GER: ECJ Ruling for German Autobahn Charging Stations Requested

Jul 7, 2023 Benn-Ibler Rechtsanwälte

The legal dispute over electric fast-charging stations between providers of charging infrastructure for electric vehicles and the Federal Republic of Germany is now going to the European Court of Justice (ECJ). 200 fast-charging stations at German freeway service areas are planned for the future. It is disputed who will receive the concession for them.

The announcement of the tender resulted in great annoyance on the part of the providers of charging infrastructures. A review procedure was requested to determine that the contract amendment between the German transport ministry and Tank & Rast was invalid. According to the applicants, the supplement would violate public procurement law. An EU-wide announcement is required.

The transport ministry had acted on the basis of Section 5 (3) of the German Schnellladegesetz (Fast Charging Act) which stipulates that the operation of fast-charging points is to be opened to companies that already have a concession contract for the respective service areas or service stations on freeways.

However, the German Procurement Chamber rejected the application on the grounds that the award did not violate any restrictions on competition. In principle, appropriate award procedures are provided for. However, an exception is applicable if the contracting authority cannot foresee at the time of conclusion of the original contract that the extension of the contract would be necessary. When the concession agreement was concluded in 1998, it could not yet be foreseen that fast charging stations for e-mobility would someday be necessary.

The bidders appealed against the decision of the Procurement Chamber to the competent Higher Regional Court. The court has now ruled that the dispute over the award procedure will be suspended for the purpose of a preliminary ruling.

The issue to be clarified by the ECJ is whether a part of Directive 2014/24/EU is to be interpreted as meaning that its scope of application also includes those public contracts which were previously awarded to in-house entities outside the scope of the Directive, but where the conditions for in-house contracts are no longer met at the time of the amendment to the contract.

Press release, OLG Düsseldorf Nr. 23/2023 (16.06.2023)