E-Mobility and Law

Understanding

E-mobility has been a subject that people have been talking about for some time now and is regarded as a building block for achieving climate goals. However, e-mobility is often used as a buzzword without actually specifying what it means. On the basis of the literal wording, e-mobility refers to all electrically powered vehicles, i.e. all vehicles powered by an electric motor. This means that vehicles using a fuel cell would also fall under the generic term e-mobility. However, this broad understanding does not correspond with the general usage of the term nor with the ideas of the legislator. Both understand e-mobility to mean only those vehicles that are powered at least by electricity stored in batteries or rechargeable batteries ("Battery Electric Vehicles", in short "BEV").

Stocktake

In absolute terms, the amount of vehicles with alternative drive systems among new vehicle registrations in Germany is generally still rather low, although the number rose again significantly in 2018. As of 1 January 2019, the number of BEV vehicles increased by 54.4% year-on-year to 83,175 vehicles (www.kba.de). With a total passenger car fleet of around 87 million vehicles, BEV accounted for less than 0.002% of the total. This puts Germany well behind other European countries, in particular, the Scandinavian countries. At the same time, these figures explain why the legal issues arising in connection with e-mobility have so far scarcely been examined outside relatively closed circles.

Perspective

However, looking back  and looking at our European neighbours, it cannot be concluded that e-mobility will continue to have a shadowy existence in the future. Rather, it can be assumed that the number of BEV and plug-in hybrid vehicle registrations will increase significantly over the coming years. The reasons for this development are likely to be manifold and range from increased (media) attention to climate change ("Greta effect") to technical progress, in particular, in terms of range and charging time, and the increased development of charging infrastructure, to the manifold state subsidies.

This is reason enough for us, as a leading law firm in the energy sector to not just take a look at energy law issues, but rather to pursue a cross-disciplinary approach to e-mobility. On the subpages linked to this page, you will find an extra introduction on the topic.

Promising future markets on the one hand, billion-euro investment requirements on the other: in the e-mobility sector almost nothing moves on its own. Rather, market participants have been joining forces at different levels for several years now in order to share costs, minimize risks, benefit from the know-how of others and seize opportunities together. Politicians are also specifically promoting cooperations in order to advance the sector. As early as 2009, the German Government launched the "National Development Plan for Electric Mobility". Since then, it has funded 15 areas with EUR 500 million in order to advance e-mobility in Germany.

Development

As a result of the aforementioned parameters, numerous cooperations have taken place in the e-mobility sector in recent years. Here are just a few examples:

• Ten partners, including the Google mother Alphabet and the City of Hamburg, are cooperating on the ELBE project (electrification of buildings for electric vehicles) with regard to various government-funded research and development projects for charging infrastructure on private grounds;
• Schaeffler and Semikron agreed to cooperate on the development of so-called power electronic systems, which are necessary for electric motors;
• Siemens and Valeo have become leading suppliers of high-voltage components;
• The major German automobile manufacturers intend to set up a Europe-wide network of fast-charging columns with the joint venture European High Power Charging;
• With Charge4Europe, DKV and Innogy are planning comprehensive supply solutions for operators of commercial electric fleets throughout Europe.

Legal structure

Depending on the objective pursued, cooperation can either be purely contractual or take the form of a joint venture. Cooperation on a contractual basis can be found above all, where research and development is the primary focus. As a rule, joint ventures are the means of choice where a concrete joint business idea is already being pursued with the intention of making a profit.

There is a comprehensive need for regulation in the contracts, including the governance and financing of the joint venture and - important in an innovative industry - the rights to  intellectual property that is developed jointly. With our many years of sector expertise, we can make a sound assessment of the need for regulation in each individual case and, building on this, provide competent advice both on purely contractual cooperations and on the establishment of joint ventures.

Perspective

In view of the fact that the market for electric vehicles is still in its infancy stage despite the media hype, the need for cooperation will continue in the coming years. The more the e-mobility sector develops into a mature market, the more traditional market mechanisms will take hold. Then, in addition to cooperations, M&A activities will also increase, among other things to consolidate the market.

Contacts:

Dr. Michael Bormann
Partner
Düsseldorf

Dr. Michael Krömker, MBA (Mannheim/Tongji)
Partner
Düsseldorf

The expansion of the charging infrastructure for e-mobility in Germany is lagging far behind the ambitious political goals. In particular, residents of apartment buildings with underground garages currently find it virtually impossible to "refuel" their electric vehicles with electricity "from home". Only a few parking spaces in underground car parks of large apartment buildings or in outdoor car parks still have their own power supply. According to a recent ADAC study this is currently less than 5%. The reasons for this are manifold: while the real estate industry says tenants and owners are showing little interest, also high costs, technical difficulties and a partly unclear legal situation are likely to deter many real estate owners and tenants from making the necessary investments.

It is clear that the expansion of e-mobility will also affect property owners. In the future, apartment owners and owners of apartment buildings, in particular, should accelerate the expansion of e-mobility and actively invest. The federal legislator is currently in the process of subjecting residential property law to an e-mobility reform and in doing so reforming the German Residential Property Law Act (Wohnungseigentumsgesetz – hereinafter: “WEG”) and corresponding tenancy law regulations by the end of 2019. While the current version of the WEG stipulates that conversions of common property require the unanimous consent of all the co-owners, this should change in the future. In addition, the legislator wants to give tenants the right to demand that the landlord tolerates that an infrastructure be installed in their car park.  

Specifically, the Federal Ministry of Justice's discussion draft on the amendment to the WEG and the provisions of the German Civil Code on tenancy law of 31 July 2018 provide for proposals according to which conversions to joint ownership for charging infrastructures only require a simple majority of votes of the WEG. In addition, tenants should be able to demand permission from the landlord to make structural alterations that are necessary for the construction or use of a charging infrastructure for electric vehicles. The landlord will only be granted the right to defend against such action under narrowly defined conditions. Another interesting point for the tenant and possibly detrimental to the landlord is that the tenant will not be obliged to restore the original condition of the landlord’s property after the lease has been terminated. Meanwhile, the discussion draft does not provide for any obligation to install charging stations.

The initiative to take action by the German legislator is based - as is very often – on the considerations of the European Union. At the end of 2016, the EU adopted the winter package: "Clean Energy for All Europeans", in which various legislative acts in the climate sector as well as in the gas sector were combined to implement the Energy Union and the European climate and energy targets by 2030. It was then also the EU Parliament and the Council of the European Union that adopted the building efficiency directive (EU Directive 2018/844) last year.

Among other things, this Directive provides for extensive measures to expand the e-infrastructure (compare Article 8 paragraphs 2 and 5). Real estate owners thus play a key role in the sense of European Union law. This applies to both owners of residential buildings and non-residential buildings (office buildings, businesses, hotels, sports halls, schools, shopping centres, etc.), at least if there is a parking space inside the building (underground car park) or adjacent to the building. In the case of non-residential buildings, charging points and charging infrastructures (protection tubes for electric cables) must be set up for all new buildings or major renovations - depending on the number of parking spaces - and in the case of all new buildings or major renovations of residential buildings (also depending on the number of parking spaces) the necessary cables for the charging infrastructures must be installed.

The Directive, which entered into force in 2018, must be transposed into national law by 2021, at the latest. However, national legislators have a certain margin in implementing the Directive: for example, building permit applications submitted by 10 March 2021 may still be subject to the law prior to implementation of the Directive. Exceptions may also be made for renovations where the charging and piping installation would exceed 7% of the total cost of the renovation. The Directive has not yet been transposed in Germany.

Ultimately, the costs resulting from the aforementioned measures are currently still manageable and will not unduly affect the residential and commercial property markets. However, the "door" is now open for the fact that the costs of developing the charging infrastructure for e-mobility must also be borne economically by the property owners, and cannot be passed on to the tenants. Whoever becomes first obliged to install protective pipes or the first to tolerate the infrastructure being installed by the tenant into their property could at a later date also be obliged to share in the costs for charging points or even to bear these completely by having to install them.

In the area of broadband supply (also a future-oriented area such as e-mobility), the building owner must, for example, equip buildings that are to be extensively renovated and equipped with connections for end users of telecommunications services with high-speed passive network infrastructures within the building, Section 77k (5) German Telecommunications Act. Here, too, the legislator already has a "model" for the area of e-mobility, which is still in its infancy.

However, e-mobility could also become an interesting business model, as the above-mentioned broadband supply, for example, has become. Concession- or operator-models open up lucrative business opportunities, especially for larger housing companies, and thus possibly also new markets in the medium term in the area of e-mobility. Ownership of real estate and e-mobility could thus form a symbiosis in the future. It remains to be seen, however, whether this will actually happen.

Contact:

Karsten Köhler
Partner
Leipzig

Dr. Frederic Tewes
Senior Associate
Dusseldorf

The further expansion of e-mobility depends largely on convincing customers of its advantages. The main disadvantage here is the lack of a nationwide charging station infrastructure and the associated lack of range ( only available in German language).

This is complicated by the fact that customers can only use charging points from providers with whom they have concluded a corresponding contract. Even if the legislator is striving to promote so-called ad hoc charging ("selective charging"), the existing charging station infrastructure is geared towards contract-based charging and will remain so in the medium term. However, contract-based charging poses numerous challenges with regard to data protection, as each charging process requires authentication of the user for billing purposes, i.e. personal data of the user must be collected. In addition, the number of participants involved in the contract-based charging process is significantly higher, as they also must have access to the personal data collected at the charging stations.

By using data roaming it is also intended to make it easier for users to use the charging points of operators with whom they have not concluded a contract themselves. This will result in at least one other participant having to be registered under data protection law. The transfer of charging data and the corresponding relationship between the charging post operator and the traction current provider must also be recorded under data protection law and depicted clearly in the contract. It becomes even more complex when vehicle manufacturers, leasing companies and rental car providers are also involved.

The following provides an overview of the essential data protection aspects when providing charging points.

General data protection basics

The whole of the data protection act is based on the principle of prohibition subject to granting permission. For example, the General Data Protection Regulation (hereinafter: “GDPR”) stipulates that the processing of personal data is only lawful if one of the explicitly listed conditions is fulfilled; Art. 6 (1) GDPR. If this is not the case, then processing is prohibited. The German Smart Meters Operation Act (MsbG), which is more specific to the operation of intelligent measuring points, also only permits the processing of personal data if either the consent of the data subject has been obtained or one of the statutory grounds for permission applies, Sec. 50 (1).

The personal data of the user of the charging station which is collected during the charging process may therefore always be processed by the individual participants if permission has been granted. It must be taken into account that the processing of the data is only permitted for the purposes covered by said permission. As some individual participants sometimes pursue different objectives when processing personal data, the type and scope of processing permitted may also differ.

What data is collected at the charging station?

The personal data collected at the charging station can be the customer ID assigned for the authentication of the charging station user. The fact that the data behind this customer ID is anonymised does not alter its classification as personal data. Personal data is also processed in the case of “pseudonymisation” (Art. 4 (5) GDPR), with the result that the requirements of the GDPR must also here be observed. Billing data is also processed during each charging process, as this is necessary for subsequent invoicing. The charging stations also contain smart meters, which at the end of a charging process, merge the amount of electricity taken from the charging station concerned with the customer ID, the charging station number and a time stamp. This merged data is used at the end of each month to issue an invoice for the refuelled energy and thus also has a personal reference.

The various persons responsible for data protection

All participants involved in the charging process and the subsequent invoicing must be classified either as data controllers (Art. 4 (7) GDPR) or otherwise in terms of data protection, for example as contract processors (Art. 4 (8) GDPR), as recipients of data (Art. 4 (9) GDPR) or as third parties (Art. 4 (10) GDPR). The exact classification into one of these categories depends to a large extent on the concrete design of the data processing. The person responsible is the natural or legal person, authority, institution or other body that alone or jointly with others decides on the purposes and means of processing personal data. The sovereignty over the purpose and means of data processing is therefore decisive. If several bodies pursue different purposes in relation to the same personal data, each body must be qualified as responsible in its own right. In this case, each person responsible is also obliged to comply with the requirements of the GDPR; this also and above all applies to the question of the permissibility of the specific data processing.

The permissibility of data processing at charging points

If the charging station user has a permanent contractual relationship with the traction current provider, who is also the operator of charging stations, the processing of personal data for the purposes of contract implementation is permissible, Art. 6 (1) lit. b) GDPR. The traction current provider must be able to process the personal data from the charging station user in order to properly execute the existing contract. For example, the customer ID is required for authentication, which in turn is required for activating the charging station. In addition, all billing-relevant data is required for later billing.

If the chosen charging station is not operated by the traction current provider with whom the user has a contractual relationship, but by a third party, there is often no contractual relationship with this charging station operator. In this case, data processing cannot be justified based on an existing contractual relationship, the processing of which requires the processing of personal data (Art. 6 (1) lit. b) GDPR). However, the charging station operator is also the smart meter operator, as the charging stations are equipped with smart meters. As the smart meter operator, the charging station operator is obliged to collect and process the measurement data itself. The operator hereby pursues its own purpose (within the meaning of Art. 4 No. 7 GDPR), so that the operator itself is responsible and is not only the processor of the traction current provider. The German Smart Meters Operation Act legally assigns the operation of the measuring point as a task to the smart meter operator, Sec. 3 (1) German Smart Meters Operation Act. In addition, it defines when data processing is allowed as part of the smart meter operation, Sec. 50 German Smart Meters Operation Act. Data processing is allowed if the user of the charging station has consented to the processing or if processing is necessary, whereby the necessity must refer to one of the case groups listed in the law, Sec. 50 (1) no 1 to no 4 German Smart Meters Operation Act. If there is a contractual relationship between the charging station user and the charging station operator, the permissibility of the data processing results from the fact that it is carried out and necessary for the fulfilment of contracts with the respective connection user, Sec. 50 (1) no 1 German Smart Meters Operation Act; within the scope of application of the German Smart Meters Operation Act, this regulation takes precedence over the GDPR. Without such a contractual relationship, the permissibility of data processing is likely to result from the obligation to fulfil a legal obligation of the charging station operator, Sec. 50 (1) no 3 German Smart Meters Operation Act. The legal obligation of the charging station operator also results from the German Smart Meters Operation Act. Insofar as data processing is carried out within the scope of these legally stipulated purposes, it is permissible. As these purposes differ significantly from those of the traction current supplier, it should be transparent that the charging station operator is not acting as the processor for the traction current supplier either, since the transmission of the processed data for billing purposes is one of the original tasks of the operator, Sec. 60 German Smart Meters Operation Act. Charging station operators and traction current suppliers therefore have equal status under data protection law, even if they have a contractual relationship with each other via a data roaming agreement.

Rights of the data subject

In principle, the GDPR also applies to energy measuring. However, the data protection provisions of the German Smart Meters Operation Act constitute permissible specifications within the meaning of Art. 6 (2), (3) GDPR. However, the German Smart Meters Operation Act only regulates the rights of those rudimentarily affected by data processing. For example, the German Smart Meters Operation Act does not contain any provisions regarding informing the data subject about the type and scope of data processing which is comparable to Art. 13, 14 GDPR. The obligation under Art. 13 GDPR to provide the data subject with comprehensive information is therefore not superseded by the German Smart Meters Operation Act, so that charging station operators must also inform customers of the type and scope of data processing in accordance with Art. 13 GDPR. This obligation also applies to the traction current supplier. The traction current supplier can, however, fulfil this obligation without any problems by concluding a contract with the customer.

The German Smart Meters Operation Act also only contains a few provisions with regard to the right to information of the person concerned. Overall, the right to information under Art. 15 GDPR clearly goes beyond the comparable provision in the German Smart Meters Operation Act, so that the data subject can request information on the type and scope of data processing based on of the provision in Art. 15 GDPR. Since replying to a request for information can involve a certain amount of effort, especially if a large number of data subjects process a large amount of data, it is advisable to establish a system within the company in advance, which clearly defines how requests for information from data subjects are to be handled.

Checklist for a privacy statement:

Contact:

Sebastian Laoutoumai, LL.M.
Senior Associate
Essen

Background: The electric company car as a tax-saving model (?)

As of the 1^st of January 2019, the law in force since the end of 2016 on tax incentives for electric mobility in road traffic was amended to include further preferential regulations for the use of a vehicle with an electric drive system. The new regulations apply to electric and hybrid electric vehicles that meet the requirements of Sec. 3 (2) no 1 or 2 German Electromobility Act (Elektromobilitätsgesetz), i.e. those that have a carbon dioxide emission of no more than 50 grams per kilometre driven or whose range - under the exclusive use of the electronic drive engine - is at least 40 kilometres. If such a vehicle is also used as a company car for private purposes for the first time between 1 January 2019 and 31 December 2021, the assessment basis for determining the non-cash benefit is halved. Under the "1% rule", only half of the gross list price of electric vehicles is to be used to determine the pecuniary benefit, Sec. 8 (2) in conjunction with Sec. 6 (1) no 4 sentence 2 no 2 German Income Tax Act (EStG). In the case of the "driver's logbook method", too, only half of the acquisition costs or comparable costs for the electric or hybrid electric vehicle must now be taken into account when determining the pecuniary benefit, Sec. 8 (2) in conjunction with Sec. 6 (1) no 4, sentence 3, no 2 German Income Tax Act. This means that the use of an electric company car is (at least also) clearly more economically advantageous for employees than a company car with conventional drive methods.

Introduction of an electric company car

Employers considering switching to electric vehicles in the company car fleet are initially faced with the question of whether this is permissible at all under the applicable employment law framework conditions and which employment law aspects must be taken into account in this changeover. Against the background of the significantly favourable taxation of an electric company car, this gives rise to the question from the employee's perspective as to whether vice versa an employee is entitled to a claim to be provided with an electric car.

Unilateral conversion of the company car fleet to electric cars by the employer

As soon as a vehicle is handed over to the employee on an individual contract basis (at least also) for private use, this represents a synallagmatic consideration for the employee’s work performance and therefore has the character of remuneration in the form of remuneration in kind, in accordance with Sec. 107 (1) German Trade Regulations Act (GewO). For the purpose of wage protection, employees should be granted remuneration in the narrower sense in cash, but the law gives the parties to the employment contract the opportunity to agree remuneration in kind as part of the remuneration, Sec. 107 (2) sentence 1 German Trade Regulations Act. The basic prerequisite for this is that the benefit in kind is in the employee's interest or the nature of the employment relationship. If this is not the case, the agreement on remuneration in kind is null and void, Sec. 134 German Civil Code (BGB). In the case of the provision of a company car, the existence of an employee's interest is generally to be assumed if this has been agreed with the employer and is objectively useful for the employee.

The problem with the provision of an electric vehicle as an element of remuneration could, however, be that, in comparison with conventional motor vehicles, it does not represent a performance of a medium type and quality. An average type and quality for a non-cash payment is measured by the average of the category resulting from the obligation, Sec. 243 (1) German Civil Code. In the case of a "defective" vehicle, an interest on the part of the employee in it may therefore no longer be assumed. If the contract of employment stipulates the hiring of a vehicle but does not specify it in more detail, an electric vehicle must therefore meet the average requirements for such a vehicle and must not deviate downwards. A negative deviation from conventional motor vehicles could result from the technical characteristics of electric vehicles, which are primarily reflected in the refuelling or charging process and range. Should this process take considerably longer, be considerably more expensive depending on the contractually agreed fuel/charge regulation, or be considerably restricted in the employee's ability to travel due to a short battery life, the condition as a vehicle of "medium type and quality" could be denied.

Charging the electric company car

There are essentially three options for charging an electric company car:

• Charging at public or external charging facilities, comparable to refuelling at conventional filling stations;
• Charging at the employee's place of residence, possibly at a charging infrastructure set up by the employer;
• Charging at the employer’s premises via the charging devices provided there by the employer.

Charging at public charging stations

There are widespread concerns against recharging with external providers that, in contrast to "normal" petrol stations, there is not a sufficient nationwide recharging infrastructure. By way of comparison, in 2018 there were 14,118 petrol stations in Germany for conventional drive systems, but the number is steadily declining. For every 10,000 inhabitants there were an average of approx. 1.7 filling stations. By contrast, in autumn 2018 there were around 13,500 publicly accessible normal and rapid charging stations for electro mobility, the number of which is rising steadily. In terms of motor vehicles per respective petrol station or charging station, the figure is approximately 540 petrol and diesel vehicles per petrol station and approx. 24 electric vehicles per charging station. These figures do not necessarily show a significant difference in the availability of the various fuels. It should be noted, however, that the density of charging stations varies from region to region and that considerably fewer of the more attractive rapid charging stations are available compared to normal charging stations, with a nationwide supply across the entire federal territory probably being achieved at least in the medium term.

The following figure shows an example of the presence of normal charging stations (blue) and rapid charging stations (red) in North Rhine-Westphalia in mid-2018 (source: www.bundesnetzagentur.de/DE/Sachgebie-te/ElektrizitaetundGas/Unternehmen_Institutionen/HandelundVertrieb/Ladesaeulenkarte/Ladesaeulenkarte_node.html, last accessed on 5 September 2019):

Charging by the employee

Charging by the employee can serve as a useful alternative. The charging infrastructure can be set up by the employee in such a way that either the employer acquires the charging infrastructure and allows the employee to use it, or the employee himself becomes the owner and the employer assumes (part of) the costs incurred, whereby the reimbursement of the acquisition costs would be subject to income tax. However, an original right to set up such an infrastructure does not automatically go hand in hand with the provision of an electric company car.

If the charging infrastructure becomes the property of the employee, the latter will in principle also bear the risks associated with the installation and use of the charging station. If the ownership remains with the employer, the employer bears the costs and risks and is subject to a regular inspection obligation as the system operator responsible for the condition (Sec. 5 German Accident Prevention Code Relating to Electrical Systems and Equipment (BGV A3). In both constellations, the employee is thus subject to more "burdens" than if the employee were to use a conventional motor vehicle: if the employee becomes the owner of the necessary charging infrastructure, the employee bears liability risks and has to accept installation and maintenance in its private sphere. If the employer remains the owner, the employee must accept the exercise of the employer's inspection obligations. In both cases, depending on the housing situation, the employee cannot decide on the installation of a charging station alone. In the case of condominium owners' associations, all owners must agree unanimously to the installation of a so-called "wall box" and in the case of a tenancy, the landlord. In addition, the spatial or constructional situation may not allow for a facility to be installed everywhere. Generally, the problem is the splitting of the electricity costs into the electricity consumption of the employee's private household and the costs to be borne by the employer for recharging the electric company car. A practical solution here is to install a meter on the charging station circuit, which measures consumption only for the charging processes, so that consumption costs can be billed to the employer on this basis.

Charging by the employer

Charging at the employer's place of business eliminates an additional liability risk of the employee for the plant operation. Likewise, no maintenance is required at the employee's place of residence. However, this presupposes that the electric vehicle has a range which is sufficient for the distances between the place of residence and the place of work and, if necessary, also for longer distances. It is therefore also decisive which specific electric company car model is used, as its range varies extremely: depending on the vehicle, it can be between 125 km and a considerable 850 km. In this respect, a charging station at the employer's - at least if the vehicle is used extensively for business and private purposes, even over longer distances - can only be seen as a complementary charging option.

Charging duration and charging costs

A disadvantage in the sense of a "lack" of electric vehicles could result from the much more time-consuming charging process compared to conventional refuelling. In addition to the "where" of recharging, the "how" is also decisive. Depending on the vehicle model and charging station used, the duration here varies between 0.5 hours at fast charging points with an output of 350 kW and approx. 14 hours at ordinary household sockets with an output of 3.7 kW. The charging time, even at fast charging stations, is thus currently still considerably longer than that of the conventional refuelling process. However, this duration cannot be seen as a negative deviation in quality, at least if charging can take place during working hours in the employer's area or overnight at the employee's home. In these constellations, recharging during idle times, which occur anyway, is rather an advantage compared to refuelling, since no additional time has to be spent on visiting a petrol station.

The costs incurred for recharging also generally do not speak against the use of electro mobility. In addition to the fact that fuel costs have to be regulated in the same way as for conventional company cars, the costs per 100 km do not exceed those of internal combustion engines, as the following table shows ( source: www.eon.de/de/eonerleben/laden-von-elektroautos.html, last accessed on 5 September 2019):

Is there a defect?

A negative deviation from the remuneration in kind of medium type and quality may be conceivable when using an electric vehicle as a company car if the use has clear disadvantages for the employee compared to an average company car with an internal combustion engine. This cannot, however, be assessed in general. If the employee is provided with charging infrastructure at the place of work which said employee can use without any further problems during working hours and which can thus achieve a range comparable to that of a motor vehicle with an internal combustion engine, an electric vehicle does not represent a vehicle which deviates from the medium type and quality, but an equivalent remuneration in kind which is in the employee's interest. It is important to note that the conversion to electric company cars does not result in any significant differences in the employee's burden from the vehicles used up to this point; the employer can then switch to electric cars in principle.

Charging time as working time subject to remuneration?

As the charging times can last several hours depending on the charging station, the question arises as to how this time should be assessed if the employee has to charge his/her  company car outside his/her regular working hours. While charging at the place of work during daily working hours or at the employee's place of residence during his/her off-duty period is carried out almost incidentally and does not tie up any additional time for the employee, another situation may arise if the employee is forced to charge while on the move and the charging time is, therefore, additional. With regard to the question as to whether these times are working time in the sense of occupational health and safety law, there are some arguments in favour of taking into account, in accordance with the treatment of business trips, whether, on the one hand, recharging itself was agreed as the main performance obligation (probably not as a rule) or, on the other hand, whether the time for recharging can - at least theoretically - be used by the employee for any activities and thus also for relaxation. If the employee can use the charging time for his/her own recreation, this speaks against the existence of working time.

A distinction must be made between this and whether working time subject to remuneration also exists in each case, since the qualification of a certain time span as working time within the meaning of working time protection law does not necessarily lead to a remuneration obligation, just as, conversely, the exclusion of certain times from working time within the meaning of occupational health and safety law does not have to exclude the remuneration obligation. With regard to the remuneration obligation for charging times at external locations, the principles could also be applied to business travel times. In its Judgment dated 17 October 2018 - 5 AZR 553/17, the German Federal Employment Court assumed with regard to travel times that the remuneration pursuant to Sec. 611 (1) German Civil Code is linked to the provision of promised services. These included not only the actual provision of work, but also any activity or measure initiated by the employer which is directly related to the actual work or the way in which it is provided and is therefore, as it were, in the synallagma. Every action is thus recorded which as such serves to satisfy a foreign need. In particular, it is important that the activity is of benefit to others and that it is performed outside the company. Under this premise, charging operations, which must necessarily take place on an operationally arranged route or during an operationally arranged stay would also be inseparably connected with the provision of services owed under the employment contract and would thus be working time in the sense of remuneration law.

Corresponding periods would then generally have to be paid with the remuneration agreed for the actual activity, unless a deviating provision on remuneration was made. However, remuneration can be excluded if necessary, as long as the provisions on the statutory minimum wage do not conflict and are therefore agreed in the form of lump sums. It is advisable to regulate the question of remuneration in the event of unscheduled charging times for the introduction of electric cars as company cars in order to prevent the employee from being entitled to additional remuneration for charging times - possibly even with overtime or Saturday, Sunday or public holiday surcharges.

Right to use an electric company car?

In view of the increased tax benefits, the pressure on employers to allow electric cars instead of conventional models when providing company cars could increase in the future. A claim to the provision of a company car - and thus implicitly also to the provision of a certain model - only exists if this has been agreed between the employee and the employer. Since even in larger companies, company car clauses in employment contracts, company car leasing contracts or company car guidelines do not yet generally take electric cars into account, the employee can only demand an electric company car with the consent of the employer. A different rule only applies if the employer's range of company cars already includes electric cars and the employee is given a choice.

In the absence of a corresponding claim, the employee also has no claim for damages, which could be based on the fact that said employee suffers a tax disadvantage due to the withholding of an electric vehicle. The prerequisite for a contractual claim for damages is a violation of duty on the part of the employer, which would lie in the non-granting of the electric company car if the employer were obliged to do so. However, as long as the employee is not entitled to an alternative electric vehicle, there is no basis for a claim for damages in connection with the higher taxation of a conventional company car.

Conclusion

There are no major objections to the introduction of electric vehicles as company cars. However, it is advisable to have the introduction or changeover accompanied by (employment) legislation in order not only to ensure that the change can be implemented promptly, but also to ensure that the rules are legally sound, particularly in financial and liability terms. The question of the involvement of employee representative bodies existing in the company, which was not dealt with here, must also be taken into account.

Contact:

Stefanie Prehm
Partner
Cologne

Environmental policies are more important than ever. According to Federal Minister Scheuer, the conditions for cyclists should be improved quickly and noticeably, and the goal is to ensure an area-wide, well-developed and safe cycling infrastructure by 2023. Looking at the development of bicycles and electric bicycles, this is essential. According to the two-wheel industry association, Germans own more than 75 million bicycles, of which around 4.5 million are e-bikes. Big business groups such as Deutsche Telekom, Deutsche Bahn and Vodafone, as well as small and medium-sized companies, are now offering their employees service bike models.

Business with e-bikes has been booming in recent years. Tax legislation also supports this trend. However, a distinction must be made between genuine e-bikes, which are classified as bicycles under traffic law, and e-bikes, which are regarded as motor vehicles. The following applies to genuine e-bikes:

The provision of company bicycles and company e-bikes, which the employer provides in addition to the wages owed anyway, is completely tax-free for the employee.

But also taxable models, in which the employer, for example, leaves leased e-bikes to the employee for cash salary conversion, can be worthwhile under certain circumstances. The monetary advantage from private use is taxed at 1 % of the recommended retail price of the manufacturer, importer or wholesaler, rounded down to the nearest 100 euros, at the time the bicycle is put into service, including VAT (“RRP”) per month, but for first-time leaving of e-bikes between 1.1.2019 and 31.12.2021, only half of the RRP is taken into account as the basis for assessment (effectively, the taxation is reduced to 0.5 %). The employee's advantage with this model results from the fact that the tax savings from the cash wage conversion partly compensate for the leasing costs of the e-bike.

Example:

The employer has concluded a leasing contract for an e-bike. The RRP for the e-bike is 3.000 EUR, the leasing rate is 60 EUR per month. The employee waives the salary in the amount of the leasing installment and has to pay 0.5 % of the RRP during the preferential period.

Thus, his taxable wages are reduced by 45 EUR (60 EUR wage waiver plus 0.5 % of 3,000 EUR). Assuming a tax burden including social security of 40%, his tax burden is reduced by 18 EUR per month. Gross, he has thus waived 60 EUR salary, but saved 18 EUR tax. The purse thus receives EUR 42 less. The savings in the tax burden are available to finance the e-bike. Over a lease term of 3 years, this would already be around 650 EUR.

On the websites of various leasing providers, calculation models are offered by which the individual advantages of such models can be estimated. It should be noted that many leasing models are designed for full service and that the costs for this may use up the tax advantage. And also the purchase of the e-bike after leasing end as well as the fiscal effect from it must be included into the total view, whether such a leasing model by wage waiver is worthwhile. If the employee buys his e-bike after the contract term and the purchase price is below the "usual final price", the price reduction is taxable as "third party wage". The tax authorities do not object to the "usual final price" being assumed 40 % of the recommended retail price including value-added tax for reasons of simplification in the case of standard leasing contracts with a term of 36 months. If the employer, rather than the employee, buys the wheel and sells it on to the employee, this also constitutes a taxable benefit in kind. You cannot avoid calculating.

However, also for e-bikes that are regarded as motor vehicles under traffic law tax incentives are given for. Thus, the loading of all private E-Bikes in the enterprise of the employer is possible tax-free. And also the taxation of the monetary advantage after half the taxable base is applicable on company e-bikes, which are to be classified as motor vehicles during the preferential period 2019 to 2021, whereby however here still - like with the car - the taxation of the distance kilometers with 0,03 % is added. However, the mileage allowance can be claimed for this.

The Annual Tax Act 2019, which is currently in the legislative process, currently provides for an extension of the tax exemption of the imputed income advantage granted from the provision of an company e-bike until the end of 2030. It remains to be seen whether the tax incentive measures will actually contribute to promoting environmental policy and advancing climate targets. However, the signal effect is going in the right direction.

Your Contact:

Nicole Fröhlich
Partner
Frankfurt

Selected current mandates in the area of E-Mobility

• Advising energy supplier from neighbouring EU member state on market entry in Germany
• Advising energy group regarding regulatory framework and revision of energy law with regard to interruptible loads (including electric vehicles)
• Advising UK based mobility provider regarding product liability law, GTCs and energy law in order to provide e-mobility services with cooperation partner in Germany
• Advising Dutch e-Mobility on acquisition of chargeIT mobility
• Advising Mitsui on acquisition of shares in Clevershuttle
• Advising energy supplier on billing models for charging electricity at public charging points (esp. measuring and calibration law, unfair trading)
• Advising international charge card provider regarding billing model in investigation by calibration authority and regarding unfair trading law
• Advising charge card provider in dispute with Consumer Office (Verbraucherzentrale) on General Terms and Conditions
• Advising charge card provider regarding B2C and B2B GTCs
• Advising energy supplier on various business models regarding risk allocation from public charging points (operating, managing, maintaining or other servicing)
• Advising international e-mobility provider with respect to cooperation agreement regarding project ELBE (electrifying buildings for EV’s) subsidised by BMWi
• Advising joint venture from energy and automotive industry on various business models for mobile charging points (energy law, levies, taxes)
• Advising international joint venture in project regarding charging stations for B2B customers in Germany
• Advising leading automotive supplier regarding IT-agreements for e-mobility platforms
• Advising leading energy supplier on data protection law in e-mobility project agreements
• Advising leading petrol station operator regarding construction charge points including subsequent litigation
• Advising integrated energy supplier on unbundling issues with respect to e-mobility
• Advising network operator on network access regulation issues arising from the installation of wallboxes

Luther Blog: "Umweltspuren: Kein automatischer Vorrang für E-Mobile", Dr. Stefan Altenschmidt, LL.M.

Luther Blog: "Elektromobilität: Guter Wille, wenig Wirkung", Dr. Gernot-Rüdiger Engel, Ekkehard Hübel

Interview: "Das Reich der E-Mobilität"

Masterplan Ladeinfratsruktur der Bundesregierung: Ziele und Maßnahmen für den Ladeinfrastrukturaufbau bis 2030