The Right to Charging Infrastructure

Expert Interview – Thursday, February 04, 2021

Power2Drive Interview with lawyers Dr. Karla Klasen and Dr. Alexander Dlouhy from Osborne Clarke and Markus Emmert, member of the board of directors at the German Federal Association for eMobility

The reform of the German Act on the Ownership of Apartments and the Permanent Residential Right (WEG) has meant that since the end of last year, apartment owners and tenants in Germany can more easily install charging facilities for their electric vehicles. Furthermore, the draft of the Building Electromobility Infrastructure Act (GEIG) and the planned reform of the Charging Station Ordinance aim to expand charging infrastructure. But some questions still remain.

Lawyers Dr. Karla Klasen and Dr. Alexander Dlouhy from Osborne Clarke and Markus Emmert from the German Federal Association for eMobility offer their answers. You can find more detailed information by viewing our free The smarter E webinar “Charging infrastructure in Germany: Law and Practice” in our archive located here .

Would the establishment of communally owned charging infrastructure which could be used by all co-owners meet these co-owners’ entitlement in accordance with the new WEG?

Dlouhy/Klasen: That cannot be answered with a simple “yes” or “no.” The relevant background information is that each apartment owner can request reasonable structural changes for purposes of electric vehicle charging. In principle, a co-owner is said to only be entitled to make such a request if they own a parking spot which is not yet equipped with a charging station.

If there are already charging stations available at the parking spaces, then the question remains of in which situations an apartment owner is allowed to use the charging infrastructure. However, if the infrastructure is limited in its capacity, an apartment owner can claim entitlement to charging station upgrades. In general, the demand for expansion of existing infrastructure can also be rejected if it is deemed unreasonable. Whether or not that is the case can only be determined in specific individual cases under consideration of all circumstances and interests.

Are tenants with parking spots in private underground garages entitled to charging stations?

Dlouhy/Klasen: As tenants, they can request permission from their lessor to make structural changes which would serve to support electric vehicle charging. Whether the lessor needs to grant approval or what type of charging infrastructure may be built is decided on a case-by-case basis, contingent upon a comprehensive balancing of interests. Incidentally, the lessor might take on the project of constructing the charging station and in return raise the rent.

Could a community of apartment owners prevent the installation of a single wall box in favor of a communal solution (charging management system)? How long can it wait to decide on a community-wide solution?

Dlouhy/Klasen: A co-owner is only entitled to decide whether an action is taken – in this case the installation of charging infrastructure. However, the WEG does not include any specific provisions about how said action is taken. This is decided by the apartment owners as part of their regular management duties.

A co-owner first has to request the installation of charging infrastructure. Then, the building manager will include a relevant resolution proposal in the agenda of the next owners’ meeting if no circular resolution has been adopted. But it is worth mentioning that this act does not include any scheduling specifications. More importantly, the interests of the parties involved must be balanced – a sometimes lengthy process. Should the community of apartment owners indeed obstruct the plans, the only option left is to take the matter to court.

At an ownership rate of just over 50% in Germany, don’t we need to substantially shift our focus to the expansion of charging infrastructure for public parking and charging on the roads? And what about private/public charging in retail parking lots?

Emmert: We have to shift the focus to areas where charging is generally possible and sensible. Proportionally speaking, it is simply unreasonable to set up charging points in front of every home in urban areas. Investment and installation need to be concentrated where it makes sense. Other cases require alternative solutions. After all, no one is entitled to their own private diesel or gasoline fuel pump. But users must have access to charging locations.

Urban areas in particular need to be equipped with options for quick charging. They illustrate a perfect case for high-speed charging stations – comparable with today’s filling stations. For example, if a driver travels 20 km per day in an urban area – which is a lot, relatively speaking – then they could make their commute for 10 days with an electric vehicle without charging up. This person would simply need to visit a high-speed charger every 10 days for 30 minutes – or even less in the future – and would have enough power to last the next 10 days. If they were really efficient, they would combine this trip with their regular shopping. The retail sector has already recognized the opportunities presented for customer retention and is investing accordingly.

Charging at work is especially pertinent. Are you familiar with any examples of companies which have overcome the issues of accessibility and billing?

Emmert: Charging at home and at work is very important because estimates show that over 80% of charging cycles occur at these locations. But no employee parking lot is alike, meaning there is no universal blueprint. Therefore, charging points in these parking lots could fall under public charging infrastructure. And these could indeed be in employers’ best interests.

This opens up the opportunity to install different types of charging stations, which we are already seeing in some situations. It is important to note that if the charging point or parking lot is only accessible to specific persons, it must be signposted accordingly. If the charging station operator bills users for consumption, statutory provisions must be observed. This could include compliance with measurement and calibration law and the Charging Station Ordinance, if applicable.

What options do employers have who don’t have a physical barrier installed to restrict access to their employee parking lots? Are they forced to come up with payment options for non-employees, too?

Dlouhy/Klasen: If an employer operates a private parking lot where only employees are allowed to park, then they are not required to grant the general public access to park and charge there. Employees of a specific company do not belong to a group of people definable on the basis of general characteristics, but rather a group of people definable by individual characteristics. Therefore, the charging points in such a parking lot are not publicly accessible

charging stations as defined by the Charging Station Ordinance. The Charging Station Ordinance does not provide for the right to park! Consequently, the employer is not required by this ordinance to provide payment options. However, this is to be understood differently in the case of an employer-operated customer parking lot.

Will public charging infrastructure be required to include NFC terminals?

Dlouhy/Klasen: While the first proposal for reform of the Charging Station Ordinance made in fall 2020 indicates that card readers would need to be installed, the current reform proposal from December 2020 also allows for browser-based card payment via a free mobile website.

How does kWh-time-based payment work exactly? How can I as an operator ensure that a vehicle owner frees up a charging station once their car is finished charging? A time-based payment scheme just makes sense.

Dlouhy/Klasen: The German Price Indication Ordinance (Preisangabenverordnung) requires billing according to kWh. But additional charges for registration or parking or even basic service fees can be imposed. A time-based fee could therefore be charged separately via a parking ticket system. It is not required to bill customers using two separate systems, but both price components must be disclosed separately.