Part 3: Energy Efficiency Act (EnEfG) – Bundestag decides on draft bill
The Energy Efficiency Act was passed by the Bundestag last Thursday, 21 September 2023. Originally, the vote in the Bundestag was scheduled for 7 July 2023. However, only 241 members of the Bundestag were present instead of the required 369, so it did not have a quorum. The vote on the Energy Efficiency Act was then postponed until September due to the parliamentary summer recess. With the now successful passage of the EnEfG, the legislature aims not only to improve energy efficiency and security of supply, but also to curb global climate change. Now that the law has been passed by the Bundestag, it will be forwarded to the Bundesrat. If the Bundesrat also approves, the law will be executed by the Federal President and promulgated in the Federal Law Gazette. The law enters into force on the day after promulgation.
The original version of the draft bill (EnEfG-E) can be found as Drucksache 20/6872 available here. Changes to the draft bill emerged from the draft resolution of the Committee for Climate Protection and Energy, available here as Drucksache 20/7632, some of which will have considerable effects, especially for operators of data centers. The most important changes are briefly described below and complement our previous articles (Part 1 and Part 2).
- Definition of data centers
- Energy or environmental management systems
- Power Usage Effectiveness (PUE)
- Minimum inlet temperature of air cooling
- Energy efficiency register for data centers
- Information and consultation obligations
- Waste heat recovery
In Section 1 EnEfG the legislator now makes it clear that the statutory definition of energy efficiency targets in relation to final and primary energy consumption for the whole of Germany does not introduce any limitation of individual consumption by companies or private households. This reflects the fear expressed by many critics in recent months that individual energy consumption is to be actively regulated.
The authoritative legal definition of “data center” was once again adapted. According to Section 3 No. 24 EnEfG, a data center is a structure or group of structures for the centralized housing, centralized interconnection and centralized operation of information technology and network telecommunications equipment for the provision of data storage, data processing and data transport services. Also considered a data center are all facilities and infrastructure for power distribution, environmental control, and the level of resilience and security required to provide the desired service availability. However, the additional requirement of a non-redundant electrical rating of at least 300 kW applies to both cases. In the earlier draft, the corresponding limit was still 200 kW.
Based on the amendments to the draft resolution of the Committee for Climate Protection and Energy, data centers that serve to connect or link other data centers and that predominantly do not process data (network nodes) are also excluded from the definition of “data center” within the meaning of the EnEfG.
Previously, companies with an average total annual energy consumption within the last three completed calendar years of more than 15 GwH were to be obliged to set up an energy or environmental management system. According to the adapted Section 8 (1) EnEfG, this obligation should already apply to companies with a total annual energy consumption of 7.5 GWh.
There were also some changes to the more specific regulations on energy and environmental management systems in data centers. These can be found in Section 12 EnEfG. Notwithstanding the general provisions of Section 8 EnEfG, data center operators are required to establish an energy or environmental management system by 1 July 2025 .
For data centers with a non-redundant rated connected load of 1 MW or more and for data centers owned by or operated for public bodies with a non-redundant rated connected load of 300 kW or more, there will be an obligation to validate or certify the energy or environmental management system from 1 January 2026. Again, the limit for the nominal connected load for public data centers was previously 200 kW. In addition, the obligation to validate or certify was originally to take effect from 1 January 2025.
Data centers whose recycled energy is taken up for use via a heating network in a proportion of at least 50% are exempt from the obligation to set up an energy or environmental management system if their average annual total energy consumption does not exceed the threshold of 7.5 GWh. Previously, this exemption was to apply up to a total annual energy consumption of 15 GWh.
The obligation to establish an energy or environmental management system also applies to operators of information technology. For a non-redundant nominal connected load of 500 kilowatts or more, there is an obligation to validate or certify the system for these from 1 January 2026. This was originally planned for 2025. For operators of information technology on behalf of public bodies, this obligation already exists from a non-redundant nominal connected load of 300 kW; previously, the limit was 200 kW.
The requirements for the energy consumption effectiveness to be achieved by data centers have also been increased - probably the most far-reaching change in the new law. The original draft law stipulated the requirement of an energy consumption effectiveness of less than or equal to 1.3 for data centers commencing operation on or after 1 July 2026. The adopted EnEfG requires an energy consumption effectiveness of less than or equal to 1.2. It is questionable what “commence operations” means in this context. A legal definition of the term does not exist; likewise, there is no generally accepted understanding of the term. However, the explanatory memorandum to the law at least explains that “commissioning” means the initial start-up and not a mere expansion of the data center.
The regulations envisaged in the original draft with regard to the minimum inlet temperature of air cooling, which were initially to be found in Section 11 (5) to (7) EnEfG-E, have been dropped completely. According to the explanatory memorandum to the law, the operators are to be left to decide which technical options and optimizations are to be used.
It was already planned that the German government would set up an energy efficiency register for data centers in which the information transmitted by the data centers would be stored. According to the revised Section 14 (1) EnEfG, the information is also to be transferred to a European database on data centers. While the publication of the information provided by the German government as provided for in the EnEfG-E is no longer required, the operators of data centers themselves are now subject to publication obligations pursuant to Section 13 EnEfG.
The information and consultation obligations for data center operators initially provided for in Section 15 (1) EnEfG-E have been simplified. Thus, from 1 January 2024, operators of data centers that offer services to customers will only be required to present the energy consumption directly attributable to the customer per year to this customer. The requirement to present the energy consumption of the technical infrastructure of the data center to be allocated in accordance with the consumption shares will no longer apply. Separate requirements for co-location operators have been dropped.
The provisions of Section 16 (1) EnEfG on the avoidance and use of waste heat by companies were slightly weakened compared to the draft bill in that the proportion of technically unavoidable waste heat is to be reduced, but only to the extent that this is possible and reasonable. Within the framework of reasonableness, technical, economic and operational concerns are to be taken into account.