In an 18 September 2019 decision, the Higher Administrative Court found that the operation of an electric filling station does not constitute the operation of an electricity company and is thus subject to the Trade Act.(1)
In general, the Trade Act applies to commercial activities that are conducted independently, regularly and to achieve an income.(2) Such activities typically require a trade licence. Further, 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 act's scope of application and do not require a trade licence or plant permit. Under Section 2(1)(20) of the act, the operation of an electricity company pursuant to Section 7(11) of the Electricity Act is excluded from the Trade Act.
In the case at hand, the Higher Administrative Court had to assess whether selling electricity through an electric filling station for cars and the construction of such a station constituted the operation of an electricity company and was excluded from the scope of the Trade Act's application.
An applicant filed for a plant permit to build and operate an electric filling station with the competent authority. The authority had doubts regarding the applicability of the Trade Act to the station and determined that it did not apply.(4) The authority essentially reasoned that the applicant was an electricity company, which therefore excluded it from the Trade Act's scope. The applicant filed an appeal with the Carinthian Administrative Court on the grounds that its activity did not fall under the definition of operating an electricity company. The court ruled in favour of the applicant and found that the Trade Act applied. The authority filed an appeal against the decision to the Higher Administrative Court.
The exemption from the Trade Act applies only to the operation of 'electricity companies', which are defined in Section 7(11) of the Electricity Act 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 Higher Administrative Court found that electric filling stations cannot be subsumed under the definition of an electricity company for the following reasons:
- It is irrelevant whether an operating company also produces electricity, like the applicant in this case, because the relevant activity refers only to the sale of electricity at an electric filling station.
- The operator of an electric filling station does not produce, transmit or distribute electricity. Further, the relevant activity includes only 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) of the Electricity Act. However, the court had to assess whether the sale of electricity fell under the 'delivery' function, which is defined as making electricity available.(5) The delivery of electricity usually refers to activities within or connected to the grid. Connecting a car to an electric filling station does not constitute access to the electricity distribution system. Moreover, the delivery of electricity pursuant to Section 7(45) of the Electricity Act is subject to various rules (eg, a change of supplier) which show that "making electricity available" refers to the supply of electricity to customers for a certain duration (ie, supplying a household with electricity).
- The sale of electricity through an electric filling station for cars does not fall within the scope of the definition of electricity companies. Therefore, the exemption under Section 2(1)(20) of the Trade Act does not apply.
The Trade Act's rules on trade licences and plant permits apply to the construction and operation of electric filling stations. Until now, the question of whether the act applies to such stations was unclear, as there was no relevant case law and the legal literature was divergent. In light of the current awareness of climate issues, 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 that it provides will be welcomed by market participants and authorities. However, it remains to be seen whether applying the rules of the Trade Act will have negative consequences on these stations – in particular, because plant permits will be required.
Endnotes
(1) VwGH 18 September 2019, Ro 2018/04/0010.
(2) Sections 1(1) and (2) of the Trade Act.
(3) Section 74 of the Trade Act.
(4) Section 348(1) of the Trade Act.
(5) Section 7(45) of the Trade Act.
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