General
Regulation (EU) 2023/1804 of the European Parliament and of the Council of 13 September 2023 on the deployment of alternative fuels infrastructure, and repealing Directive 2014/94/EU (AFIR) is a fundamental cornerstone to support the transition towards more sustainable modes of transport, and to put the Union on track for the full decarbonisation of the transport sector by 2050.
The uniform application of AFIR throughout the Union is essential to provide seamless passenger and freight zero-emission road transport, avoid barriers to trade and to allow manufacturers and operators of alternative fuels infrastructure to attain economies of scale.
To that end, the present Questions and Answers have been prepared by the European Commission services to address specific technical questions and comments asked by members in the context of the Sustainable Transport Forum, which is the main expert group of the European Commission in the field of alternative fuels infrastructure, and by other market actors.
These Questions and Answers were prepared by the services of the Directorate-General for Mobility and Transport of the European Commission and does not commit the European Commission as such. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law.
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.
Article 5(1)
General context of the article: the obligations in Article 5(1) apply to the operator of the recharging point who needs to ensure recharging on an ad hoc basis at every recharging point operated by him. Recharging on an ad hoc basis means that an end user purchases a recharging service, without being required to register, conclude a written agreement or enter into a commercial relationship with the operator of the recharging point beyond the mere purchase of the recharging service (Article 2(47)), and without the need to enter into a contract with a mobility service provider (recital 36).
“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.
Except if explicitly provided otherwise, all obligations in AFIR apply from the date of application specified in Article 26, being 13 April 2024.
The signposting obligations apply to all recharging infrastructure within parking and rest areas along the TEN-T road network, also to those pre-existing the date of application of AFIR.