Legislature drives energy transition by giving privileged status to BESS in unzoned areas.
Latest developments
On 13 November 2025, the Bundestag adopted an extension to section 35(1) German Building Code (Baugesetzbuch, “BauGB”) as part of the amendments to the German Energy Industry Act (Energiewirtschaftsgesetz, “EnWG”). Under the new section 35(1), no. 11 BauGB, battery storage systems in unzoned areas will now be recognised as independent privileged developments provided they have a storage capacity of at least 1 megawatt hour (MWh). The move is aimed at simplifying approval procedures and providing greater planning certainty, thereby accelerating the expansion of storage infrastructure as a key technology for the energy transition.
Background and legislative procedure
In its original form, the bill to amend the EnWG did not contain any construction-planning related provisions for battery storage systems in unzoned areas. The idea of granting them specific privileged status was only raised and put forward for discussion – partly in response to suggestions from the Bundesrat – shortly before the end of the legislative process, with an amendment proposal by the parliamentary groups for a new no. 11 under section 35(1) BauGB proving decisive. The provision deliberately omits any of the additional site criteria or area restrictions commonly discussed in relation to privileged status in the past.
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.
Regulatory scope, legal implications and how they fit with other considerations
The privileged status applies to storage capacities of at least 1 MWh and simplifies approval in unzoned areas. This is because the new no. 11 of section 35 BauGB unambiguously confers privileged status to battery storage systems and, in so doing, shortens the approval procedure while increasing planning and investment security. But this does not mean that projects are automatically permitted: 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.
Additional impetus from energy law
In addition to granting privileged status under construction planning law, the energy-industry component of the package amends section 11c EnWG to categorise energy storage systems as projects of overriding public interest). 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
Falling technology prices have already fuelled a growing pipeline of battery-storage projects. The new privileged status will help sustain this trend, as it can reduce approval risk and shorten decision-making times. The legally established “overriding public interest” in battery storage systems will significantly strengthen their position in the approval procedure.
At the same time, network operators are facing an increase in connection requests. To this end, further legislative measures have been announced for the first quarter of 2026 to improve and digitalise the grid connection procedure. The aim is to make more efficient use of scarce connection capacity, which will benefit battery storage systems in particular.
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