Operation of charging stations in municipalities: expansion of the charging infrastructure taking into account municipal procurement policy

The establishment of publicly accessible charging infrastructure requires the Charging Point Operator (hereinafter referred to as "CPO") to have access to suitable land. According to Section 2 No. 9 LSV, a charging point is publicly accessible if it is located either in the public road space or on private property, provided that the area belonging to the charging point can actually be accessed by an undefined group of persons or by a group of persons that can only be determined according to general characteristics.

Accordingly, there is no public accessibility if the group of persons accessing the parking space is determined. This is the case, for example, if all persons using the parking lot are known by name, e.g. exclusively employees of one or more companies.

For example, suitable publicly accessible areas are made available by regional authorities such as the federal government and municipalities in particular, but also by private property owners. Unlike the use of private areas, access to public areas in many cases requires a special use permit under road law.

With regard to the granting of rights of use for publicly accessible areas by municipalities, the Act against Restraints of Competition (GWB) is not applicable if the municipality acts in a purely sovereign manner. There is no entrepreneurial activity or business act if and to the extent that the public authority acts on a statutory basis, simply in an administrative capacity or as a sovereign authority within the framework of public welfare.

In practice under administrative law, tenders for the expansion of the charging infrastructure have only been issued in isolated cases. In most cases, special use permits have been granted under road law or exclusive agreements have been concluded with CPOs. Municipalities can regulate principles and guidelines for the granting of special use permits for the installation and operation of charging infrastructure in special use statutes.

A statutory tendering obligation or, at any rate, an obligation to award contracts without discrimination has so far only been enshrined in law for the award of rights of way for energy supply networks in §§ 46 ff. EnWG.

If, however, the municipality is engaged in entrepreneurial or commercial activity and cooperates with a private company for the purpose of a faster expansion of the charging infrastructure, the award of municipal land is subject to a public invitation to tender.

In the case of entrepreneurial activity by the municipality, a distinction must first be made as to whether it bears the economic risk for the operation of the charging infrastructure. If the municipality bears the risk, it must award a service contract pursuant to Section 103 in conjunction with Section 115 GWB. If, on the other hand, the CPO as operator of the charging infrastructure bears the economic risk, a service concession must be awarded pursuant to Section 105 GWB.

The implementation of an award procedure in the case of municipal utilities owned by the municipality (so-called in-house or instate award) is also required. The guarantee of municipal self-government enshrined in Article 28 (2) of the Basic Law ensures that municipalities are responsible for regulating the affairs of the local community and can therefore also decide on procurements themselves. An exception to the obligation to award contracts only exists if more than 80% of the municipal utility's activities serve to carry out the expansion of the charging infrastructure or if there is inter-municipal cooperation (cf. Section 108 GWB).

The formulation of the objectives pursued with the allocation of space and the design and definition of the concrete allocation concept with various design options, taking into account the prohibition of discrimination under public procurement law, are likely to pose a not inconsiderable economic challenge. Possible objectives could include, for example, achieving the highest possible (land) revenues, ensuring an even distribution of sites across the municipal area and/or a particularly rapid expansion of the charging infrastructure. In this context, however, conflicting goals would also have to be taken into account. Substantial changes to the contract or services at a later date may also necessitate a new award under Section 132 GWB.

In addition, care must be taken to ensure that excessively long contract terms can inhibit competition. The German Federal Cartel Office has already objected to terms of more than four years. However, since electric vehicles are not yet sufficiently widespread, this aspect could be a possible justification for a longer contract term in individual cases.

The search for cooperation partners to establish a joint venture under company law is also subject to tender. Cooperation in a joint venture does not prevent the municipality from having to put the contract or the concession/service out to tender if the requirements for an in-house award are not met.

At the same time, however, design solutions are also possible, for example if the third party submits an offer to the municipality for a shareholding in the company under company law after complete construction of the charging stations and conclusion of all contractual relationships. In this case, municipal participation would only have to be examined from the point of view of municipal supervision law.

The competitive structure of the market for the expansion of a nationwide charging infrastructure could be significantly shaped in the future by a municipal procurement policy. Municipal cooperation with private companies can facilitate and accelerate the expansion of charging stations in the municipal area. The more charging stations there are on the market, the more sales of electric vehicles are likely to be boosted. However, it should be noted that in addition to the award of public contracts and service concessions, both the search for a cooperation partner and the establishment of a joint venture are subject to tendering under public procurement law.