Specification of the European publication obligations for data centres

European Commission specifies the publication obligations for data centre operators - what operators can expect now and in future.

Last year we reported on the new German Energy Efficiency Act (EnEfG) ("Energy Efficiency Act") Under the Energy Efficiency Act, data centre operators are required to publish certain information on energy consumption, the proportion of renewable energies in electricity consumption, energy efficiency, etc. and to report it to a national database.

The European Commission has expanded the reporting obligations in the Energy Efficiency Directive

The European Commission has now further expanded and specified the reporting obligations.

As part of the recast of the EU Energy Efficiency Directive (EU) 2023/1791 the European Parliament and the Council have stipulated in Article 12 and Annex VII of the Directive that Member States must require the owners and operators of data centres with a power demand of the installed information technology of at least 500 kW to make various sustainability-related information publicly available.

The requirements set out there and the content of the publishing obligations were previously formulated in relatively abstract terms. The European Commission was also empowered to adopt delegated acts to establish a common Union scheme for rating the sustainability of data centres and to establish the definition of the sustainability indicators, the performance indicators to be used for their calculation and the methodology to measure them. The European Commission has exercised this power by adopting Delegated Regulation C/2024/1639 dated 14 March 2024, which was published in the Official Journal of the European Union on 17 May 2024 as Delegated Regulation (EU) 2024/1364 and which entered into force 20 days later.

What (additional) information must data centre operators publish in future?

Operators of data centres in the European Union with an installed information technology power demand of at least 500kW will in future be required to report certain information about their respective data centres to a European database provided by the Commission. This information is defined in more detail in the Annexes to the delegated regulation. This concerns all types of data centres, whether they are enterprise data centres, colocation data centres or co-hosting data centres.

The reporting obligation includes information about the reporting data centre itself (e.g. name, location, owner/operator, type of data centre, etc.) and its operations (level of duplication of the electrical and cooling infrastructure).

At the heart of the reporting obligations, however, are various key performance indicators to be monitored by the data centre operators and measured according to key performance indicators, which are set out in Annex II of the delegated regulation. A total of 24 performance indicators are to be reported, which can be categorised thematically into three blocks: energy and sustainability, information and communication technology and data traffic.

In the area of energy and sustainability, detailed information on energy demand and consumption, total water consumption and drinking water consumption, waste heat and waste heat utilisation, cooling and the use of renewable energies must be provided in addition to various details on the floor area. In some cases, Annex II of the delegated regulation also contains specific requirements as to where the respective performance indicators are to be measured.

In addition, information on server and storage capacities as well as the bandwidth and volume of data traffic must be published.

The reports must initially be submitted by 15 September 2024, then by 15 May 2025 and then annually. Primarily, reports must be made on the reporting systems set up by the Member States for this purpose. The report can only be made directly on the EU database if there are no such systems have been established. The performance indicators collected in this manner are published at European Union level and Member State level.

The performance indicators collected are then used to calculate key figures for the energy used (Power Usage Effectiveness, PUE), the efficiency of water utilisation (Water Usage Effectiveness, WUE), the proportion of reused energy (Energy Reuse Factor, ERF) and the proportion of renewable energy (Renewable Energy Factor, REF), among others. These are also published as sustainability indicators.

There are already publication obligations under the Energy Efficiency Act

At first glance, one might think that this is nothing new, as publication obligations relating to sustainability were already introduced at national level last year with the Energy Efficiency Act, in particular section 13 Energy Efficiency Act in conjunction with Annex 3 Energy Efficiency Act. But it's not that simple.

A closer look reveals that the scope of the publication obligations now specified by the European Commission in the delegated regulation - in particular the performance indicators collected - goes significantly beyond the national publication obligations. In other words - only a fraction of the information collected by the European Commission is required at national level.

As only a small proportion of the performance indicators required by the EU have to be reported at national level, the question arises as to whether operators can be required to submit two separate declarations at national level in future - one in accordance with the Energy Efficiency Act and one in accordance with Union law - or whether it is sufficient to submit a single declaration from which the necessary data for the national database and the Union database can be taken.

It should be noted that the German Federal Ministry for Economic Affairs and Climate Action recently suspended the first reporting deadline of 15 May 2024 specified in the Energy Efficiency Act for three months, citing delays in adopting the European Commission's delegated regulation. Live operation of the data submission is planned in Germany from 21 June 2024; however, registration in the energy efficiency register for data centres (creation of a company account) is already possible now.

New (European) publication obligations just a first step towards further regulation of data centres in terms of sustainability aspects

In 2018, data centres consumed a total of 76.8 TWh of energy or 2.7% of the total energy demand in the EU; the Commission assumes that by 2030 this figure will rise to at least 98.5 TWh, or 3.21% of the total energy demand. New technologies in particular, such as autonomous driving and AI, require ever greater computing capacities. It is therefore no surprise that the European Commission is increasingly focusing on data centre operators on the road to climate neutrality by 2050.

Article 12 (5) Energy Efficiency Directive (EU) 2023/1791 requires that the European Commission assess the available data submitted by 15 May 2025 and submit a report to the European Parliament and the Council and, where appropriate, make legislative proposals with further measures to improve energy efficiency of data centres. Among other things, it should include a proposal for establishing minimum performance standards. The long-term target for the data centre sector is a transition towards net zero emissions.

Data centre operators and developers can therefore rest assured that in the coming years European regulatory requirements will apply in addition to the national requirements for the sustainability and energy efficiency of data centres in order to achieve the goal of a climate-neutral continent by 2050. This will lead to additional costs for data centre operators.