Questions and Answers on the Regulation on the deployment of alternative fuels Infrastructure (EU 2023/1804)

Telematic means the digital exchange of information. In this case it could be understood as the digital exchange of information between the vehicle and the recharging point, for example through wireless communication.

Is bi-directional communication with the grid equivalent to bi-directional recharging? Can you clarify the meaning of ‘to measure electricity flows’ under Article 2(17)

• Bi-directional communication and bi-directional recharging refer to different aspects:
  • Bi-directional communication with the grid means that the recharging point can exchange information in both directions with the electricity grid. In the case of bi-directional communication with the vehicle, it means the recharging point can exchange information in both directions with the vehicle. 
  • Bidirectional recharging refers to a smart recharging operation where the direction of the electricity flow can be reversed (see definition in Art 2(11). 
• ‘to measure electricity flows’ means the capability to quantify how much electric power is circulating through the recharging point. 

The definition only explains the term “digitally connected recharging point” while Article 5(7) stipulates that the operators of recharging points shall ensure that all publicly accessible recharging points have to be digitally connected by 14 October 2024. AFIR does not introduce a right for DSOs/TSOs to have accessibility to real time electricity flows from the recharging infrastructure. AFIR also does not grant the general right that DSOs/TSOs can “start and stop” a recharging session at any time.

It follows from the definition of “operator of a recharging point” (Art 2(39) that it is the operator who is responsible for the management and operation of the recharging point.

The recharging service is provided by the operator of a recharging point. In case of contract-based payment, the recharging service is provided by the operator of a recharging point on behalf of a mobility service provider.  

The definition introduces the concept of e-roaming and refers to the roles of operators of recharging and refuelling points and mobility service providers. The operator of a recharging point and a mobility service provider may or may not be affiliated.  

A limited and determinate group of persons is a group of identified persons that  are specifically authorised by the owner or tenant of the property on which the recharging point is located to access that property for other purposes than using the parking area or the recharging infrastructure. Members of the group have to be identifiable for this purpose. Such a limited and determinate group of persons could for example be residents of an apartment building or employees at an office building.

The opening hours are irrelevant when determining if a recharging point is accessible to the public. Only where the access to the property on which the recharging point is located is reserved for a ”limited and determinate group of persons” [with a specific authorisation relating to other purpose than just parking or using the recharging infrastructure,] can the recharging point be considered as non-publicly accessible.

Limiting a parking area where recharging points are located to a limited and determinate group of persons requires that the parking area is not accessible to non-authorised users (see also answer to question 2.7). This includes cases where there is a legal prohibition to park (e.g. for bus or taxi stops).

An example of a “limited and determinate group of persons” are employees, as they are individually known to their employer and associated owner/tenant of the parking area and have received a specific long-term authorisation to use the parking area of that property. However, a general group of persons that can become customers at any moment cannot be considered a “limited and determinate group of persons”.

There are no limitations in terms of time availability. Limiting the operating hours (for example on supermarket parking areas that can only be used during the opening hours of the supermarket) does not affect the classifications of recharging points as “publicly accessible”.

The concept of public accessibility refers to the possibility to have access to the parking area where the recharging or refuelling point is located. If that parking area is accessible to the general public and is not reserved to a “limited and determinate group of persons”, the recharging or refuelling point is therefore considered to be publicly accessible.

As follows from Article 2(45), a recharging point that is located at a site (such as parking area) which is open to the general public qualifies as a publicly accessible recharging point, irrespective of any limitations or conditions that may be imposed in terms of access to the site.

As long as the parking area is accessible to the general public, all recharging points located within this parking area are publicly accessible recharging points. Putting a sign has no influence on the assessment if the recharging point is accessible to the public in the meaning of the AFIR.

As long as the parking spot can be used by the general public, recharging points situated at this parking spot are always publicly accessible. Only when the curbside parking spot is restricted for the use of specific vehicles or a limited and determinate group of users can the recharging points be considered non publicly accessible, for example when the curbside parking is reserved for public transport vehicles, taxis, police cars or car sharing vehicles.

A recharging point is publicly accessible if the parking area where the recharging station is located is accessible to the general public. It is irrelevant if a parking fee has to be paid for entering the parking area for assessing if a recharging station is publicly accessible or not.

Recharging points that are located in areas of a larger parking lot that can only be used by a “limited and determinate group of persons” (e.g. employees of the company renting that parking spot) are not publicly accessible. This is independent of the existence of any physical separation of the private parking area from parking areas for the public.

In general, parking spaces (indoor and outdoor) of a residential property are reserved to the owners/tenants (i.e. a limited and determinate group of persons) of the property and cannot be used by the general public. Therefore, recharging points located on such properties are not considered to be publicly accessible unless the owner makes the parking spaces accessible to the general public.

As long as the parking area from where the recharging points can be used is reserved for employees only (i.e. a limited and determinate group of persons), the recharging points are not considered to be publicly accessible.

The parking areas on the premises of restaurant, shops, or similar entities offering goods or services are usually open to the public that intends to become a customer. As provided for in recital 11 of the Regulation, a recharging or refuelling point located on private property that is accessible to the public should be considered to be publicly accessible also in cases where access is restricted to a certain general group of users, for example to clients.

(*) Commission Delegated Regulation (EU) 2022/1012 of 7 April 2022 supplementing Regulation (EC) No 561/2006 of the European Parliament and of the Council with regard to the establishment of standards detailing the level of service and security of safe and secure parking areas and to the procedures for their certification

Articles 4(1)(e) and (f) clearly stipulate that publicly accessible recharging points need to be deployed in safe and secure parking areas. Those recharging points therefore have to meet all requirements applicable to publicly accessible recharging points.

Furthermore, and more generally, when a parking area is available to any member of the public that intends to become a customer of the parking and/or recharging or refuelling services, requirements for pre-booking and identification at the gate do not in themselves determine the existence of a “limited and determinate group of persons” with exclusive right to access that parking area. Safe and secure parking areas are accessible to any operator  intending to make use of their services (and therefore not to a limited and determinate group of persons), and are therefore considered publicly accessible, irrespective of any requirement to book in advance or to identify at the gate.

(*) Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018 amending Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency

AFIR does not include obligations to deploy recharging stations at specific locations. Recharging points at supermarkets are considered publicly accessible under AFIR and therefore have to meet the corresponding provisions under Article 5 of AFIR and can be counted towards the targets under Article 3(1) of AFIR. EPBD introduces targets for recharging points in certain buildings. If those recharging points are considered to be publicly accessible, they have to meet the corresponding requirements and can be counted towards the targets under Article 3(1) of AFIR.

Bus stops are not sites open to the general public. They are only accessible to vehicles that are authorised to use the bus stop. Therefore, recharging points installed to serve vehicles parked at a bus stop are not publicly accessible.

the applicable use conditions of the alternative fuels infrastructure in the context of Article 2(45) can relate to all aspects of the exact operation of the infrastructure, for example the available power output, price structure or payment methods offered. The logic here is that an operator cannot apply certain conditions for the use of the infrastructure and thereby affect the categorisation as a publicly accessible recharging point.

Recital 10 describes in detail the relations between, “recharging point”, “recharging station” and “recharging pool”.

A recharging station is a physical installation that includes one or more recharging points.

A recharging pool refers to a "cluster" with one or more recharging stations at a specific location. A recharging pool can consist of recharging stations operated by different operators as long as they are located at the same specific location, for example at a single motorway service station or rest area.

There are no clear rules defined as to the maximum distance between recharging stations that can be considered as one recharging pool. Normally, all recharging stations of a recharging pool would be located within one service or parking area. In any case, all recharging stations belonging to a recharging pool need to be located at a maximum distance of 3 km from the nearest exit as specified in Article 2(3)(a) in order to count towards the targets specified in Articles 3(4) and 4(1).

To which extent recharging stations that are not located within a clearly confined area, e.g. a service area, can be counted in meeting the requirements for one recharging pool will have to be decided on a case by case analysis.

Article 2(48) explicitly includes mobile and off grid recharging points into the definition of recharging points. Therefore, those recharging points – provided they fall under the definition of recharging point in Article 2(48) - and their operation fall under the scope of AFIR.

The operator of a mobile recharging point remains an operator of a recharging point in the meaning of AFIR. However, in addition, he can also be a mobility service provider within the meaning of Article 5(5) of AFIR.

The definition of ‘smart recharging’ only addresses the core functionality of a smart recharging point meaning that it must support recharging operations in which the intensity of electricity delivered to the battery is adjusted in real time. Additional functionalities that go beyond the functionality described in the definition are not necessary to comply with Art 5(8) of AFIR.

By virtue of the very nature of regulations, the provisions of regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt implementing measures. The extent to which additional specific national legislation may exceptionally be allowed in the absence of a specific provision empowering the Member States to do so is to be assessed on a case-by-case basis, and to be ultimately decided by the Court of Justice of the European Union.

With respect to the possibility of imposing mandatory e-roaming, it is to be noted that this policy option was considered and addressed in the Commission’s impact assessment, and it was discarded because laying down an obligation towards operators of recharging points to participate in roaming was deemed not to be a necessary or proportional interference with the contractual freedom of those operators. National measures aiming at achieving a similar objective should be assessed against that background and in light of the complete set of provisions laid down in AFIR and its objectives.

The requirements laid down in Article 5 apply to all publicly accessible recharging points, except where explicitly stated otherwise, for example Article 5(1), third sub paragraph only applies to recharging points above 50 kW deployed along the TEN-T network.

AFIR does not address the different components of a recharging service with respect to its VAT treatment.

“deployed” should be understood as being operational and available for use by end users. That means that the recharging point is installed and connected to the grid and capable of transmitting electricity to recharge electric vehicles.

’Payment instrument’ is defined in Article 4(14) of the Directive (EU) 2015/2366 of the European Parliament and of the Council as “a personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used in order to initiate a payment order”. ‘Payment service provider’ is defined in Article 4, point (11) of Directive (EU) 2015/2366 as “a body [as] referred to in Article 1(1) [of that Directive] or a natural or legal person benefiting from an exemption pursuant to Article 32 or 33 [of that Directive]. According to Union legislation, and in particular Directive (EU) 2015/2366 and Directive 2009/110/CE, only credit institutions, payment institutions, and e-money institutions can issue payment instruments. The European Banking Authority (EBA) maintains an exhaustive list of payment institutions and e-money institutions.

Examples of widely used payment instruments are debit cards, widely used credit cards and cash. A payment instrument can be considered “widely used in the Union” for the purposes of AFIR if it is used by a significant share of Union citizens that are of legal age for driving a vehicle. The payment instrument should moreover be supported in most, if not all Union Member States.

The term ‘payment card’ was not defined in AFIR, as it was considered to be a commonly understood notion. Payment cards include for example debit and credit cards.

If end users can only pay in cash for an ad hoc recharging session, this would not meet the requirements of Article 5(1).

Article 5(1) requires that operators of recharging points shall accept electronic payments through terminals and devices used for payment services.

Article 5(1) then lists different types of terminals and devices that operators of recharging points can choose from, depending on the power output of the recharging point.

Operators of recharging points are at liberty to provide additional payment options to end users, including but not limited to the possibility to pay in cash.

The purpose and functionalities of the terminals and devices referred to in Article 5(1) (a) and Article 5.1 (b) are essentially the same: they allow for payments to take place. Their main difference lies in the way they function.

A ‘payment card reader’ is a terminal or device that uses the chip embedded in a debit or credit card to exchange data and enable payments.

A ‘device with a contactless functionality that is at least able to read payment cards’, or Near Field Communication (NFC) reader, by contrast uses short-range wireless communication to exchange data and enable payments.

A ‘payment card reader’ will always require a physical payment card with a chip (debit or credit card) to enable payments, while a ‘device with a contactless functionality that is at least able to read payment cards’ could equally read physical payments cards but also communicate with other payment instruments such as a digital wallet on a mobile phone to enable payments.

The distinction between a “payment card reader” and a “device with a contactless functionality” has no relevance for the question whether such a terminal or device for payment services should be equipped with a PIN pad. Whether the presence of a PIN pad is required depends on the payment instrument that is used for the payment transaction, and the consumer authentication requirements applicable to that payment instrument.

The regulation does not specifically require that the device reads physical payment cards meaning that a device that reads payment cards embedded in digital apps (e.g. a mobile wallet application) is equally sufficient to meet the requirement as long as other requirements of Article 5(1) are being met in particular with regards to the payment instrument being used and the requirements related to ad hoc recharging. Typically, current devices in the market with a contactless functionality are capable of reading both physical and digitally embedded payment cards.

However, the above explanation refers to payments through a digital wallet or mobile phone application issued for example by a credit institution, payment institution or e-money institution that in general is used for payment services. In contrast, devices that only accept a smartphone application of an operator of recharging point or a mobility service provider, even if it had a credit card embedded in it, would not appear to meet the requirements of Article 5(1). According to Recital 36 and Article 2(47) of AFIR ad hoc recharging must be possible without the need to enter into a contract with the operator of the recharging or a mobility service provider that goes beyond the mere purchase of the recharging service. An application operated by mobility service provider (MSP) or a charge point operator (CPO) would always require the registration of the end user and the acceptance of the terms of use which means a contract is being established between the end user and the CPO or MSP that goes beyond the mere purchase of a recharging service.

Article 5(1) of AFIR stipulates that the operator must accept electronic payment through devices using an internet connection and allowing for secure payment transactions. That includes all devices that meet those requirements, including those built into the recharging station as well as mobile devices of the end user.

In principle a static or dynamic QR code referring the user to a website through which secure payment transactions are carried out through a mobile phone could be in line with this provision. However, no matter which technical solution is adopted it must ensure a secure payment transaction. Therefore, a static QR code could be in line with AFIR as long as it is readable and the security of the payment transaction is ensured.

Payments via Plug and Charge (communication through ISO 15118-2 or -20) are not relevant in the context of Article 5(1), as this Article relates to ‘recharging on an ad hoc basis’. Plug and Charge, by contrast, is a technology to enable automatic authentication and authorisation of a recharging session based on a contract-based payment established between an end user and a mobility service provider.

Parking fees (fees charged for parking a car irrespectively of the presence of a recharging point or the purchase of a recharging service) are not under the scope of AFIR and neither is the contract between the end user and the operator of the parking area. Therefore, ad hoc payments must be available in line with Art 5(1) at all publicly accessible recharging points within that parking area, also in cases where the user has to pay a parking fee and where the operator of the recharging point and the operator of the parking area are the same entity.

This requirement is further clarified in recital (33) of AFIR, which holds that “prices should be reasonable and should not exceed the costs incurred plus a reasonable profit margin”.

Whether or not prices charged by operators of publicly accessible recharging points are reasonable will have to be evaluated on a case-by-case basis.

AFIR does not provide specific thresholds or criteria for assessing if prices charged are reasonable, easily and clearly comparable, transparent and non-discriminatory. Compliance has to be assessed on a case by case basis and it is ultimately up to the European Court of Justice to assess compliance with this provision.

Article 5(3) addresses the operators of publicly accessible recharging points and their price setting towards the end user (B2C level) and towards different mobility service providers (B2B level).

This sentence is meant to clarify the preceding sentence of Article 5(3), which prohibits price discrimination between end users and mobility service providers or between different mobility service providers.

Price discrimination refers typically to situations where different ‘customers’ that are in the same or similar legal and factual situation are charged on the basis of a different price structure.

The last sentence of Article 5(3) intends to distinguish such price discrimination from normal practices of differentiating prices between customers that are not in the same legal or factual situation. Such price differentiation would be allowed on condition that it is proportionate and objectively justified.

Objective justification of the price differentiation between the ad hoc price and the price charged to a mobility service provider would depend on the circumstances of each case.

Whether or not prices charged by operators comply with Art 5(3) will have to be evaluated on a case-by-case basis and it is ultimately up to the European Court of Justice to assess compliance with this provision.

(...) leave discretion to market actors to determine the price components for ad hoc prices applied at publicly accessible recharging points with a power output of less than 50 kW. In this context, would it still be possible for Member States to adopt more stringent price requirements (e.g. mandating that prices must be based on the price kWh) in relation to the ad hoc price applied at publicly accessible recharging points with a power output of less than 50 kW?

By virtue of the very nature of regulations, the provisions of regulations generally have direct effect in the national legal systems without it being necessary for the national authorities to adopt implementing measures. The extent to which additional specific national legislation may exceptionally be allowed in the absence of a specific provision empowering the Member States to do so is to be assessed on a case by case basis, and to be ultimately decided by the European Court of Justice.

Article 5(4) of AFIR regulates the price setting by operators of publicly accessible recharging points. As regards operators of recharging points of less than 50 kW, it requires that information on all price components must be clearly and easily available. It also explicitly provides in which order certain price components must be communicated to end users.

Article 5(4) clearly specifies that “the ad hoc price charged by the operator shall be based on the price per kWh for the electricity delivered”. The ad hoc price is the price charged by operators of recharging stations to end users to allow them to recharge on an ad hoc basis. The obligation in the first sentence of the first subparagraph of Article 5(4), to base the ad hoc price on the price per kWh for the electricity delivered, is therefore only applicable to transactions concerning ad hoc recharging.

(...) parking lot (i.e. a parking lot equipped with a recharging point, EVPL)?

Article 5(4) does not specify from what moment onwards an occupancy fee can be applied by the operator of a publicly accessible recharging point with a power output equal to or more than 50 kW. By contrast, Article 5(4) does specify the objective of the occupancy fee that may be applied, i.e. to discourage long occupancy of the recharging point. Any fee applied pursuant to that article must be proportionate and suitable to achieve that objective.

That assessment must be carried out on a case by case basis. However, an occupancy fee that is applied from the start of a recharging session prima facie does not appear to be proportional to the objective of discouraging long occupancy of the recharging point as it would apply also to situations where the recharging point is used only for the time necessary to recharge the vehicle.

Since the co-legislators used two different terms in these sentences, it implies that they have a different meaning.

The term “show” indicates that the price has to be visibly present at the recharging station (e.g. on a screen or on a sticker). A mere reference at the recharging station that the price is available digitally is not sufficient in this case.

The expression “making the information available” is used elsewhere in the Regulation: in particular in Article 5(5) and 7(4), which both refer to the obligation to make information available “through freely available, widely supported electronic means”.

Therefore, when the terminology “make available” is used, it means that the information on prices may be made available through electronic means. In that case, “making the information available at the recharging stations” could consist in a link to the electronic means (e.g. a QR code leading to a website, or the URL code of the website with the pricing information) that should be clearly and easily available to consumers at the recharging station so that they can consult the price information before initiating their recharging session.

The first and second subparagraphs of Article 5(4) set out obligations that likely have an impact on the design of recharging stations, so the co-legislators decided that it was sensible to allow the market to adapt to these new requirements. They therefore agreed to require that these new rules should only apply to publicly accessible recharging points with a power output equal to or more than 50 kW deployed from 13 April 2024.

The obligations in the third subparagraph of Article 5(4) apply from the date of application of the Regulation (13 April 2024) to all publicly accessible recharging points with a power output of less than 50 kW.

AFIR does not address transaction fees. However, for recharging points with a power output of more than 50 kW the regulation clearly stipulates that prices must be based on kWh and that only an occupancy fee can be charged in addition. This excludes the possibility to charge transaction fees at those recharging points.

AFIR does not specifically regulates reservation services, which therefore in principle fall outside the scope of application of the regulation.

AFIR does not specifically regulates the issuing of invoices, which therefore in principle falls outside the scope of application of the regulation.

Art.5(5) states that mobility services providers (MSPs) shall make available to end users, prior to the start of an intended recharging session, all relevant price components, including applicable e-roaming fees if they are charged by the MSP. In that context, the last sentence means that the end user is subject to the same roaming fees – if those fees are charged by the MSP - no matter in which Member State he charges.

No, except if explicitly provided otherwise, all obligations in AFIR apply from the date of application of AFIR specified in Article 26, being 13 April 2024.

(...) and mandate that prices must for example be charged in kWh?

Article 5(5) of AFIR regulates the price setting of mobility service providers (MSPs). This article allows mobility service providers to apply different price components (see also Art 5(4) of possible price components), including e-roaming costs and other fees or charges applied by the mobility service provider.

The extent to which additional specific national legislation – for example by setting more stringent price requirements - may exceptionally be allowed in the absence of a specific provision empowering the Member States to do so is to be assessed on a case by case basis, and to be ultimately decided by the European Court of Justice.

(...) in this paragraph; does this refer to the same type of price components listed in Article 5(4) or does this also encompass other price elements such as CPO prices, personnel costs, taxes, profit margins, etc.?

The objective of Article 5(5) is to ensure that end users can easily compare the ad hoc price with the price that is being charged by the mobility service provider (MSP) before starting the session.

Therefore, in accordance with Article 5(5), the MSP must at least provide the following information:

• The price for the recharging service charged to the end user clearly listing all the different applicable price components charged.
• If applicable, the MSP also has to communicate additional applicable e-roaming costs as well as any other additional fees or charges it applies.

Mobile phone applications and publicly accessible websites that are freely available and can thus be downloaded and installed without cost, could be sufficient.

AFIR requires operators of a recharging point and the mobility service providers to ensure full price transparency on all the price components the end user is charged. This does not include any information on internal cost structures or purchase costs.

(...) How will the Commission in turn monitor the compliance by Member States of these monitoring obligations?

AFIR does not specify specific timeframes or formats for the monitoring. The Commission may assess, on a case by case basis, whether Member States comply with this obligation. It can for example do so on the basis of a complaint.

AFIR does not clearly define what has to be understood by ‘renovated’. Therefore, such an assessment must be carried out on a case by case basis. Depending on the exact situation, maintenance work requiring the replacement of certain parts may fall outside the scope of application of that provision.