Electric filling station: no operation of an electricity company - Austria

Applicability of the GewO

In general, the GewO applies to commercial activities that are conducted independently, regularly and for purposes of achieving an income.2 Such activities typically require a trade licence. Furthermore, the construction and operation of a plant, which is locally bound and not only temporarily used for commercial purposes, generally requires a plant permit, if the plant is suitable to affect certain protected goods.3

However, certain activities are explicitly excluded from the scope of application of the GewO and thus do not require a trade licence or a plant permit. Under Section 2 (1) (20) GewO, the activity of operating an electricity company (Betrieb eines Elektrizitätsunternehmens) pursuant to Section 7 (11) of the Austrian Electricity Act ("ElWOG") is excluded from the GewO.

The VwGH had to assess whether selling electricity by means of an electric filling station for cars and the construction of such a station constitute the operation of an electricity company and are excluded from the scope of application of the GewO.

The case at hand

An applicant filed for a plant permit for the construction and operation of an electric filling station with the competent authority. The authority had doubts regarding the applicability of the GewO to this station and finally determined that it does not apply.4 The authority essentially reasoned that the applicant is an electricity company, which is excluded from the scope of the GewO. The applicant filed an appeal with the Carinthian Administrative Court on the grounds that the activity does not fall under the definition of operating an electricity company. The court ruled in favour of the applicant and found that the GewO applies. The authority filed an appeal against the decision to the VwGH (Amtsrevision).

Reasoning of the VwGH

The exemption from the GewO only applies to the operation of an electricity company, which is defined in Section 7 (11) ElWOG as:
"A natural person, legal entity or private partnership that performs at least one of the functions of (i) production, (ii) transmission, (iii) distribution, (iv) delivery or (v) purchase of electricity and the commercial, technical and maintenance activities connected therewith with the intention to make profit and excluding end-users."
The VwGH found that electric filling stations cannot be subsumed under the definition of an electricity company inter alia for the following reasons:

• First, it is irrelevant whether the operating company (also) produces electricity, like the applicant in this case, because the relevant activity only refers to the sale of electricity at an electric filling station.
• The operator of the electric filling station does not produce, transmit or distribute electricity. Also, the relevant activity only includes the sale and not the purchase of electricity.
• The sale of electricity is not explicitly listed as a function of an electricity company in Section 7 (11) ElWOG. However, it had to be assessed whether the sale of electricity falls under the function of delivery (Lieferung), which is defined as making electricity available.5 The delivery of electricity usually refers to activities within or connected with the electricity grid. Connecting a car to the electric filling station in order to charge it does not constitute grid access to the distribution system. Moreover, the delivery of electricity pursuant to Section 7 (45) ElWOG is subject to various rules (e.g. change of supplier) that show that "making electricity available" refers to the supply of electricity to customers for a certain duration, i.e. supplying a household with electricity.
• The VwGH ruled that the sale of electricity by means of an electric filling station for cars is not included in the definition of electricity companies. Therefore, the exemption under Section 2 (1) (20) GewO does not apply.

Comment

In conclusion, the rules of the GewO on trade licences and plant permits apply to the construction and operation of electric filling stations.
The question of whether the GewO applies to such stations has long been unclear, because there was no case law and the legal literature was divergent. In light of the current awareness of climate protection, the construction and operation of electric filling stations will most likely become even more important. Therefore, this decision on the legal qualification of electric filling stations is highly relevant and the legal clarity will certainly be welcomed by market participants and authorities. However, it remains to be seen whether applying the rules of the GewO will also have negative consequences on these stations, in particular because the requirements for plants will need to be met. ­

Author: Nina Zafoschnig

1 VwGH 18 September 2019, Ro 2018/04/0010.
2 Section 1 (1) and (2) GewO.

3 Section 74 GewO.
4 Section 348 (1) GewO.
5 Section 7 (45) GewO.

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