially and functionally linked to an existing renewable energy plant is likely to reduce approval risks and shorten the decision-making process. However, industry representatives argue that the criteria for other battery storage systems could be overly restrictive, noting in particular that the 200-metre minimum distance rule could lead to conflicts over land use. They therefore expect that further adjustments to the law will follow.
At the same time, network operators are facing an increase in connection requests. To this end, further legislative measures have been announced to improve and digitalise the grid connection procedure. The aim is to make more efficient use of scarce connection capacity, which is likely to benefit battery storage systems in particular.
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