No grandfathering for charging stations: small network operators should act now

The charging station infrastructure sector is currently undergoing regulatory change.
Strict unbundling requirements apply to distribution system operators in particular in accordance with Section 7c EnWG, from which, however, exceptions also apply to the operation of charging points for distribution system operators that fall within the scope of the de minimis rule in Section 7 (2) EnWG.
These exemptions are limited to December 31, 2024.
The Federal Network Agency (BNetzA) has now clarified how things will continue after the deadline.

Background to the prohibition of unbundling under Section 7c EnWG

The strict regulatory requirement to separate electromobility from grid operation is based on the idea that charging points should be established as a competitive market level downstream of the grid level.
They must therefore be separated from grid operations in accordance with the principles of unbundling.
According to Section 7c para.
1 EnWG, the prohibition applies not only to (the ownership and) operation of the charging points, but also to their development and management.
The ban on “development”, for example, means that the grid operator may not be involved in preparatory work for the operation of the charging point.
The operator of a charging point is the person who exercises decisive influence on the operation of a charging point, taking into account the legal, economic and factual circumstances.

No exception for de minimis companies after the end of the transitional regulation

For a transitional period, Section 118 para.
34 EnWG provided for an exception for grid operators that fall under the regulatory de minimis rule of Section 7 para.
2 EnWG.
These grid operators were permitted to develop, manage and operate charging points.
Due to the time limit of the exception in Section 118 para.
34 EnWG, however, the question arises in practice as to what extent these network operators could claim grandfathering for the charging points already implemented, which would allow the charging points to be operated beyond 2024.
The BNetzA clarifies its understanding, particularly with regard to the question of the transitional provision, that network operators that fall under the de minimis rule will no longer be allowed to operate charging points from 2025.
An exception that goes beyond the current regulations is neither provided for in the EU legislation nor in the EnWG.

Need for action for network operators

If this strict application of the wording of the law and thus the BNetzA’s interpretation continues, the ban in Section 7c para.
1 EnWG must be implemented for the entire existing charging infrastructure of grid operators – regardless of size.
As a consequence, grid operators will be obliged to transfer their ownership of existing charging points if they do not wish to give them up.
However, charging infrastructure activities can be transferred to other companies in the vertically integrated group of companies, and operational management constellations are also conceivable.
Only private charging points intended for the network operator’s own use are permanently exempt from the operating ban.
However, the scope of application is very limited.
A number of questions arise in practice.
On the one hand, it is already questionable which charging stations are to be transferred: For example, it is questionable whether charging solutions provided by integrated suppliers for (private) customers or contracting offers for clinics etc. are also affected.
On the other hand, the actual implementation of such a transfer – depending on the transaction path chosen – also regularly involves very different preliminary questions of company law and tax law aspects, which are only mentioned here as examples:

• Since options to implement the transfer by way of universal succession in a timely manner are now likely to be limited in terms of time/facts: What – possibly additional – action is required in the event of a transfer by way of singular succession?
• Which corporate bodies are to be involved or which external third parties (e.g. contractual partners, subsidizing bodies, municipal supervisory authority) are to be additionally involved?
• Are there any “hidden reserves” in the charging infrastructure – and if so, how can their tax-damaging disclosure be avoided?
• What effects does the transfer have on real estate transfer tax and VAT?
• How does the transfer (in the case of municipal energy suppliers) affect any existing “tax grouping”?