The German Federal Cartel Office (“FCO”) has launched a sector inquiry in the provision and marketing of publicly accessible charging infrastructure for electric vehicles. According to the FCO’s president, Andreas Mundt, the FCO has received several complaints about prices and conditions at the charging stations.
Background
Germany has set itself the ambitious target to reduce emissions from transport by 40 to 42 percent (compared to 1990) by 2030. One aspect of this ambitious strategy is the government’s aim to have seven to ten million electric vehicles registered in Germany by that date.
A bottleneck in increasing the number of electric vehicles on the road is the charging infrastructure. The German government aims to have a total of one million charging points available by 2030, which is the key milestone of its “Masterplan Charging Point Infrastructure”, adopted in November 2019. Over the next two years alone 50,000 public charging points are to be set up. The government wants to promote charging points at customer car parks and at gas stations. Larger parking spaces belonging to residential, company or other buildings will be obliged to offer charging infrastructure in the future.
Whilst the market is growing and evolving, the FCO received complaints about prices and conditions at charging stations.
Against this backdrop, the FCO has opened a sector inquiry. Sector inquiries are a relatively new tool in the FCO’s arsenal and the authority seems increasingly keen to use it. There are other ongoing sector inquiries in the hospital and waste management sectors.
Scope of investigation
The scope of the charging infrastructure inquiry is broad: the FCO will not only look into prices at publicly accessible charging points but will also conduct a comprehensive assessment of the following issues:
- Access to potential locations for charging stations.
- The various approaches of cities and municipalities to providing suitable locations for charging points and the effects of these approaches on competition between the operators of charging stations.
- The competitive framework conditions for installing charging stations on motorways.
Process
The FCO will conduct the inquiry in two phases:
- In the first phase the focus will primarily be on the current status of publicly accessible charging infrastructure and the way in which cities, municipalities and other players plan and provide suitable locations.
- The second phase will then involve a more detailed investigation in particular regarding conditions for access to charging stations for mobility service providers and consumers.
Investigation powers
In the course of its inquiry, the FCO will consult with and interview the main market participants. The authority can potentially send formal requests for information which must be complied with by the addressees. Non-adherence can be sanctioned by the regulator.
The exact duration of the proceedings is hard to predict. A good proxy might be the FCO’s inquiry into the motor fuel sector, which took roughly three years.
Outlook
Sector inquiries are an indication of the FCO’s future enforcement priorities. In that respect, they are an important tool for the FCO to gather in-depth market data and market knowledge. This knowledge then flows into the authorities’ practice in two ways:
- It may indicate that some undertakings are involved in anti-competitive behaviour, in which case the FCO may decide to open separate infringement proceedings;
- For merger control proceedings the sector inquiries often constitute one the building blocks for the FCO’s assessment of the notified transaction. One very good example is the food retail sector inquiry of 2014 that still plays a vital role for the assessment of transactions in that sector.
The newly launched sector inquiry is of additional significance since it is conducted in the energy sector. Whilst this sector is largely regulated in Germany, charging infrastructure has not yet been subject to the comprehensive regulation of electricity networks. Hence, it is also likely that the FCO’s insights will be the starting point of further regulation in the energy sector.
All these factors highlight that this inquiry will be a unique opportunity for stakeholders to be heard when it comes to designing the competition framework for one of the most important aspects of electric mobility. Undertakings concerned therefore need to carefully consider their answers and comments to the FCO. In addition, even if not formally asked by the FCO, stakeholders should consider to comment and provide input. Additionally, the FCO usually publishes an interim report on which industry members can comment.
