Germany: Legal tug-of-war over motorway charging infrastructure continues

As reported, Tesla and Fastned do not want to accept that the de facto monopoly of Tank & Rast and the federal government’s Autobahn GmbH at motorway service stations will be extended to fast charging. A lawsuit against Autobahn GmbH has thus been pending before the Düsseldorf Higher Regional Court since spring 2023. The judgement is likely to send a signal. The expansion of HPC chargers on motorways has been dragging on for months, as the legal decision is seen as a landmark. The ruling in the case, initially scheduled for the end of May 2023, has already been postponed several times: first to 16 June 2023, then indefinitely, as the Düsseldorf Higher Regional Court has referred the case to the Court of Justice of the European Union (CJEU) “for a preliminary ruling.”

The German Frankfurter Allgemeine Zeitung (FAZ) now reports that Autobahn GmbH is taking precautions if the ruling favours the two plaintiffs. In response to an expert opinion by the EU Commission’s Scientific Service, which casts doubt on the legality of the agreements concluded with Tank & Rast, the federally-owned company will put the roll-out on ice for now. According to the FAZ, Autobahn GmbH has decided to stop implementing the agreement with Tank & Rast from 2022 until a legal decision has been made. So far, there are around 710 charging points with more than 150 kW power installed – 2,500 are planned. With the stop, Autobahn GmbH will minimise the risk of an expensive roll-back. When asked by electrive, Fastned confirmed the information in the newspaper report.

The FAZ also addresses the further timetable in its report: “It is currently expected that the CJEU could issue its ruling in autumn 2024. The Düsseldorf Higher Regional Court will then have to rule on the merits of the case. That is expected in spring 2025.” The judges of the CJEU are currently in the process of obtaining statements in the proceedings. If the time estimate proves t correct, Germany will lose another year in the important expansion of the fast-charging network for cars and trucks. The long-distance capability of vehicles will suffer as a result. In the commercial sector, this will slow down the ramp-up of electrified road freight transport on long-distance routes.

The background to the complex legal dispute is that more than 90 per cent of motorway service stations in Germany are operated by the Tank & Rast franchise. The contracts date back to the privatisation of the service stations in 1998. The focus of the legal dispute is a contract awarded by Autobahn GmbH to Tank & Rast two years ago for installing fast chargers at the motorway service stations. Tesla and Fastned filed a lawsuit a year ago because Autobahn GmbH had not initiated a formal tendering procedure, and they, for their part, wanted to set up charging parks on the motorway. The fact that the federal government had given its concessionaire Tank & Rast the space for charging points virtually free of charge also caused resentment.

While Tesla has not commented on the legal dispute, Fastned has made public statements – for example, in the summer when the case was passed on to the CJEU. Fastned told electrive: “Even if this referral to the Court of Justice of the European Union was necessary from a procedural point of view, the expected extension of the decision-making period associated with this is not a purpose we are pursuing and does not advance the expansion of the charging infrastructure. We therefore hope that the Ministry and Autobahn GmbH will draw the necessary conclusions to ensure the rapid, competitive expansion of the urgently needed fast-charging infrastructure.” The aim was to ensure that competition prevails on German motorways and that the expansion of the fast-charging infrastructure is accelerated. “Only this will ultimately lead to the best possible charging experience for all EV drivers,” the Dutch provider added.

faz.net (in German)