In a new decision the Austrian Higher Administrative Court governed that the commercial operation of charging points for electric vehicles does not fall under the Austrian Energy Act. This judgement places an end to the long-lasting debate and vagueness around the legal classification of such operators. As an outcome, 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) a minimum of one among the subsequent functions: generation, transmission, distribution, supply or purchase of electricity, and further conduct commercial, technical or maintenance tasks associated with those functions. End consumers (Endverbraucher) purchasing electricity for his or her own consumption, however, don’t fall into this definition. The classification of the sale of electricity by a charging point operator has long been debated within the Austrian legal profession, with the most 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 the present debate and located that the sale of electricity by charging point operators doesn’t qualify such operator as an electricity company within the meaning of the Energy Act. In this decision the court has, though, not commented on the acquisition of electricity by a charging point operator preceding the sale of such electricity.
However, the Energy Act explicitly excludes end consumers from the definition of electricity companies. As charging points don’t form a part of the general public electricity distribution grid, they’re considered consumer systems. Accordingly, the operator of a charging point is deemed to be the top consumer under the Energy Act, regardless of its rationale for the acquisition of energy (i.e. re-sale). Thus, also the acquisition of electricity by a charging point operator doesn’t end in its classification as an electricity company under the Energy Act. Consequently, the charging of an electric vehicle at a charging point doesn’t constitute an electricity supply within the meaning of the Energy Act.
This was also reinforced within the explanatory notes to the Austrian Act on the Establishment of Uniform Standards for the Deployment of other Fuels Infrastructure (Bundesgesetz zur Festlegung einheitlicher Standards beim Infrastrukturaufbau für alternative Kraftstoffe), which explicitly state that the operation of charging points doesn’t 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 electricity constitutes a trade (freies Gewerbe) under the economic Code. As such, this activity has got to be notified to the competent trade authority. Operations could also be commenced immediately after the complete notification (i.e. including all necessary documentation has been provided) has been duly made. It is not necessary for the trade authority to issue a particular authorization, but the authority may prohibit the continuation of the operations, if general conditions aren’t or no longer fulfilled (e.g. the operator fails to appoint a director under trade law).
To operate a trade-in Austria, the relevant business must take the shape of an Austrian subsidiary or a registered branch. Moreover, a director under trade law (gewerberechtlicher Geschäftsführer) for the Austrian subsidiary or registered branch has got to be appointed, who is liable for compliance with trade regulations. The director must generally be an employee of the charging point operator. This requirement doesn’t apply, if the director under trade law is at an equivalent time director under mercantile law (handelsrechtlicher Geschäftsführer). In any case, the director under trade law must be ready to exercise his oversight obligations and have the authority to exercise such oversight over the operation of the business to make sure 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 therefore therefore the enforcement of administrative penalties is ensured through a world agreement between Austria and the country of residence of the director; or
(ii) the director may be a national of a rustic which is a component of the EEA or a Switzerland national and also resides during a country which is a component of the EEA or in Switzerland, or
(iii) the director may be a third-country national who has been granted a long-term residence within the European Union or a long-term residence within the European Union as a loved one and who resides in an EEA country or in Switzerland and is permitted to figure in Austria.
The charging point(s) can 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 precise local circumstances.
Pursuant to the Directive 2014/94/EU member states shall make sure that prices charged by the operators of charging points accessible to the general public are reasonable, easily and clearly comparable, transparent, and non-discriminatory.
Charging point operators are, therefore, subject to the worth transparency regulations under the Austrian Supply of Services Act (Dienstleistungsgesetz – DLG), which provides 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 worth of the service, which shall be presented clearly, comprehensible, and unambiguously and shall be made available to the purchasers before the service is provided. It is sufficient, however, that information on the worth is out there at the situation of the charging point itself or if it’s easily accessible electronically (e.g. on the website of the operator).
Additionally, other information like name, register number, VAT-number, or terms and conditions are to be provided by a charging point operator under the availability of Services Act.
No continuous contractual obligation
The Austrian Infrastructure Deployment Act furthermore stipulates that operators of charging points accessible to the general public must enable users of electrical vehicles to charge without having to enter into a continuous obligation with the respective operator. The requirement of previous registration or subscription of a user is, nevertheless, possible if it doesn’t constitute endless contractual obligation with the respective charging point operator (e.g. the user is contractually sure to consume certain minimum amounts per month).
A charging point is taken into account publicly accessible, if it’s located on public land or a public traffic area, or placed at railway stations, airports, conveyance 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 general public through registration cards or fees or charging points of car-sharing schemes, which permit access for third party users by means of subscription, may also fall under this definition. All drivers of electrical vehicles shall have non-discriminatory access to those 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 reference to the applicable regulatory framework on this commercial activity. Even though the legal landscape during this area remains 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 important infrastructure within the area of e-mobility in Austria.