According to lawyers, forced throttling for e-cars or heat pumps "against applicable law"

It was already clear that there would be a show by the lobbyists before the Federal Network Agency (BNetzA) had even started the hearing process on so-called peak smoothing. It is already the second attempt to set rules for a problem of the future: If more and more households buy heat pumps and private electric car charging stations, the power grid will reach the limits of its resilience in many places.

Above all, if everyone wants to connect their electric car to the wall box at the same time at certain peak times, the capacity limit in the distribution networks should be reached quickly. In order to prevent overloads or even power failures occurring in such phases, the power for users of electric cars and heat pumps - in official German these are referred to as controllable consumption units - should be throttled during these times.

According to Section 14a of the Energy Industry Act, the Federal Network Agency sets out binding rules for this. She has already presented her own plans for this in a key issues paper, and associations and interest groups had until January 27 to submit their statements.

As expected, the plans met with little enthusiasm, especially in the automotive industry. The industry fears that if customers no longer have the option of charging their car at any time, the attractiveness of electric cars would drop significantly.

It is true that many e-car owners are already making agreements with their suppliers that they charge more slowly at peak times in order to avoid overloading. But in the future, according to the ideas of the Federal Network Agency, there should no longer be a choice, and throttling would become mandatory.

However, according to a legal statement commissioned by a company from the automotive industry, such a regulation on compulsory throttling should also be illegal. The eight-page “short note” from the law firm Assmann Pfeiffer is available to WELT.

The law firm with the slogan "pioneering in the energy market" comes to a clear conclusion: "A design of the paragraph 14a mechanism that provides for a blanket participation obligation of so-called controllable consumers is likely to violate applicable law," write the lawyers in the "confidential “ marked paper.

The Federal Network Agency wants to proceed in two stages: From next year until the end of 2028, a transitional regulation will initially take effect. During this time, the power should not only be throttled in the phases when there is actually a risk of overloading the network.

Instead, a so-called static control is planned, in which the power is reduced at certain times when a high load is expected based on experience.

According to the Federal Network Agency, this transitional phase is necessary because the networks have so far lacked digital measurement technology in order to be able to determine when there is a risk of overloading. Critics therefore speak of "throttling by timer" during this transitional period.

The so-called target model, in which dynamic control is then to take effect, should not take effect until 2029. This means that the electricity would only be throttled if the capacities of the grid absolutely required it.

The lawyers commissioned by the automobile company come to the conclusion that both the transitional regulation and the target model are illegal in the form planned so far. "An obligation to participate with regard to the transitional regulation (until 2029) is likely to be both unnecessary and inappropriate and disproportionate, since a significant level of intervention is likely to be offset by minimal benefits for the networks," the note says.

Among other things, some electricity customers would be worse off than others as a result of the planned regulation: "In future, consumers with heat pumps, wall boxes or battery storage systems would have to expect to be worse off than, for example, consumers with saunas, pools or other consumers not covered by paragraph 14a EnWG. However, according to EU law, network access must be non-discriminatory.

There are also significantly better ways to control electricity demand that would interfere less deeply with consumer rights. Above all, so-called “market-based mechanisms” would first have to be used as incentives.

What sounds technical would simply be a variable electricity price. Those who voluntarily do not charge or reduce performance during particularly critical times should be rewarded with a lower network fee.

So far, however, the key points of the Federal Network Agency only provide for a slightly lower network fee in return for the obligation to throttle charging. And for all customers at all times - regardless of whether their performance was actually throttled or not.

The German Association of the Automotive Industry (VDA) concedes that it is "understandable and undisputed" that "network operators must have appropriate instruments for controlling controllable consumption devices." Ultimately, acute threats to network stability must be averted.

"Direct control interventions by the network operator, which can significantly restrict customer convenience, may only be used as a last resort, i.e. specifically in the event of unavoidable network bottlenecks," says the VDA statement to the Federal Network Agency. "From the point of view of the VDA, time-variable network tariffs that depend on the network status are best suited to ensure efficient network-oriented control of controllable consumption devices."

In their opinion, the lawyers come to the conclusion that simply being forced to participate in the throttling could be disproportionate and thus also a violation of the fundamental rights of the consumers concerned, since their property rights are being massively encroached upon by not using their heat pumps and electric cars in the can use to the full extent.

The rights of car manufacturers would also be curtailed because their products would become less attractive due to the loss of comfort. "As a result, the compulsory participation of taxable consumers, which the BNetzA is considering as a contribution to the consultation, is likely to be disproportionate at this point in time, both with regard to the transition period and the target period, and is therefore open to challenge in court," write the lawyers.

The lobbyists' struggle for the final regulation is likely to continue for a few more months. Because while the car industry is criticizing the plans, the Federal Network Agency also has supporters.

They come mainly from the Federal Association of Energy and Water Management (BDEW). Among other things, the network operators are organized there, and they insist on the introduction of mandatory throttling. If they didn't exist, they would either have to expand their networks faster - and spend more money for it, or other e-car and heat pump customers would have to be refused connection in order to keep the existing network stable.

By the end of the year, a binding regulation is to be laid down by the BNetzA. Until then, many discussions will take place.

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