Part 2: Energy Efficiency Act – New legal requirements for data centres

The Federal Ministry for Economic Affairs and Climate Protection recently presented a draft bill for the new Energy Efficiency Act (EnEfG-E), which aims to increase energy efficiency. The draft was approved by the Federal Cabinet on 19 April 2023 and is currently in the parliamentary process. The first reading in the Bundestag took place on 25 May 2023.

The Act implements the requirements of the EU Energy Efficiency Directive as part of the "Fit for 55" package at national level. By 2030, final energy consumption in Germany is to be reduced by at least 26.5% compared to 2008. The current version of the draft is available here.

In addition to general regulations for the federal and state governments and companies, which we discussed in the first part of "Energy Efficiency Act (EnEfG) – New Legal Requirements for Companies," the draft places particular requirements on the energy efficiency of data centres.

New standards for the energy efficiency of data centres (section 11 (1), (2) sentence 1 no. 1 EnEfG-E)

Data centres that go into operation on or after 1 July 2026 must be able to demonstrate a PUE (Power Usage Effectiveness) value of less than or equal to 1.3 no later than two years after going into operation. This requirement must be permanently achieved on an annual average no later than two years after commissioning. Data centres that have already commenced operation before this deadline must achieve a PUE value of 1.5 from 1 July 2027 and 1.3 from 1 July 2030.

Efficient use of waste heat in data centres (section 11 (2) sentence 1 no. 2, (3) EnEfG-E)

Companies with a total annual energy consumption of more than 2.5 GWh are generally obliged under Section 16 EnEfG-E to avoid the waste heat generated in their company according to the state of the art and to reduce the waste heat generated to the proportion of technically unavoidable waste heat. These requirements apply to data centres (Article 11 (4) EnEfG-E). The proportion of reused energy according to DIN EN 50600-4-6 (Energy Reuse Factor – ERF), ie usually waste heat, is also regulated. Data centres that go into operation on or after 1 July 2026 must be constructed and operated in such a way that they have a share of reused energy of at least 10%. For data centres that start operations on or after 1 July 2027, this percentage increases to 15%. Data centres that begin operation on or after 1 July 2028 must have a planned share of reused energy of at least 20%. The requirements must be achieved on an annual average two years after commissioning.

But the requirements do not apply:

• if the proportion of reused energy after commissioning, due to subsequent events and through no fault of the data centre operator, no longer meets the requirements;
• if an operator of a nearby heat network demonstrably does not accept an offer to use reused energy, although the capacity of the heat network is in principle sufficient, the heat network is located in spatial proximity and the operator of the data centre would bear the costs for the necessary infrastructure for the processing and provision of the reused energy; or
• if there is a waste heat recovery agreement between one or more nearby municipalities and the operator of the data centre, whereby the municipality declares its specific intention to establish or permit one or more heat networks, which will enable the waste heat recovery requirements to be met within ten years.

New requirements for air-cooling of information technology (Section 11 (5), (6) EnEfG-E)

Data centres that are put into operation from 1 January 2024 must comply with a minimum inlet temperature of 27℃ for the air cooling of information technology. For data centres that have already been put into operation, a minimum inlet temperature of 24℃ initially applies, but from 1 January 2028 the limit value of 27℃ also applies to them. Falling below this inlet temperature is only permissible if it is achieved without the use of a refrigeration system. There are exceptions for data centres whose systems for uninterruptible power supply are located in the server rooms of the data centre.

Buying electricity from renewable energy sources (Section 11 (8) EnEfG-E)

From 1 January 2024, 50% of electricity consumption has to be covered by unsubsidised electricity from renewable energies (Renewable Energy Factor – REF), and from 1 January 2027 it has to be 100%. According to the explanatory memorandum to the law, the electricity from renewable energies does not have to be physically purchased. Rather, it is sufficient to "prove the purchase of the electricity in the balance sheet through the acquisition of corresponding certificates." According to Article 30 of the Ordinance on Guarantees of Origin and Regional Guarantees of Origin (HkRNDV), guarantees of origin can only be invalidated by electricity supply companies, but not by end consumers themselves. The extent to which the legislator has taken this into account remains open. In this respect, clarifications in the further legislative process would be useful.

Introduction of an energy management or environmental management system (§ 12 EnEfG-E)

Operators of data centres must set up an energy or environmental management system by 1 July 2025. As part of this, continuous measurements of the electrical power and energy demand of the data centre must be carried out and measures must be taken to continuously improve the energy efficiency of the data centre. Under certain conditions, data centres are exempt from the obligation to introduce such a system.

For data centres with a nominal connected load of at least 1 MW and for those owned by public bodies with a nominal connected load of 200 kW or more, there is an additional obligation to validate or certify their energy or environmental management system from 1 January 2025.

Operators have to provide information to the federal government (§ 13 EnEfG-E)

Operators of data centres must provide the federal government with information about their data centre by the end of 31 March each year using an electronic template. The federal government may specify additional requirements for these information obligations by statutory order.

Energy efficiency register creates transparency and control (§ 14 EnEfG-E)

The federal government will establish an energy efficiency register for data centres in which the information submitted is stored and made available to the public via a digital platform. This will only apply if no threat to public or national security is to be feared or the interest in protecting this information outweighs the public interest in disclosure.

Information and consultation obligations in the customer relationship (§ 15 EnEfG-E)

If services are offered to customers, operators are obliged from 1 January 2024 to provide the customer with transparent information on energy consumption. As of 1 January 2024, operators of co-location data centres are obliged to show the share of energy costs in the total costs separately and to provide the customer with suitable monitoring information and the registration number of their data centre in the energy efficiency register.

Where do we go from here?

The EnEfG is coming. And it will have a significant impact on existing and new data centres, even if adjustments are still being made as part of the legislative process. So it’s essential for investors, owners, project developers and operators of data centres to prepare for the EnEfG.