If capacity in the electricity grid is in short supply, a grid operator is no longer required to allocate free connection capacity on a „first come, first served“ basis. It may switch to a procedure in which all applicants are treated equally – including, retrospectively, for applications that have already been submitted. This was ruled by the Higher Regional Court (OLG) Düsseldorf (decision of 4 November 2026, ref.: VI-5 Kart 4/26 [V]).

This is due to a change in policy at Stromnetz Berlin GmbH. The grid operator had long processed connection requests on a first-come, first-served basis: whoever submitted a complete application first was allocated capacity first. As the number of applications – particularly for data centres and other large consumers – now significantly exceeds the available capacity, Stromnetz Berlin introduced a allocation procedure in July 2024 for connection requests of 3.5 megavolt-amperes or more: Available capacity is distributed equally „on a per-applicant basis“ to all applicants once a year on a specific reference date. This applied retrospectively to all applications that had not yet been submitted in full by 1 January 2024.

The 5th Antitrust Division of the Higher Regional Court of Düsseldorf has ruled that this is lawful. Section 17(1) of the Energy Industry Act (EnWG) does not prescribe the procedure to be followed when allocating scarce capacity. The network operator therefore has a wide margin of discretion, provided that the procedure is objectively justified, transparent and non-discriminatory. This was the case here.
The decision is not yet final; given its significance as a matter of principle, the Higher Regional Court has granted leave to appeal to the Federal Court of Justice. The written grounds for the judgement have not yet been issued either.