VwGH: Are Charging Stations Electricity Companies?

The Austrian Supreme Administrative Court (Verwaltungsgerichtshof; hereinafter VwGH) held that the sale of electricity via charging stations and the establishment of such an charging station required for this purpose are not covered by the exemption provision of § 1 (1) No. 20 Austrian Trade Regulation Act 1994 (Gewerbeordnung 1994; GewO 1994) and therefore fall within the scope of application of the GewO 1994.

In the present ruling, the VwGH was confronted with the legal question whether the operation of an charging station, i.e. the sale of electricity for a consideration by means of an electricity charging station and the establishment of such a station, should be regarded an electricity company. Under § 2 (1) No. 20 GewO 1994, the provisions of the GewO 1994 are not applicable to the operation of electricity companies.

For the assessment of this question, the definition of electricity company pursuant to § 7 (1) No. 11 Austrian Electricity Industry and Organisation Act 2010 (Elektrizitätswirtschafts- und -organisationsgesetz 2010; hereinafter ElWOG 2010) applies. According to the definition, an electricity company is ‘a natural or legal person or a registered partnership which, with the aim to making a profit, performs at least one of the functions of generation, transmission, distribution, supply or purchase of electrical energy and performs the commercial, technical or maintenance tasks connected with these functions, with the exception of final consumers’.

The VwGH examined whether the operation at issue (sale of electricity via a charging station and the establishment of an electricity charging station) fulfills one of the above-mentioned functions, with reference to the provisions of the ElWOG 2010 and the GewO 1994.

Ultimately, the VwGH found that the operation is not covered by the exception provision of § 1 (1) No. 20 GewO 1994. Consequently, the provisions of the GewO 1994 apply to the operation or establishment of electricity charging stations.

VwGH Ro 2018/04/0010 (18.09.2019)