Over the passing decades, especially after Poland’s accession to the European Union, legislators regulating the energy sector in the broadest sense have faced the daunting challenge of implementing a number of EU legal acts into the framework of Poland’s normative order [1]. Directives such as 2018/844 on the energy performance of buildings, amending directive 2019/692 or directive 2012/27 have had an impact on the Polish energy sector. The legislator, obliged by the content of the European Union acts, was forced to implement national legislation and adapt it accordingly to the highly developed energy sector. The existence of a technical infrastructure, which had been built up over many years, and the operation of companies with a strong, established position on the market, meant that the basic area in which legislative activities related to the implementation of the regulations were moving, was the study of the adaptation of standards to real conditions [2]. The situation is different in relation to electromobility legislation. As rightly noted by the authors of the Commentary to the Act on Electromobility and Alternative Fuels (hereinafter ‘the Act’), edited by F. Grzegorczyk and A. Mitusia, “A characteristic feature of the situation analysed here is that – unlike in other energy sub-sectors – a more difficult task than usual has appeared before the legislator; the Act under comment is aimed at regulating the principles of operation of a market that is being formed – a market in statu nascendi. Many of the previous regulatory changes in the energy area consisted in the legislator’s intervention in the existing legal, capital or business structures (such as unbundling – i.e. separation of regulated activities, see F. Grzegorczyk, The electricity transmission system operator. Understanding EU Energy Policy, Warsaw 2012, pp. 17-23). In the case of the electromobility market, its development stage is initial and the legislator aims to create the target legal framework and develop the market itself. The interpretation, in particular the literal interpretation of certain intertemporal provisions, allows the conclusion to be drawn that certain solutions of the Act relate to future states (conditioned to a large extent by the introduction of certain technological solutions).”
In drafting the legislation, the legislator was guided by the desire to shape the electromobility market model as simply as possible from the customers’ perspective. Despite navigating the administrative-legal methodology of regulation, the legislator seemed to approach many aspects in accordance with the principle of freedom of contract expressed in Article 353 (1) of the Civil Code, apparently recognising that such a model would ultimately prove more beneficial to consumers. According to the provisions of the Act of 11 January 2018 on electromobility and alternative fuels, which is confirmed in their considerations by the authors of the Commentary cited above, the customer may use various categories of legal transactions – from one-off to long-term contracts – when using electric and hybrid vehicle charging services. At the same time, freedom is preserved in the methods of settlement between the customer and the service provider.
The legislator uses new terminology, previously unknown to other legislation. From the perspective of the Act under discussion, one of the important issues is the concept of the ‘operator of a public charging station’, the definition of which was presented in a previous article – ‘Electromobility – definitions and legal basis’ [3]. The operator in the system performs the functions of a charging station manager, who ensures that those wishing to use his services have access to the relevant infrastructure. It is the operator that performs the relevant legal actions with distribution system operators, energy sellers and suppliers in order to create the right conditions for potential customers. Pursuant to Article 3(1)(1)(a) of the Act, the operator of a publicly accessible charging station is obliged to ensure that at least one charging service provider conducts its business at the station, bearing in mind, importantly, Article 3(1)(10) of the Act, which guarantees charging service providers non-discriminatory treatment in terms of access to the station.
According to Article 2(7) of the Act, the operator of a public charging station is defined as the entity responsible for the construction, management, operational safety, operation, maintenance and repair of a public charging station [4], however, as indicated in the literature, the list indicated in the commented definition is not a conjunction – at least at the beginning of the construction of a network of public charging stations, the operator does not perform all these functions. Indeed, according to Article 64 of the Act, it is the operator of the electricity distribution system with jurisdiction over the location of the publicly accessible charging station indicated in the plan for the construction of publicly accessible charging stations that builds such a station. However, due to the wording of Article 65(1) and (2) of the Act, the operator of a generally available charging station built by the distribution system operator at the request of the head of the village (mayor, town president) is appointed by the President of the Energy Regulatory Office. Thus, some operators of generally available charging stations will not be responsible for their construction (K. Kokocińska, J. Pokrzywniak (eds.), Ustawa o elektromobilności i paliwach alternatywnych. Commentary, Warsaw 2020).
The gradual emergence of electric vehicle charging facilities in Poland requires appropriate regulatory provisions to safeguard the interests of consumers and ensure the safety of energy trade between the charging station operator and the user of electric cars [5].
Article 3 of the Act in question contains a catalogue of obligations for charging station operators, which include.
– ensuring that at least one charging provider is operating at a station;
– ensuring that equipment meets technical requirements;
– ensuring that the testing of the station in question is carried out by the Office of Technical Inspection;
– ensuring safe operation of the public charging station;
– equipping stations with appropriate software;
– the conclusion of contracts for the provision of electricity distribution services;
– to provide charging service providers with the data necessary for billing for the charging service provided;
– concluding contracts for the sale of electricity for the operation of the charging station;
– accounting for energy losses resulting from the operation of charging stations;
– the provision of information on the use of the station and its operating instructions;
– to provide charging providers with access to a particular station on the basis of a market-based contract;
– agreeing with the road traffic management authority (General Directorate for National Roads and Motorways, Marshall of the Voivodship or Starost) the number of parking spaces that can be designated at public charging stations.
In addition to the provision of the charging services themselves, Article 3(2) of the Act mentions that the provider of these services shall also ensure that the charging station infrastructure can be used for the purposes of charging, including for the purposes of registering the user of an electric vehicle or hybrid vehicle, authorising the charging session, keeping records of information about the charging session, making information about the charging session available to the user, charging and collecting payments, issuing sales documents and handling requests and complaints, and shall make available, on its website, information about the price of the charging service and the conditions for its provision. These provisions are intended to guarantee a holistic regulation and eliminate the freezing effect of an operator theoretically allowing open use of a station while at the same time system or infrastructure impediments prevent third parties from using the station.
There are, however, some restrictions related to the possibility to act as an ‘operator’. According to Article 3a(1) of the Act, the operator of an electricity distribution system may not be the operator of a publicly accessible charging station, the owner of such a station or the provider of a charging service. However, this provision has exceptions, which are regulated in Article 3a(2). On the other hand, as can be seen from Article 6, the operator of a publicly accessible charging station may perform the tasks of a charging service provider.
Also relevant from the perspective of the issue at hand is Article 3c of the Act, which regulates the prohibition on the sale of a public charging station to another electricity distribution system operator, and Article 4 concerning the use of a public charging station by a charging service provider on the basis of an agreement concluded with the station operator.
According to Article 8, the operator of a public charging station shall ensure that the electricity supplied to the public charging station is used exclusively for:
- charging;
- charging or replacing the battery used for the propulsion of an electric vehicle, hybrid vehicle, zero-emission bus or motor vehicle, within the meaning of Article 2, point 32 of the Act of 20 June 1997. – Road Traffic Law, which is not an electric vehicle;
- to ensure the operation of this station.
As the authors of the Commentary, edited by F. Grzegorczyk and A. Mitus, point out, the restriction on the possibility of other uses of electricity should be linked to certain benefits that constitute an element of support for the electromobility market (such as a reduced connection fee).
The form of this article, which is primarily intended to give a concise overview of the basics of the topic, limits the possibilities for a full presentation of the status of charging station operators. Nevertheless, the described outline of the subject matter briefly presents the fundamental elements of knowledge about the rights and obligations of operators. Due to the professional nature of the target group covered by the provisions of the Act, which is of interest to entrepreneurs and lawyers rather than consumers, the designed norms may appear quite difficult to understand for those unfamiliar with the subject matter, especially when the addressee of the norms is unable to distinguish between basic concepts of energy law. If the operator of a publicly accessible charging station is not its owner, the situation may become even more complicated. In such a case, the structure of the bonding relationship described earlier is further enriched by the relationship between the operator and the owner of the station. A detailed discussion of this issue goes beyond the thematic outline of the article.
Today, as climate change becomes more and more apparent, it is becoming clear that we should try to act in a relatively environmentally friendly way. One of the opportunities to do this is to increase the number of electric cars and, consequently, the charging stations that will allow their use. As studies have shown, the development of charging infrastructure is key to the growth of the electric car market, resulting in reduced greenhouse gas emissions and improved air quality in cities [6]. Therefore, the development of new chargers for electric cars is not only important, but also necessary to achieve environmental goals. It is therefore worth investing in this growing sector to ensure a cleaner and more sustainable environment for ourselves and future generations.
REFERENCES:
[1] https://zpp.net.pl/zaciesnianie-polityki-energetycznej-ue-a-polskie-wyzwania/
[2] F. Grzegorczyk [in:] The Law on Electromobility and Alternative Fuels. Commentary, ed. A. Mituś, Warsaw 2021;
[3] https://prawodronow.pl/smart-mobility/elektromobilnosc-definicje-i-podstawy-prawne/
[4] https://www.cire.pl/pliki/13/2020/04_j_kozlyk_wymagania_prawne_stacji_punktow_ladowania_cr.pdf
[5]https://www.rp.pl/nieruchomosci/art37844581-punkty-ladowania-elektrykow-czyli-obowiazek-traktowany-po-macoszemu
[6]https://motofakty.pl/samochod-elektryczny-gdzie-polacy-chca-ladowac-elektryczne-pojazdy/ar/c4-16278073
SOURCES:
– legal acts:
- Act of 11 January 2018 on electromobility and alternative fuels (Journal of Laws 2022, item 1083, as amended).
- Act of 23 April 1964 Civil Code (Journal of Laws 2022.1360, 2022.06.29).
- Act of 10 April 1997 – Energy Law (Journal of Laws 2022.1385 t.j. of 2022.07.01)
- Act of 20 June 1997 – Road Traffic Law (Journal of Laws 2022.988 t.j. of 2022.05.11)
- Directive of the European Parliament and of the Council (EU) 2018/ of 30 May 2018.
– other:
- K. Kokocińska, J. Pokrzywniak (eds.), The Law on Electromobility and Alternative Fuels. Commentary, Warsaw 2020
- F. Grzegorczyk [in:] The Law on Electromobility and Alternative Fuels. Commentary, ed. by A. Mituś, Warsaw 2021
