A new mandatory legal framework for charging infrastructure in Europe – AFIR comes into force EU-wide and EU Commission publishes Q&A

Regulation 2023/1804 on the deployment of alternative fuels infrastructure (Alternative Fuels Infrastructure Regulation, AFIR) has been in force throughout Europe since 13 April 2024. At the same time, the EU Commission published the first official Q&A on the AFIR (click here). These 33 (!) Q&A sum up the EU Commission’s view on numerous interpretation issues related to Article 5 of the AFIR, which sets out the requirements for electric vehicle charging infrastructure. These Q&A will thus be an important point of reference in practice.

One of the AFIR's main objectives is to push forward the construction of charging stations for electric vehicles and refuelling stations for alternative fuels in European cities and along the Trans-European Transport Network (TEN-T). Alternative fuels within the meaning of the AFIR include electricity, hydrogen, gas (LNG and LPG) and biofuels. In addition to charging stations for passenger cars and for light- and heavy-duty electric vehicles, maritime ports and airports are also to be better supplied with electricity and hydrogen refuelling stations are to be built.

Articles 3 and 4 of the AFIR contain detailed and mandatory expansion targets for charging infrastructure in the Member States. These requirements partly substantiate the objectives of the German Fast Charging Infrastructure Act (Schnellladegesetz). It remains to be seen whether the expansion of the charging infrastructure driven by the contract award procedures for the ‘Deutschlandnetz’ (Germany Network) will also be able to implement the European targets.

The new requirements for operators and users of electric vehicle charging infrastructure in Articles 5 and 20 of the AFIR are probably the most significant factor in practice. In these articles, AFIR largely replaces the provisions of the German Charging Point Regulation (Ladesäulenverordnung) and section 14 of the German Price Display Regulation (Preisangabenverordnung), which were partly based on the previous Alternative Fuels Infrastructure Directive (AFID) dated 2014.

Regulatory framework for charging infrastructure in Article 5 of the AFIR

Here we will give you a brief overview of the most important provisions of Article 5 of the AFIR. We will also indicate at some places whether further information on the relevant requirements can be found in the Q&A.

The requirements in Article 5(1) of the AFIR for ‘ad-hoc’ charging go beyond the current provisions in section 4 of the German Charging Point Regulation. In the future, ad-hoc charging is to be enabled throughout the EU using a payment instrument that is widely used in the EU. For newly built charging points with a power output of less than 50 kW, either a payment card reader, devices with a contactless function that is at least able to read payment cards, or devices that use an internet connection and allow for a secure payment transactions, such as those that generate a specific QR code, must now be permitted as an electronic means of payment. Regarding the last variant, Q&A 5.10 clarifies that in the view of the EU Commission, not only dynamic QR codes, but also, in certain circumstances, static QR codes can meet the AFIR requirements. Q&A 5.8 also explains the differences between payment card readers and devices with a contactless function that is at least able to read payment cards. According to the EU Commission, the distinction between these two types of device is not relevant to the issue of whether a PIN keypad must be provided. That issue is instead based on the payment tool and its applicable authentication requirements.

Newly built charging points with a power output of 50 kW or more must be equipped with either a payment card reader or a device with a contactless function that is at least able to read payment cards. For these charging points, a QR code is therefore not sufficient as an electronic means of payment. These payment method obligations apply to charging points with a power output of 50 kW or more that are located along the TEN-T road network or in a safe and secure parking area, and from 1 January 2027 will also apply to infrastructure built before the AFIR came into force. This means a retrofitting obligation for these charging points. After the AFIR has come into force, the following types of charging point (depending on power output, age and location) will have to be distinguished with regard to the mandatory payment options:

Power output and location	Charging point with a power output of less than 50 kW (regardless of location)	Charging point with a power output of 50 kW or more (outside the TEN-T road network or a safe and secure parking area)	Charging point with a power output of 50 kW or more (along the TEN-T road network or in a safe and secure parking area)
Built after the AFIR came into force	Payment card reader, devices with a contactless function that can at least read payment cards, or devices that use an internet connection and allow for a secure payment process	Payment card reader or devices with a contactless function that can at least read payment cards	Payment card reader or devices with a contactless function that can at least read payment cards
Built before the AFIR came into force	Previous requirements of sections 4 and 7 of the German Charging Point Regulation: No retrofitting obligation	Previous requirements of sections 4 and 7 of the German Charging Point Regulation: No retrofitting obligation	From 1 January 2027: Payment card readers or devices with a contactless function that can at least read payment cards: Retrofitting obligation

 

Technical specifications are laid down in Article 5(10) and Article 21 of the AFIR in conjunction with Annex II No 1, which will thus replace section 3 of the German Charging Point Regulation; no new substantive requirements are included.

Article 5(2) of the AFIR governs the relationship of charging with automatic authentication compared to ad-hoc charging and contract-based charging solutions. Charging point operators must ensure that end users always have the right not to use automatic authentication. They must also ensure, in accordance with Article 5(8) of the AFIR, that all publicly accessible charging points operated by them and built after 13 April 2024 or renovated after 14 October 2024 are capable of smart recharging.

Further requirements for charging point operators can be found in Article 5(4) of the AFIR. This article sets out requirements for displaying prices for publicly accessible charging points, which will thus replace section 14(2) to (4) of the German Price Display Regulation. Unlike German law, the AFIR requirements differentiate between charging points with a power output equal to or more than 50 kW and those with a lower power output, both in terms of how the price is displayed and which price components are to be displayed. Note also that the requirements for charging points with a power output equal to or more than 50 kW only apply to those built from 13 April 2024. The fact that there are eight Q&A for this subsection alone shows that there will still be many discussions in individual cases.

In addition, Article 5(3) and (5) also lay down rules for electric mobility service providers (eMSPs) for the first time. Charging point operators (CPOs) are not allowed to discriminate against them, particularly with regard to pricing, either in relation to users or among the eMSPs themselves. However, similar to CPOs, eMSPs are also subject to requirements on price transparency for end customers. The recognition of the role of eMSPs goes hand in hand with the obligation for CPOs to ensure that all publicly accessible charging points they operate are digitally connected by 14 October 2024.

The Member States are obliged to ensure that these rules are complied with and that possibly unfair commercial practices are monitored (see Article 5(6) of the AFIR). Further specifications could be added by the national laws of the Member States.

Requirements for the provision of data in Article 20 of the AFIR

Another important new provision can be found in Article 20 of the AFIR. This article contains requirements for the provision of data, since ‘Data should play a fundamental role in the adequate functioning of recharging and refuelling infrastructure’ (recital 69). For example, Member States are to designate an Identification Registration Organisation (IDRO) that can identify charging point operators and mobility service providers using a unique identification code (ID) (see Article 20(1) of the AFIR). In Germany, this task is currently done by Energie Codes & Service GmbH, a private body commissioned by the Federal Ministry for Economic Affairs and Climate Action and belonging to the German Association of Energy and Water Industries (Bundesverband der Energie- und Wasserwirtschaft or bdew).

In future, operators of publicly accessible charging points and refuelling points for alternative fuels will have to provide certain static and dynamic data about the infrastructure they operate or the services associated with it free of charge. Static data includes the geographic location of the charging points and refuelling points for alternative fuels, the number of connectors, opening hours, maximum power output of the recharging station/point and the type of electricity (see Article 20(2) of the AFIR). Dynamic data includes the operational status, availability, ad hoc price and the origin of electricity from renewable sources. Finally, the Member States must ensure that the data is made accessible to all data users, such as customers or eMSPs, on an open and non-discriminatory basis (Article 20(4) of the AFIR). Lastly, Article 20(6) and (7) of the AFIR empowers the Commission to adopt further legal acts laying down details of technical requirements or the procedure for accessing data, among other things.

(Provisional) conclusion

The Europe-wide applicability of the AFIR and thus a largely uniform legal framework marks the beginning of a new era for e-mobility in the EU and the opportunity to establish e-mobility across the continent. However, the time between the adoption of the AFIR and the AFIR actually coming into force, plus the fact that there are 33 Q&A on Article 5 of the AFIR alone, have shown that many questions remain unanswered and unresolved when interpreting the rules in detail. The Q&A published by the European Commission do provide important and helpful practical guidance, but only rulings by the CJEU can provide legal certainty, as only the CJEU has the power to provide binding interpretations of EU law.