Electromobility: German Federal Government's Master Plan for Charging Infrastructure will entail comprehensive changes to the legal framework

The German Federal Government wants to push ahead with the nationwide installation of charging points for electric cars and, at the same time, make industry more accountable. The Federal Government's "Master Plan Charging Infrastructure" is a direct reaction to the Climate Protection Plan 2050 drawn up by the German Federal Government, which provides for a 40-42% reduction in greenhouse gas emissions in the transport sector by 2030. The development of the charging infrastructure has for years suffered, among other things, from the fact that the legal framework conditions have either not yet been created or are preventing the rapid development of charging infrastructure. The master plan envisages tackling certain obstacles and thus creating a legal framework that will enable accelerated expansion of the charging infrastructure.

In particular, the master plan outlines measures which are intended for charging points accessible to the public on the one hand and charging points not accessible to the public on the other. In this context, publicly accessible charging points are those that fall under the Charging Post Ordinance (Ladesäulenverordnung or LSV) and are characterised by the fact that an undefined group of persons can use the charging points unhindered. Charging points that are not accessible to the public are defined as those that can essentially only be used by a certain group of people through physical access restrictions, such as in their own garage.

The following is an overview of the measures planned by the Federal Government, particularly in 2020.

1. Measures for setting up publicly accessible charging infrastructure

• Revision of the Charging Post Ordinance (Ladesäulenverordnung or LSV) by summer 2020: The requirement that an interface must be implemented in the charging points that can be used to transmit location information and dynamic data such as occupancy status is to be included. If necessary, regulations to improve the use of authentication, payment systems and roaming should also be introduced in the European context. In our view, new requirements in particular with regard to enabling charging customers of different roaming providers to access the system were an important feature in order to create maximum benefit for charging customers.
• Amendment of the Renewable Energy Sources Act (EEG): The existing legal uncertainties in the billing and payment of the EEG levy are to be eliminated. In this respect, it can be assumed that the different qualification of the charging point according to the Energy Industry Act (EnWG) and the Renewable Energy Sources Act (EEG), which leads to processing difficulties, will be eliminated. This is because under energy law, charging posts are qualified as final end-users in accordance with § 3 No. 25 EnWG. Under the Renewable Energy Sources Act, on the other hand, charging customers pursuant to section 3 no. 33 of the Renewable Energy Sources Act (EEG) are regarded as final consumers and charging point operators as electricity supply companies pursuant to section 3 no. 20 of the Renewable Energy Sources Act (EEG). The charging point driver is therefore privileged under the Energy Industry Act (EnWG) because it is not considered an energy supply company (EVU) and therefore does not have to meet the requirements placed on EVUs (energy supply companies). Under the EEG, however, it is, among other things, the debtor of the EEG levy, as are usually only electricity suppliers.
• Grid expansion: The foresighted expansion of the networks is to be planned together with the Federal Network Agency by March 2020 in order to avoid bottlenecks that could arise from charging infrastructure.
• Operation of charging infrastructure by distribution grid operators: In the event of regional market failure, the German government intends to allow the distribution network operator to set up charging infrastructure. The Federal Government is apparently aware that under European law it is only permissible for distribution network operators to operate charging infrastructure in absolutely exceptional cases. This is expressly stated in Article 33 (2) and (3) of the Electricity Market Directive EU 2019/944 of 5 June 2019. The Federal Government will therefore have to find a regulation in close consultation with the EU Commission which lays down very restrictive conditions for the distribution network operators to act. In Germany there is so far only one distribution grid operator who operates charging points itself, that is the Hamburg electricity grid.
• Supply obligation at conventional filling stations: By mid-2020, it is to be examined whether there will be binding requirements for filling station operators to also install charging points for electric vehicles. A supply condition is to regulate that charging points are also offered at all filling stations in Germany.
• Rapid charging stations and the mineral oil industry: By the end of 2020, the German Federal Ministry of the Environment, Nature Conservation and Nuclear Safety (BMU) is to examine whether the construction and operation of rapid charging stations in the mineral oil industry can be counted as a decarbonisation measure. The background to this is probably that the planned "Act on a National Emissions Trading System for Fuel Emissions" will place a heavy burden on fuel prices in the petroleum industry.
• Amendment of parking space regulations: The municipalities are to be asked to examine to what extent parking space regulations are to be revised in such a way that there will be incentives for the creation of charging infrastructure. The idea is to reduce the number of parking spaces to be kept available if parking spaces with charging infrastructure are created.
• Amendments to building & construction law/fire protection: The provisions of building code law, in particular with regard to fire protection regulations, are to be reviewed to see to what extent there may be simplifications for the construction of charging infrastructure.

2. Measures for the development of charging infrastructure not accessible to the public

• Amendment of tenancy and COA law: The Federal Council has adopted a proposal for a draft law on the reform of the Act on the Ownership of Apartments and the Permanent Residential Right (COA). The states of Baden-Württemberg and Bavaria (BR-Drs. 347/19 of 11.10.2019) have submitted the project for the draft law adopted on 11.10.2019 to amend the Civil Code and the COA to promote electric mobility (BR-Drs. 347/19 of 11.10.2019). This draft law contains a proposal to facilitate the installation of charging infrastructure in multi-family houses. In order to promote the installation of charging stations for electric mobility, a regulation is to be created for the installation of a charging station for electric vehicles for the benefit of the tenant of an apartment with parking space in accordance with § 554a BGB (Accessibility). In summary, both tenants and apartment owners are to be entitled to the installation of a charging station. The law is to be implemented by the end of 2020.
• Charging infrastructure in buildings: The amended EU Building Directive 2018/844 is to be transposed into German law in spring 2020. This will lead to concrete specifications for the cable and charging infrastructure in new buildings and major renovations of residential and non-residential buildings. When implementing the requirements on electromobility in national legislation, Member States should take due account of potential different conditions, such as ownership of buildings and adjacent car parks, public car parks operated by private companies and buildings serving both residential and non-residential purposes. It also implements the minimum number of charging points. With regard to new non-residential buildings and buildings undergoing major renovation, where the building has more than ten parking spaces, Member States shall ensure that at least one charging point is installed and that the wiring infrastructure (conduits for electrical cables) is installed for at least every fifth parking space, to allow the subsequent construction of charging points for electric vehicles, provided that the car park is inside the building and the renovation measures for major renovations include the car park or the electrical infrastructure of the building or the car park is adjacent to the building and the renovation measures for major renovations include the car park or the electrical infrastructure of the car park.
• Changes in tax legislation: The law on further tax incentives for electromobility and amending other tax regulations is already in the legislative process. On November 7, 2019 the German Bundestag approved the bill of the Federal Government in second and third reading (see Deloitte-Tax-News). The bill is scheduled to come into force on January 1, 2020. It is planned that, among other things, the tax exemption for advantages granted by the employer for the electric charging of an e-vehicle in the employer's company and for the company charging device temporarily made available for private use will be extended until 2030.
• Review of the flat rates for the charging of a company car: The flat rates are to be reviewed by the Federal Ministry of Finance to determine whether they need to be adjusted in calendar year 2021. In addition, a regulation is to be worked out on how the actual costs/disbursements incurred can be settled.
• Depreciation table in accordance with § 7 (1) EStG (Income Tax Act): Uniform criteria for determining the normal operating life for charging infrastructure are to be developed and, if necessary, the depreciation table is to be supplemented.
• Review of the Low Voltage Connection Ordinance (NAV): Section 19 (2) NAV, which was newly introduced on 22 March 2019 and provides for a notification obligation for "charging equipment for electric vehicles" in low voltage and for such from 12 kVA an approval obligation of the grid operator without a sanction-reinforced decision period, is to be reviewed with regard to its practical effect (possibly delay of grid connections) and in 2021 an evaluation is to take place as to how an accelerated grid connection can be implemented against this background.
• Ordinance on Section 14a Energy Industry Act (EnWG) on network load management: In 2020, the legal framework is to be defined in order to determine the framework conditions for network loading/load management. Up to now, electrical charging points have been regarded as controllable consumption devices within the meaning of Section 14a sentence 1 Energy Industry Act (EnWG), but they can generally benefit from a reduced network charge. To date, however, there are neither technical regulations for this nor specifications for the formation of such reduced charges. In this respect, it is to be expected that a long planned ordinance on taxable consumption facilities will be drawn up.

3. Evaluation of the package of measures

In summary, it can be stated that the General Federal Government will adapt the legal framework for the development of charging infrastructure in many places. Many legal hurdles will be removed. Nevertheless, the package of measures is far from sufficient to provide electric mobility with a practical, simple and reliable legal framework. Once again, the German Federal Government is merely adjusting its position instead of creating a comprehensive legal framework. In particular, this package of measures does not cover the greatest practical obstacles, such as a simplification of the measurement and verification law, an adjustment of the Price Indication Ordinance (PAngV) and a simplification of the market rules for handling electricity supplies. The measures are also only a first step in the area of taxation. Many questions have not yet been answered, especially in the area of value-added tax.