The general ruling by which the Federal Office for Information Security (Bundesamt für die Sicherheit in der Informationstechnik – BSI) had established the technical availability and given the go-ahead for the mandatory installation of smart metering systems at the beginning of 2020 is “likely to be unlawful”. This is what the Higher Regional Court (OVG) of North Rhine-Westphalia decided on the emergency motion on 05/03/2021. Becker Büttner Held (BBH) represented around 50 metering point operators in this case.

The rollout of smart metering systems was finally set into motion by the BSI’s ruling establishing their technical availability at the beginning of 2020. The certification of three metering systems meant that the formal criteria of the Metering Point Operation Act (Messstellenbetriebsgesetz – MsbG) were met. However: the systems do not meet the technical requirements set out by the Act. That was why around 50 metering point operators, with the help of BBH, decided to take action against the mandatory installation of smart meters. And they were successful: The Higher Administrative Court (OVG) of North Rhine-Westphalia has now put a stop to the installation of metering systems which fall short of the statutory standards.

The court held that the BSI did not provide for specific functionalities which smart metering systems would have to fulfil under the Metering Point Operation Act. According to the court the BSI’s scope of responsibility to adjust technical guidelines to the technological progress does not extend to BSI choosing to fall below statutory minimum requirements in doing so.

BBH partner Dr. Jost Eder, who represented the clients in the court proceedings, states: “This decision establishes a clear framework for the rollout of smart metering systems: only if these deliver their full benefits, the BSI may order their mandatory installation.” BBH lawyer and partner counsel Dr. Florian Wagner adds: “The significance of the decision goes far beyond the current proceedings: Even with a predominantly technical nature of the implementation of laws, the authorities’ discretionary power is not boundless.”

Becker Büttner Held is a leading provider of advisory services for energy and infrastructure companies and their customers. Energy and supply companies, particularly public utilities, municipalities and local authorities, industrial companies and international groups are among its core clients. BBH advises these and many other companies and organisations in all legal matters and also assists them with business and strategic advice.

Contact:
Prof. Dr. Ines Zenke                                                  
Lawyer (Rechtsanwältin), Partner
Phone +49 (0)30 611 28 40 - 179                                  
ines.zenke@bbh-online.de                                    

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