22SEP

Germany bids capacity into a legal gap

3 min read

10:47UTC

Bundesnetzagentur opened Germany's first 4.5 GW StromVKG capacity auction on 21 July with bids due 8 September, before Brussels has cleared the scheme for state aid.

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Key takeaway

Germany opened 15-year capacity auctions on 21 July before Brussels cleared the subsidy scheme, risking clawback from 8 September.

Bundesnetzagentur (BNetzA), Germany's federal network regulator, opened the first 4.5 GW StromVKG capacity auction on 21 July, bids due 8 September ¹. StromVKG, the German capacity-market law, covers dispatchable gas and long-duration storage of ten hours or more on 15-year contracts. BNetzA opened it without EU state-aid clearance and without Berlin consulting Brussels first.

BNetzA had itself confirmed the clearance gap on 10 July , nine days before opening bids into it; the law had passed on 9 July with a 41% higher bid ceiling . BNetzA president Klaus Mueller said the auctions would run "as quickly and carefully as possible" ².

A gas plant that cannot clear on the spot spark needs a capacity payment to stay in the mix, and StromVKG backstops precisely the merchant-signal failure the German injection stall now documents. Fifteen-year commitments signed from 8 September carry clawback risk if the Commission later refuses clearance. Some counsel argue the scheme's levy-based financing may not involve state resources at all, which would place it outside Article 107 review and moot the pending-clearance risk entirely. Should the Commission instead judge the levy to draw on state resources, every contract awarded from 8 September falls back into Article 107 exposure.

Deep Analysis

In plain English

Germany wants gas-fired power plants and long-duration storage to be available even when the grid is under strain, so it is paying selected operators to be ready, a 'capacity market', funded through a surcharge added to network charges rather than general taxation. The EU normally has to check this kind of scheme in advance to make sure it doesn't unfairly favour German companies over rivals elsewhere in Europe, a process called state-aid clearance. Germany's regulator opened the first round of bidding for these contracts before that EU check was finished. Germany's legal argument is that because private grid operators, not the government directly, collect and pay out the money, the scheme falls outside the rules that require the check. Britain tried something similar in the 2010s and its scheme got frozen by a court for nearly two years once a legal challenge succeeded, which is the risk German bidders are now taking on.

Deep Analysis

Root Causes

BNetzA's own auction documentation, last revised 10 July, already flags the missing state-aid clearance, meaning the regulator opened bidding with the gap disclosed rather than overlooked. That sequencing choice rests on the PreussenElektra-line legal argument that TSO-administered surcharges are not state resources, a reading the Commission has not confirmed for this specific scheme.

The deeper structural driver is timing pressure: StromVKG's 9 July Bundestag passage raised the bid ceiling 41% and left BNetzA with a legislative mandate to open the first tranche promptly, creating an incentive to proceed on the TSO's own legal reading rather than wait for a Commission process that, on the UK precedent, can run well over a year.

Escalation

Direction is toward eventual Commission scrutiny rather than away from it: BNetzA's own documentation flags the gap rather than disputing its existence, which typically precedes a formal Commission inquiry once a competitor or third party lodges a complaint, as happened in the UK case.

What could happen next?

Risk
Capacity contracts awarded before Commission clearance carry retroactive clawback exposure if the surcharge is later found to be state aid, on the UK Tempus Energy precedent.
Long term · Reported
Consequence
Legal uncertainty is likely already priced into the auction's clearing level via the 41% bid-ceiling increase passed on 9 July.
Immediate · Reported
Precedent
A formal Commission inquiry, should one open, would likely follow the UK pattern of a mid-scheme suspension rather than blocking the mechanism outright.
Medium term · Suggested

Source Landscape

This story draws on neutral-leaning sources

Primary parallel: The UK capacity market ran auctions and paid out contracts from 2014 under a 2014 Commission clearance, until the General Court's October 2018 Tempus Energy ruling (T-793/14) annulled that clearance over inadequate assessment of demand-side response, forcing London to suspend new payments and secure a fresh, corrected clearance in 2019 before resuming, a near two-year gap between auction and settled legal footing.

Counter-parallel: Poland's and Italy's capacity mechanisms, both structured after the Commission's 2020 revised Capacity Remuneration Mechanism guidance, cleared without a comparable challenge, because both notified the Commission and secured approval before opening bidding rather than after. The difference in outcome tracks the difference in sequencing: StromVKG's 21 July opening without prior clearance follows the UK's pre-Tempus pattern rather than the post-2020 Polish or Italian one.

Bidders into the 4.5 GW tranche are pricing 15-year capacity contracts against a live legal contingency: if the Commission later finds the surcharge constitutes state aid and requires notification, contracts already awarded face clawback risk analogous to the UK's 2018-2019 suspension, where payments already committed had to be paused pending re-clearance.

Structurally, that risk is priced into the bid ceiling itself: StromVKG's 41% ceiling increase on 9 July gives bidders room to demand a premium for legal uncertainty that a pre-cleared scheme would not need to carry, meaning the auction's own clearing price is likely to run higher than an equivalent, already-cleared capacity mechanism elsewhere in the EU.

Consensus view: The StromVKG funding structure, a surcharge collected by the German transmission system operators and paid out to successful capacity bidders, sits close to the line the European Court of Justice drew in PreussenElektra (Case C-379/98, 2001): funds administered by TSOs under statutory obligation, rather than routed through the federal budget, can still count as 'state resources' under Article 107(1) TFEU if the state retains sufficient control over how the money is used.

Counter-view: Germany's own government position holds the PreussenElektra line the other way: because the surcharge is collected and disbursed by privately-organised TSOs without funds ever passing through a state account, it falls outside Article 107(1) entirely, which is the legal basis BNetzA cited for opening the auction without waiting on Commission clearance.

Key tension: Whether TSO administration of a mandatory statutory surcharge is enough state control to trigger the state-resources test, a question the Commission has not yet ruled on for this specific StromVKG structure.

Sources:ESS News

Mentions:Bundesnetzagentur →StromVKG →Klaus Mueller →European Commission →London →Italy →Poland →Brussels →Berlin →Germany →

First Reported In

Update #29 · Germany's caverns stop buying gas

ESS News· 23 Jul 2026

Read original →

Causes and effects

Caused by

Berlin's 9 GW auctions await Brussels

BNetzA confirmed the state-aid clearance gap on 10 July, nine days before opening bids into it.

Occurred 9 Jul 2026

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StromVKG passes, bid ceiling up 41%

StromVKG's 9 July passage with a 41% higher ceiling set up the 21 July auction opening.

Occurred 9 Jul 2026

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This Event

Germany bids capacity into a legal gap

Opening 15-year capacity contracts on 21 July without EU state-aid clearance exposes every award from 8 September to clawback if Brussels later refuses the scheme.

Led to

CRE lets grids buy local flexibility

CRE's flexibility-market approval answers the same dispatchable-capacity question as Germany's centralised StromVKG auction, in the opposite direction.

Occurred 29 Jul 2026

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