04.11.2019

E-Mobility and Law

E-Mobility and Law

Understanding

E-mobility has been on everyone's lips for some time and is regarded as a vital component for achieving climate targets. E-mobility is often used as a buzzword without specifying what is meant by it. Based on the wording, e-mobility refers to all electrically powered vehicles, i.e. all vehicles driven by an electric motor. This means that vehicles using a fuel cell would also fall under the generic term of e-mobility. However, this broad understanding does not coincide 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").

Inventory

In absolute terms, the share of vehicles with alternative drive systems among new registrations is still rather low, although the number has again risen 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 more or less closed circles.

Perspective

Looking back, however, and at our European neighbours, it cannot be concluded that e-mobility will continue to be 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 in 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 pursue a cross-disciplinary approach to e-mobility and not just to take a closer look at energy law issues. On the subpages linked to this page, you will find an initial introduction to the topic.

The E-Mobility Sector: Characterized by Cooperations

Promising future market on the one hand, billion-euro investment requirements on the other: In the e-mobility sector almost nothing goes alone. Instead, 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 cooperation in order to advance the sector. As early as 2009, the Federal Government launched the "National Development Plan for Electric Mobility". Since then, it has funded 15 thematic areas with 500 million euros in order to advance electric 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 in the ELBE (Electrifying Buildings for EV) project with regard to various government-funded research and development projects for charging infrastructure on private ground,
  • Schaeffler and Semikron agreed to cooperate in the development of so-called power electronic systems, which are necessary for electric motors,
  • Siemens and Valeo create a leading supplier 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 structuring

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 jointly developed IP. 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 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 cooperation, M&A activities will also increase, among other things to consolidate the market.

 

Contact persons:

Dr. Michael Bormann
Partner
Düsseldorf

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

Property ownership and e-mobility - two things that do not go together?

The expansion of the charging infrastructure for e-mobility in Germany lags 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 "at 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 (only available in German language) this is currently less than 5%. The reasons for this are manifold: While the real estate industry refers to the low interest of tenants and owners, also high costs, technical difficulties and a partly unclear legal situation are likely to deter many real estate owners and tenants from corresponding investments.

It is clear that the expansion of e-mobility also affects 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, reforming the Condominium Ownership Act (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 co-owners, this is to change in the future. In addition, the legislator wants to give tenants the right to have the landlord/owner tolerate the installation of a charging infrastructure in their car park.

Specifically, the Federal Ministry of Justice's draft discussion on the amendment to the WEG and the provisions of the German Civil Code on tenancy law of 31 July 2018 (only available in German Language) provides 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 property owner to make structural alterations that are necessary for the construction or use of a charging infrastructure for electric vehicles. A defense right is to be entitled to the property owner only under narrowly defined conditions. Another point of interest to the lessee and possibly detrimental to the lessor is that the lessee should not be obliged to restore the original condition of the lessor's property after termination of the lease. Meanwhile, the draft does not provide for an obligation to install charging stations.

The initiative of the German legislator goes - as often - back to 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, cf. Art. 8 paras. 2 and 5. Real estate owners thus play a key role in the sense of 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 set up.

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 loading 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 is first obliged to install the protective pipes or to tolerate the installation of a charging infrastructure by the tenant into his 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 field 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 para. 5 of the Telecommunications Act. Here, too, the legislator already has a "model" for the field 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 field of e-mobility. Ownership of real estate and e-mobility could thus form a symbiosis in the future. It remains to be seen whether this will actually happen.

 

Contact persons:

Karsten Köhler
Partner
Leipzig

Dr. Frederic Tewes
Associate
Düsseldorf

Privacy aspects of e-mobility services

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 aggravated 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 anxious 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 actors involved in contract-based charging is significantly higher, as they must have access to the personal data collected at the charging station.

Data roaming is also intended to make it easier for users to use charging points of operators with whom they have not concluded a contract themselves. This will result in at least one other actor having to be registered under data protection law. The transmission 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 mapped cleanly in the contract. It becomes even more complex when vehicle manufacturers, leasing companies and rental car providers are also involved.

In the following, the essential data protection aspects of the provision of charging points are presented.

General data protection basics

The entire data protection law is based on the principle of prohibition with reservation of permission. For example, the DSGVO stipulates that the processing of personal data is only lawful if one of the explicitly listed conditions is fulfilled, Art. 6 para. 1. If this is not the case, the processing is prohibited. The MsbG, which is more specific to the operation of intelligent measuring points, also permits the processing of personal data only if either the consent of the data subject has been obtained or one of the statutory grounds for permission applies, § 50 (1).

The personal data of the user of the loading column collected during the loading process may therefore always be processed by the individual actors if a corresponding permit has been obtained. It must be taken into account that processing is only permitted for the purpose covered by the permit. Since the individual actors sometimes pursue different purposes in the processing of personal data, the type and scope of processing permitted may also differ.

What data is collected at the charging station?

Personal data is collected at the charging station to the extent that the customer ID assigned for the authentication of the charging station user is queried. The fact that the data behind this customer ID is pseudonymised does not alter the classification as personal data. Personal data is also processed in the case of pseudonymisation (Art. 4 No. 5 DSGVO), with the result that the requirements of the DSGVO must also be observed here. Billing data is also processed during each loading 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 refueled energy and thus also has a personal reference.

The various persons responsible for data protection

All actors involved in the loading process and the subsequent invoice must be classified either as data controllers (Art. 4 No. 7 DSGVO) or otherwise in terms of data protection, for example as contract processors (Art. 4 No. 8 DSGVO), as recipients of data (Art. 4 No. 9 DSGVO) or as third parties (Art. 4 No. 10 DSGVO). 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 DSGVO; 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 Para. 1 lit. b) DSGVO. The traction current provider must be able to process the personal data of the charging post 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 you have 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 para. 1 lit. b) DSGVO). However, the charging post operator is also the measuring point operator, since the charging posts are equipped with smart meters. As measuring point operator, the charging point operator is obliged to collect and process the measurement data himself. He hereby pursues his own purpose (within the meaning of Art. 4 No. 7 DSGVO), so that he himself is responsible and not only the contract processor of the traction current provider. The MsbG legally assigns the operation of the measuring point as a task to the measuring point operator, § 3 para. 1. In addition, it orders when a data processing is permissible within the scope of measuring point operation, § 50 MsbG. Data processing is permitted if the charging post user 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, in § 50 para. 1 no. 1 to No. 4 MsbG. 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, § 50 para. 1 No. 1 MsbG; within the scope of application of the MsbG, this regulation takes precedence over the DSGVO. 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, § 50 para. 1 no. 3 MsbG. The legal obligation of the charging station operator also results from the MsbG. Insofar as data processing is carried out within the scope of these legally stipulated purposes, it is permissible. Since these purposes differ significantly from those of the traction current supplier, it should be clear that the charging station operator does not act as an order processor for the traction current supplier either, since the transmission of the processed data for billing purposes is one of his own original tasks, § 60 MsbG. Charging column operators and traction current suppliers thus stand side by side 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 DSGVO also applies to energy measuring. However, the data protection provisions of the MsbG constitute permissible specifications within the meaning of Art. 6 para. 2, para. 3 DSGVO. However, the MsbG only regulates the rights of those affected by data processing rudimentarily. For example, the MsbG does not contain any provisions to inform the data subject about the type and scope of data processing comparable to Art. 13, 14 DSGVO. The obligation under Art. 13 DSGVO to provide the data subject with comprehensive information is therefore not superseded by the MsbG, so that charging station operators must also inform customers of the type and scope of data processing in accordance with Art. 13 DSGVO. This obligation also applies to the traction current supplier. He can, however, fulfil this obligation without any problems when concluding a contract with the customer.

The MsbG also contains only a few provisions with regard to the right to information of the person concerned. Overall, the right to information under Art. 15 DSGVO clearly goes beyond the comparable provision in the MsbG, so that the data subject can request information on the type and scope of data processing based on of the provision in Art. 15 DSGVO. 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 in the company in advance, which clearly defines how requests for information from data subjects are to be handled.

Checklist for a privacy statement:

Mandatory information

Examples/Comments

Name and contact details of the responsible person

Address, e-mail, telephone, fax

Processing purpose

E.g. creation of invoice

Legal basis for the processing

E.g. performance of a contract pursuant to Art. 6 para. 1 lit. b) DSGVO

Storage duration or criteria for determining the storage duration

E.g. until the end of the contractual relationship

Rights concerned

Information

Correction

Deletion

Right to be forgotten etc.

Right to appeal to supervisory authority

E.g. if the data subject wishes to complain about unlawful processing

Other possible data

Examples/Comments

Contact details of the data protection officer 

Obligation exists only if there is also an obligation to appoint a data protection officer. 

Legitimate interests 

Where data processing is based on the existence of legitimate interests, those legitimate interests must at least be set out briefly

Recipients or categories of recipients 

If the personal data are to be disclosed, the recipients must be designated or at least the categories of recipients must be identified. 

 

Contact person:

Sebastian Laoutoumai, LL.M.
Senior Associate
Essen

E-Mobility in Labour Law: Individual Labour Law Aspects of the Change to Alternative Drives for Company Cars

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

As of January 1, 2019, the law in force since the end of 2016 on tax incentives for electro mobility in road traffic was amended to include further preferential regulations for the use of a vehicle with an electric drive. The new regulations apply to electric and hybrid electric vehicles that meet the requirements of § 3 Para. 2 No. 1 or 2 EmoG, i.e. those that have a carbon dioxide emission of no more than 50 grams per kilometre driven or whose range under 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, § 8 Para. 2 in conjunction with § 6 para. 1 no. 4 sentence 2 no. 2 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, § 8 para. 2 in conjunction with § 6 para. 1 no. 4 sentence 2 no. 2 EStG. § 6 para. 1 no. 4 sentence 3 no. 2 EStG. 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 labour law framework conditions and which labour law aspects must be taken into account in this changeover. Against the background of the significantly more favourable taxation of an electric service vehicle, the question arises from the employee's perspective as to whether, conversely, there is a claim to the provision of 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 his work performance and therefore has the character of remuneration in the form of remuneration in kind in accordance with § 107 (1) GewO. For the purpose of wage protection, employees are to 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, § 107 para. 2 sentence 1 GewO. 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, § 134 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 nature and quality. An average type and quality for a non-cash payment is measured by the average of the class resulting from the obligation, § 243 Paragraph 1 BGB. 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 from them downwards. A negative deviation from conventional motor vehicles could result from the technical characteristics of electric vehicles, which are primarily reflected in the refueling or charging process and the 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 service vehicle

There are essentially three options for charging an electric service vehicle:

  • Charging at public or external charging facilities, comparable to refueling at conventional filling stations;
  • Charging at the employee's place of residence, possibly at a charging infrastructure set up by the employer;
  • Charging in the company at the employer's loading facilities there.

Charging at public charging stations

There are widespread concerns against recharging by external providers that, in contrast to "normal" petrol stations, there is not sufficient nationwide recharging infrastructure. By way of comparison, in 2018 there were 14,118 road filling 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 filling station or charging station, the figure is approximately 540 petrol and diesel vehicles per filling 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):

 

https://www.luther-lawfirm.com/fileadmin/user_upload/images/ladesaulenmap.png?1570790397

 

Loading by the employee

Therefore, loading 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 service vehicle.

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, he bears the costs and risks and is subject to a regular inspection obligation as the plant operator responsible for the condition (§ 5 BGV A3). In both constellations, the employee is thus subject to more "burdens" than if he were to use a conventional motor vehicle: if the employee becomes the owner of the necessary charging infrastructure, he bears liability risks and has to accept installation and maintenance in his 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 "wallbox", in the case of a tenancy the property owner. In addition, the spatial or constructional situation may not allow a facility to be installed everywhere. Generally problematic 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 service vehicle. 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

Loading at the employer's place of operation 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 service vehicle 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 "defect" of electric vehicles could result from the much more time-consuming charging process compared to conventional refueling. 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 a conventional refueling process. However, this duration cannot be seen as a negative quality deviation at least if charging can take place during working hours in the employer's area or overnight at the employee's premises. In these constellations, recharging during idle times, which occur anyway, is rather an advantage compared to refueling, since no additional time has to be spent on visiting a filling station.

The costs incurred for recharging also do not generally 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, only available in German language):

Model

Consumption

kWh/100km)

Expenses / 100km

Renault Zoe Z.E. 40

20,3

6,09 €

BMW i3

13,6

4,08 €

VW e-Golf

12,7

3,81 €

Tesla Modell S (100 kWh)

22,6

6,78 €

Nissan Leaf (40 kWh)

20,6

6,18 €

Kia Soul

14,3

4,29 €

Smart electric drive

13,1

3,93 €

VW e-Up

11,7

3,51 €

Is there a defect?

A negative deviation of the remuneration in kind of average kind 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 internal combustion engine. This cannot, however, be assessed in general. If the employee is provided with charging infrastructure at the place of work which he 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 deviating from the average 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 company car outside his regular working hours. While charging at the place of work during daily working hours or at the employee's place of residence during his or her off-duty period is carried out almost incidentally and does not tie up any additional time for the employee, something else may arise if the employee is forced to load while on the move and the loading 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 of recharging can - at least theoretically - be used by the employee for any activities and thus also for relaxation. If the employee can use the loading time for his 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 loading times at external locations, the principles could also be applied to business travel times. In its judgment of 17 October 2018 - 5 AZR 553/17, the BAG assumes with regard to travel times that the remuneration pursuant to § 611 (1) BGB 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, loading 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 service vehicle?

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 concerns company car clauses in employment contracts or company car leasing contracts or company car guidelines do not yet regularly take electric cars into account, the employee can only demand an electric service car with the employer's consent. 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 he 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 service vehicle if he 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 vehicle.

 

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 (labour) 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 person:

Stefanie Prehm
Partner
Cologne

E-bike instead of e-car - tax privileges for electric bicycles

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 credentials in the area of E-Mobility

Selected current mandates in the area of E-Mobility

  • Ekoenergetyka-Polska, Polish charging infrastructure provider - advice in connection with the submission "Charging infrastructure new construction of bus depot Moosach"
  • Eneco eMobility - Acquisition of 100% of the shares of the German chargeIT mobility GmbH
  • Mitsui & Co. Ltd. - Participation in the (e-)ride pooling provider Clevershuttle
  • Leading energy provider - Europe-wide roaming agreement as charge point operator (CPO) with e-mobility providers (EMP) to use charging stations for e-mobiles
  • Municipal Utility - Opportunities to participate in an e-mobility service provider
  • Leading energy supplier - advice on business models for the operation of charging stations and the associated drafting of contracts
  • Leading E-Mobility Provider - Comprehensive advice on how to enter the German market
  • New Motion - Cooperation with various companies on the BMWi funded project ELBE (Electrifying Buildings for EV's)
  • Alpiq AG - Framework agreement for the development of an E-Mobility Software Suite
  • Berliner Verkehrsbetriebe - Conversion of the vehicle fleet with approx. 100 cars to vehicles with electric drive
  • Leading automotive supplier - Acquisition of an interest in a start-up company in the leasing of electric vehicles
  • E-Mobility-Provider - Representation in an administrative offence procedure of the measuring and calibration authority of a federal state
  • Leading energy supplier - advice on billing models for e-mobility services
  • Leading energy supplier - advice on unbundling requirements in the e-mobility business segment
  • Joint venture from the energy and automotive sector - consulting on business models for charging stations in the B2B sector
  • Petrol station operators - advice on setting up charging stations and drafting contracts with charging station operators
  • Distribution network operators - advice on incentive regulation in connection with the connection of private charging stations (wallboxes)
Further information and downloads

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"

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