Safeguarding the Energiewende: bne Issues Urgent Call for Clarity in Critical Infrastructure Regulations

BERLIN – As Germany accelerates its transition toward a decentralized, renewable energy-based power system, a new regulatory challenge has emerged at the intersection of national security and climate policy. The Association of Energy Market Innovators (bne) has issued a comprehensive statement regarding the draft ordinance for the Critical Infrastructure Resilience Umbrella Act (KRITIS-DachG). Dated May 26, 2026, the bne’s response highlights significant technical and administrative hurdles that could inadvertently stifle the growth of renewable energy projects.

While the bne supports the overarching goal of protecting vital infrastructure from physical and cyber threats, it warns that the current draft of the KritisV (Kritisverordnung) contains "ambiguities that create investment uncertainty." The association is calling for precise definitions regarding threshold calculations for hybrid plants, the elimination of "double regulation" for connection facilities, and a correction of technical unit inconsistencies that could unfairly penalize smaller operators.

Main Facts: The Intersection of Security and Sustainability

The KRITIS-DachG (Critical Infrastructure Resilience Umbrella Act) represents Germany’s legislative effort to implement the European Union’s CER (Critical Entities Resilience) Directive. Its primary objective is to enhance the physical resilience of "critical" assets—those whose failure would cause significant disruption to public order or the economy. For the energy sector, this means power plants, storage systems, and grid connections are now under intense scrutiny.

The bne’s critique centers on four primary pillars of the draft ordinance:

1. Regulatory Fog: While the draft identifies which plants are "critical," it fails to define the actual obligations (risk analyses, resilience plans, and audits).
2. The "Hybrid" Calculation Trap: The draft remains vague on how to calculate power thresholds for "co-location" sites (e.g., a solar farm paired with a battery).
3. Redundant Oversight: A proposed new category for "connection facilities" (Category 1.1.3) risks forcing operators to register the same asset twice—once as a power plant and once as a substation.
4. Technical Inconsistency: A discrepancy between "Active Power" (MW) and "Apparent Power" (MVA) in the legal text could lead to smaller plants being classified as "critical" due to a mathematical technicality.

Robert Busch, Managing Director of the bne, emphasized that for renewable energy to remain competitive, the administrative burden must be proportional to the actual risk. "We need rules that are practical for the world of 2026, not rules that treat every decentralized solar farm like a massive coal-fired power station," the association suggests.

Chronology: The Road to the 2026 KritisV Draft

The path toward the current regulatory framework has been shaped by increasing geopolitical tensions and the vulnerability of interconnected energy markets.

• 2022: The EU Mandate: Following the invasion of Ukraine and the sabotage of the Nord Stream pipelines, the European Commission fast-tracked the CER Directive and the NIS2 Directive. Member states were tasked with creating national frameworks to protect "critical entities."
• 2024: The Umbrella Act (KRITIS-DachG): The German federal government introduced the KRITIS-Dachgesetz. Unlike previous laws that focused heavily on IT security (BSI Act), this "umbrella" act focuses on physical protection—fencing, surveillance, disaster recovery, and personnel vetting.
• Late 2025: Sectoral Specifics: The Ministry of the Interior (BMI), in coordination with the Ministry for Economic Affairs and Climate Action (BMWK), began drafting the specific "KritisV" (Ordinance) to set the "thresholds" (e.g., how many Megawatts make a plant "critical").
• May 26, 2026: The bne Response: The bne officially submitted its position on the draft, marking a critical phase in the public consultation process. The association represents "new energy" players—those focused on PV, wind, and storage rather than legacy fossil fuel infrastructure.
• Looking Ahead: The ordinance is expected to be finalized by the end of 2026, with the first wave of mandatory "Resilience Plans" due from operators in 2027.

Supporting Data: The 104 MW Threshold and the "MVA" Problem

The bne’s statement is deeply rooted in the technical realities of electrical engineering. To understand the association’s concern, one must look at the specific metrics proposed in the ordinance.

The Threshold Calculation

The draft sets a threshold of 104 MW for power generation facilities to be considered "critical." However, modern energy parks are rarely just "one plant." They often feature "Co-location" (Solar + Storage) and "Overbuilding" (where more PV capacity is installed than the grid connection can technically handle, to maximize output during low-light hours).

The bne argues that the threshold should not be based on the "cumulative technical nominal capacity" of all components. Instead, it should reflect the legally or technically limited feed-in capacity at the grid connection point.

• Scenario: A site has 80 MW of Solar and a 40 MW Battery.
• Draft Interpretation: 120 MW total = Critical.
• bne Proposal: If the grid connection is limited to 90 MW, the site stays under the 104 MW threshold = Non-Critical.

The MVA vs. MW Inconsistency

Perhaps the most technical—yet impactful—critique involves the units of measurement. In the draft:

• Generation plants (Category 1.1.1) are measured in MW (Active Power).
• Connection facilities/substations (Category 1.1.3) are measured in MVA (Apparent Power).

In electrical engineering, Active Power (MW) is Apparent Power (MVA) multiplied by the Power Factor ($cos phi$). In Germany, a power factor of 0.9 is standard.

As the bne points out: 104 MVA $times$ 0.9 = 93.6 MW.

This creates a "valuation contradiction." A 98 MW solar plant would be exempt from the generation category (below 104 MW), but its own substation (109 MVA) would be classified as "critical" under the connection category. This would force a "non-critical" plant to comply with "critical" infrastructure laws simply because of the transformer’s technical rating.

Official Responses: Industry vs. Regulator

The bne has taken a proactive stance, representing the interests of hundreds of renewable energy developers and grid-scale storage operators. Their official position is one of "conditional support": they agree with the need for security but reject the "bureaucratic monster" they fear is being created.

The bne’s Core Demands:

• Avoid Double Counting: "Substations and connection lines that functionally and legally serve the operation of an already classified generation plant should not be separately captured under Category 1.1.3," the statement reads. Doing so would require separate registrations, separate risk analyses, and separate audits for the same physical asset.
• Limit Bureaucracy: The bne warns that because the "Resilience Standards" are not yet defined, companies are flying blind. They demand that future regulations limit administrative costs to the "absolute necessary minimum."
• Clarification on Units: The association suggests either expressing Category 1.1.3 in MW or adjusting the MVA threshold to 116 MVA to ensure it aligns with the 104 MW generation threshold.

The Government’s Perspective (Contextual):

While the Ministry of the Interior has not yet issued a formal rebuttal to the bne’s May 26th statement, the legislative intent is clear: the government views the power grid as increasingly "granular." In a world of decentralized energy, a failure at a 100 MW site is no longer a minor local issue; it is a systemic risk to grid stability. Regulators argue that "connection facilities" are often the weakest link in the chain, justifying their separate classification.

Implications: What is at Stake for the Energy Transition?

The outcome of this regulatory debate will have far-reaching consequences for Germany’s Energiewende.

1. The Cost of Compliance

If the bne’s concerns are ignored, the "Levelized Cost of Energy" (LCOE) for large-scale solar and storage could rise. Small-to-mid-sized developers may find the cost of specialized security personnel, 24/7 surveillance, and annual resilience audits prohibitive. This could lead to market consolidation, where only large utilities can afford to build projects near the 104 MW threshold.

2. Implementation Delays

Regulatory uncertainty is the enemy of investment. If developers do not know whether their 90 MW hybrid project will suddenly be classified as "critical infrastructure" due to a transformer rating, they may downsize projects to stay safely below any potential threshold. This "defensive downsizing" would result in a less efficient use of available land and grid capacity.

3. National Security vs. Grid Efficiency

The bne’s warning about "Double Erfassung" (Double Capture) highlights a potential efficiency crisis. If operators are buried in paperwork for redundant categories, their focus shifts from actual resilience (improving physical security) to documentary resilience (filling out forms). This paradox could leave the grid more vulnerable, not less.

4. Setting a Precedent for NIS2

The KRITIS-DachG is the physical sibling to the NIS2 IT security directive. How Germany handles the technical definitions in the energy sector will likely serve as a blueprint for other sectors like water, transport, and food supply. A failure to harmonize technical units (MW vs. MVA) now could lead to a "patchwork" of inconsistent regulations across the entire German economy.

Conclusion

The bne’s statement serves as a technical "reality check" for a government focused on national security. As the legislative process continues throughout 2026, the energy industry will be watching closely to see if the Ministry of the Interior adopts a more "praxistauglich" (practically feasible) approach. For the bne, the goal is clear: protect the grid, but don’t paralyze the transition to a greener future with the weight of its own protection.