Tesla & Fastned challenge Germany over charging network monopoly

The Higher Regional Court in Düsseldorf is hearing a case today that is crucial for the future of fast-charging infrastructure in Germany. Tesla and Fastned are challenging the federal government over essentially extending Tank & Rast’s monopoly at motorway service stations to fast charging.

++ This article has been updated. Please continue reading below. ++

Tank & Rast was only privatised in 1998 yet still holds 95 per cent of concessions to run rest stops along German motorways. Now the company and the federally-owned Autobahn GmbH want this monopoly to extend to fast charging stations, a measure both Tesla and Fastned object.

Their argument: “It’s not just about this case, but about competition in general,” says Linda Boll, responsible for the German market at Fastned when speaking to Tagesspiegel Background. “The approach has been skewed for years,” she said when commenting on installing charging hubs at motorways. “Charging at service stations should become fairer, more open and cheaper,” Boll told Background. “We see a realistic chance of winning the case.”

Tank & Rast, Autobahn GmbH and Tesla did not respond to Tagesspiegel’s request for comment. However, Tesla and Fastned are represented by the same law firm and argue very similarly.

Tesla and the Dutch charging station operator want to achieve that fast-charging infrastructure on German motorways is “put out to tender freely and transparently for all interested market participants instead of being awarded directly to one party”. They further argue, that the concessions between the Bund and Tank & Rast that were awarded in the late nineties may apply to fuel pumps but not charging stations.

“In our opinion, charging and refuelling are fundamentally different,” argue Tesla and Fastned. These were “completely new business models and market participants that have nothing to do with refuelling,” quotes Tagesspiegel the two companies. There are also major differences in terms of technology, price composition and location and service requirements. Charging requires grid connections and batteries, while refuelling requires petrol and diesel tanks. “Charging is more convenient, more digital and more individual for the customer than refuelling. The sale of petrol and diesel was “massively different” from the sale of electricity and represents an “independent, new market”.

It is now up to the court to decide whether the contract extension between Tank & Rast and Autobahn GmbH is legal and “essential” in the sense of public procurement law. Tesla and Fastned are of the opinion that the extension “constitutes a material change to the contract which requires a separate invitation to tender”.

A ruling is not expected today but will take some time. Still, as Tagesspiegel points out, the outcome of the legal dispute will determine how much competition will prevail at the heavily frequented rest areas in Germany in the coming years. Tank & Rast uses the providers EnBW, MER, Ionity and Eon-Innogy as operators of charging stations. But because these companies sometimes differentiate their prices for charging power very strongly between their own customers and third-party customers, it can be very unattractive to pull off and charge there.

Update 31 May 2023

The verdict originally scheduled for Wednesday, 31 May, was not delivered as planned. The Higher Regional Court of Düsseldorf had to postpone the announcement due to illness, with a new date set for mid-June, leaving CPOs in Germany hanging.

The charging infrastructure industry will have to wait for clarity, which the plaintiffs were hoping for, for nearly two additional weeks. However, many observers anticipate that the case could also proceed to the next level of appeal.

Update 16 June 2023

In the proceedings on the extension of the existing concession agreements of Autobahn GmbH and Tank & Rast to fast charging on German motorways, the competent public procurement tribunal of the Düsseldorf Higher Regional Court decided on 16 June to submit certain questions on the admissibility of amendments to existing concession agreements to the European Court of Justice for clarification. The proceedings are thus dragging on even longer than anticipated.

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