This is the second in a series of articles dedicated to analyzing how the new regulatory requirements of Regulation (EU) 2023/1804 on the deployment of alternative fuels infrastructure (AFIR) will impact businesses’ operating models in respect of e-mobility, etc. Part 1 of our series dealt with the definition of the operator of recharging points (CPOs). In this second part, we explain the requirements for non-discriminatory access to recharging points and the corresponding pricing.

AFIR seems to focus primarily on the perspective of the end user, as can be seen, for example, in the definition of CPO (see our comments on this in our blog post on the CPO definition) and in the more detailed specifications for the required non-discriminatory behavior—although these still only relate to publicly accessible recharging points:

Non-discriminatory pricing by CPOs, Art. 5 (3) and (4) AFIR

Prices charged by CPOs must be reasonable, easily and clearly comparable, transparent and non-discriminatory (Art. 5(3) AFIR).

The principles for determining when prices fulfil these requirements are not specified in the regulation. In this respect, general legal principles as applied in the energy industry could therefore be used, as the prices in question are essentially dependent on pricing in the electricity market. Of course, the price charged by CPOs also includes service fees; in practice, however, these cover a smaller percentage of the electricity price.

With regard to the requirements that prices should be simple, clear, comparable and transparent, Section 14 (2) of the Price Publication Ordinance (Preisangabenverordnung—PAngV) applies in Germany in any case, so long as the CPO itself supplies the charging power to recharging / end customers. In principle, the commodity price and (if charged) the base price must therefore be shown for ad hoc recharging. Increased transparency, for example within the meaning of Section 40 (3) of the German Energy Industry Act (Energiewirtschaftsgesetz—EnWG) with disclosure of levies implied by law—as is done for electricity supply contracts with end consumers—would only be required if the legislator amended the EnWG in this respect. However, it is not excluded that such increased transparency could in the future be implemented.

In practice it is challenging how to determine which prices can still be considered reasonable. Through this regulation, the European legislator indicates that the recharging infrastructure is regarded as an “essential facility” in the sense of the essential facilities doctrine and therefore requires CPOs to ensure that their prices are not unreasonable. In light of this, it seems obvious to apply the principles against unfair selling prices according to competition law, i.e., Art. 102 of the Treaty on the Functioning of the European Union (TFEU) and Section 19 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen—GWB). The European Court of Justice has ruled on unfair pricing, that price abuse may consist in the application of an excessive price “which bears no reasonable relation to the economic value of the service provided.” The relationship between the price and the economic value can be determined on the basis of a cost-price analysis and price comparisons as well as margin comparisons. In practice, it can therefore be assumed that CPOs who charge significantly higher prices than other comparable operators may be targeted by the competent authorities.

Finally, pricing must be non-discriminatory with regard to end users and mobility service providers (MSP). Differing prices may be applied, for example, if the differentiation is proportionate and objectively justified.

Non-discriminatory pricing of MSPs, Art. 5 (5) AFIR

Like the prices charged by the CPOs, the prices charged by MSPs to end users must also be reasonable, transparent and non-discriminatory. According to the definition in Art. 2 No. 36 AFIR, “MSP” means a legal person that provides services to an end user for remuneration, including the selling of recharging or refueling services. Before an intended recharging session begins, the MSP must provide end-users with all price information specific to that recharging session, through freely available, widely supported electronic means, which clearly distinguishes all price components, including applicable e-roaming costs and other fees or charges applied by the MSP. The fees must be reasonable, transparent and non-discriminatory and MSPs may not apply any extra charges for cross-border e-roaming. In this respect, there is currently a debate on how to facilitate the latter, where displays cannot show the relevant information, inter alia the use of dynamic QR-Codes and the like.

In addition, Art. 5 (4) AIFR specifies how prices need to be made transparent at recharging points installed from 13 April 2024

Recharging points with a power output equal to or more than 50 kW, the ad hoc price charged by the CPO must be based on the price per kWh for the electricity delivered. In addition, the CPOs of those recharging points can charge an occupancy fee as a price per minute to discourage long occupancy of the recharging point. The ad hoc price per kWh and any possible occupancy fee expressed in the price per minute must be visible at the recharging station so that that information is known to end users before they initiate a recharging session and price comparison is facilitated.

CPOs of recharging points with a power output of less than 50 kW must also make the information on the ad hoc price with all its price components clearly and easily available at the recharging stations they operate. The applicable price components must be presented in the following order: (1) price per kWh, (2) price per minute, (3) price per recharging process and (4) any other applicable price component.

Use of widely used payment instruments, Art. 5 (1) AFIR

At publicly accessible recharging points installed from 13 April 2024, ad hoc recharging must be possible using a payment instrument widely used in the EU. For this purpose, CPOs at these recharging points must accept electronic payments through terminals and devices used for payment services, including at least one of the following:

• Payment card readers
• Devices with a contactless functionality that is at least able to read payment cards
• For recharging points with a power output below 50 kW—devices using an Internet connection and allowing for secure payment transactions, such as those generating a specific Quick Response (QR) code.

These requirements do not apply to publicly accessible recharging points that do not require payment for the recharging service.

Voluntary automatic authentication, Art. 5 (2) AFIR

If a CPO offers automatic authentication at a recharging point, the CPO must ensure that end users always have the right not to use automatic authentication and instead either to recharge their vehicle on an ad hoc basis, at publicly accessible recharging points deployed from 13 April 2024, or to use another contract-based recharging solution offered at that recharging point. CPOs must clearly display this option to end users and offer it to them in a convenient manner.

From 13 April 2024 and 14 October 2024: Mandatory e-roaming and mandatory smart recharging capability, Art. 5 (7) and (8) AFIR

By 14 October 2024, CPOs must ensure that all publicly accessible recharging points operated by them are digitally-connected recharging points (Art. 5 (7) AFIR). According to Art. 2 No. 17 AFIR, a “digitally-connected recharging point” is a recharging point that can send and receive information in real time, communicate bi-directionally with the electricity grid and the electric vehicle and that can be remotely monitored and controlled, including in order to start and stop the recharging session and to measure electricity flows. With this, AFIR aims to create a future possibility to develop advanced digital services, including contract-based payment solutions, and to ensure transparent user information. This depends on the establishment of smart recharging points that support the creation of a digitally connected and interoperable infrastructure (Recital 28 of AFIR).

This is also reflected in the requirement placed on CPOs to ensure that all recharging points operated by them and built after 13 April 2024 or renovated after 14 October 2024 are capable of smart recharging (Art. 5(8) AFIR).

Way forward

The pricing of recharging infrastructure is highly relevant in practice, particularly with regard to areas where there is hardly any alternative or competing recharging infrastructure, e.g., high-power charging. It remains to be seen to what extent the authorities will intervene in pricing here—in any case, the first sector investigation, presumably by the Federal Cartel Office (Bundeskartellamt), should be expected and anticipated.

The binding minimum targets and obligations set out in the AFIR only relate to the installation of publicly accessible recharging infrastructure. However, as we already indicated in Part 1 of this series, it can be presumed that the requirements for publicly accessible recharging stations could also approach those of non-publicly accessible recharging stations. It should be kept in mind that a review of prices for recharging electricity in accordance with Art. 102 TFEU or Section 19 GWB also appears possible in the area of non-public recharging infrastructure, as such infrastructure could also be deemed essential facilities.