The applicable regulatory framework for the commercial operation of charging points in Austria
Authors: Johannes Trenkwalder, partner, David Kohl, associate, and Marco Selenic, associate with CMS Reich-Rohrwig Hainz
In a recent decision the Austrian Higher Administrative Court ruled that the commercial operation of charging points for electric vehicles does not fall under the Austrian Energy Act. This judgement puts an end to the long-lasting debate and ambiguity around the legal classification of such operators. As a result, charging point operators are generally not bound by the stringent regulatory regime set out by the Energy Act.
Applicability of the Industrial Code (not the Energy Act)
The Austrian Energy Act (Elektrizitätswirtschafts- und –organisationsgesetz 2010 – ElWOG) generally applies to (among others) electricity companies (Elektrizitätsunternehmen), which are defined as natural or legal persons (or registered partnerships) carrying out (for profit) at least one of the following functions: generation, transmission, distribution, supply or purchase of electricity, and further conduct commercial, technical or maintenance tasks related to those functions. End consumers (Endverbraucher) purchasing electricity for their own consumption, however, do not fall under this definition. The classification of the sale of electricity by a charging point operator has long been debated in the Austrian legal community, with the main source of disagreement being exactly this question of the applicability of the Energy Act.
The Austrian Higher Administrative Court (VwGH 18.9.2019 Ro 2018/04/0010) recently put an end to this debate and found that the sale of electricity by charging point operators does not qualify such operator as an electricity company in the meaning of the Energy Act. In this decision the court has, however, not commented on the purchase of electricity by a charging point operator preceding the sale of such electricity.
Nevertheless, the Energy Act explicitly excludes end consumers from the definition of electricity companies. As charging points do not form part of the public electricity distribution grid, they are considered consumer systems. Accordingly, the operator of a charging point is deemed to be the end consumer under the Energy Act, irrespective of its rationale for the purchase of energy (i.e. re-sale). Thus, also the purchase of electricity by a charging point operator does not result in its classification as an electricity company under the Energy Act. Consequently, the charging of an electric vehicle at a charging point does not constitute an electricity supply within the meaning of the Energy Act.
This was also reinforced in the explanatory notes to the Austrian Act on the Establishment of Uniform Standards for the Deployment of Alternative Fuels Infrastructure (Bundesgesetz zur Festlegung einheitlicher Standards beim Infrastrukturaufbau für alternative Kraftstoffe), which explicitly state that the operation of charging points does not fall within the scope of application of the Energy Act, but is subject to the Industrial Code (Gewerbeordnung – GewO).
Requirements under the Industrial Code
The mere trading with electrical energy, constitutes a free trade (freies Gewerbe) under the Industrial Code. As such, this activity has to be notified to the competent trade authority. Operations may be commenced immediately after the full notification (i.e. including all required documentation has been provided) has been duly made. It is not necessary for the trade authority to issue an explicit authorisation, but the authority may prohibit the continuation of the operations, if general conditions are not or no longer fulfilled (e.g. the operator fails to appoint a managing director under trade law).
To operate a free trade in Austria, the relevant business must take the form of an Austrian subsidiary or a registered branch. Moreover, a director under trade law (gewerberechtlicher Geschäftsführer) for the Austrian subsidiary or registered branch has to be appointed, who is responsible for compliance with trade regulations. The director must generally be an employee of the charging point operator. This requirement does not apply, if the director under trade law is at the same time director under commercial law (handelsrechtlicher Geschäftsführer). In any case, the director under trade law must be able to exercise his oversight obligations and have the authority to exercise such oversight over the operation of the business to ensure compliance with the trade regulations in Austria.
The director under trade law must generally have his permanent residence in Austria. Another country of residence is only possible if
(i) the delivery of any imposition and the enforcement of administrative penalties is ensured through an international agreement between Austria and the country of residence of the director; or
(ii) the director is a national of a country which is part of the EEA or a Switzerland national and also resides in a country which is part of the EEA or in Switzerland, or
(iii) the director is a third-country national who has been granted a long-term residence in the European Community or a long-term residence in the European Community as family member and who resides in an EEA country or in Switzerland and is permitted to work in Austria.
The charging point(s) may also require a business premises permit (Betriebsanlagengenehmigung). This is the case, if the operation of the charging points is to be considered unusual or dangerous given the specific local circumstances.
Pursuant to the Directive 2014/94/EU member states shall ensure that prices charged by the operators of charging points accessible to the public are reasonable, easily and clearly comparable, transparent and non-discriminatory.
Charging point operators are, therefore, subject to the price transparency regulations under the Austrian Supply of Services Act (Dienstleistungsgesetz – DLG), which gives effect to the pricing provisions of the abovementioned directive in Austria. Under these rules, the operators must provide their customers with certain information. This includes information on the price of the service, which shall be presented clearly, comprehensibly and unambiguously and shall be made available to the customers before the service is provided. It is sufficient, however, that information on the price is available at the location of the charging point itself or if it is easily accessible electronically (e.g. on the website of the operator).
In addition, other information such as company name, register number, VAT-number or terms and conditions are to be provided by a charging point operator under the Supply of Services Act.
No continuous contractual obligation
The Austrian Infrastructure Deployment Act furthermore stipulates that operators of charging points accessible to the public must enable users of electric vehicles to charge without having to enter into a continuous obligation with the respective operator. The requirement of a prior registration or subscription of a user is, nevertheless, possible if it does not constitute a continuous contractual obligation with the respective charging point operator (e.g. the user is contractually bound to consume certain minimum amounts per month).
A charging point is considered publicly accessible, if it is located on public land or a public traffic area, or placed at railway stations, airports, public transport stops or car parks located at such stops, or located at public service stations on highly frequented roads. Privately owned charging points accessible to the public through registration cards or fees or charging points of car-sharing schemes, which allow access for third party users by means of subscription, may also fall under this definition. All drivers of electric vehicles shall have non-discriminatory access to these charging points.
The Infrastructure Deployment Act also foresees technical specifications, which the charging points operated by the operator commercially must fulfill.
The decision of the Austrian Higher Administrative Court to exclude the commercial operation of charging points for electronic vehicles from the scope of application of the Energy Act has led to legal security with regard to the applicable regulatory framework on this business activity. Even though the legal landscape in this area is still rather scattered and fragmented, the regulatory burden on charging point operators has been lowered. This is also backed by the Austrian legislator, who shows a commitment to facilitate the expansion and development of vital infrastructure in the area of e-mobility in Austria.