Way clear for the expansion of electric vehicle charging in Germany after EU ruling

The expansion of fast-charging stations at German motorway service stations, which is crucial for the ramp-up of electromobility, has stalled for some time. A legal dispute over concession contracts relating to charging infrastructure is behind the delay. However, a decision of the Court of Justice of the EU (CJEU) late last month should bring new momentum to one of the core projects of the German mobility transition.

The context

About 90% of the rest areas on German motorways are operated by the companies Autobahn Tank & Rast and Ostdeutsche Autobahntankstellen on the basis of around 360 concession contracts with the German state.

Between 1996 and 1998, 280 of those 360 concessions were awarded to the predecessor of the two operators without a public tender for a period of up to 40 years. At that time, the non-competitive contract fulfilled the requirements for a so-called in-house transaction under German procurement law. According to that law, non-public tenders must be issued by way of exception if the contracting authority exercises control over the contractor similar to that exercised over its own department and if the contractor carries out most of its activities for that contracting authority (in-house privilege). At that time, the predecessor of the current operators was 100% owned by the German state and met the in-house-criteria. However, that changed in 1998 with the privatisation of Tank & Rast.

In 2021, as part of the mobility transition, the German state extended its existing concessions to include the construction and operation of charging stations for electric vehicles at rest areas. This extension of the contract was also carried out without a competitive procedure. This was based on another exception to German procurement law, according to which a subsequent significant change to an existing concession is permitted under certain circumstances without conducting a new procurement procedure – among other things, if the subsequent change became necessary due to unforeseeable circumstances.

Fastned Deutschland GmbH, which operates charging stations in Germany, appealed to the Düsseldorf Higher Regional Court against this extension of the concessions to charging stations, arguing that the contract award should have been subject to a competitive tender process. It claimed that the exception the state relied upon does not apply to concessions that – as in the present case because of the in-house privilege – had originally been awarded without a call for tenders. It argued other providers should not be practically excluded from the chance to win contracts relating to the expansion of fast charging stations at service stations.

How the CJEU became involved

In 2023, the Düsseldorf Higher Regional Court referred the matter to the CJEU for a preliminary ruling. It saw the extension as a significant change within the meaning of German procurement rules, which in principle triggers a new award. However, it was unclear to the court whether the exception to the obligation to tender in the event of an extension of the contract due to unforeseeable circumstances also applies if the original contract was not put out to tender, due to the in-house privilege. In addition, the question arose as to whether the exception also applies in cases where the in-house criteria are no longer met at the time of the subsequent contract extension.

What the CJEU found

An EU directive from 2014, which sets out rules on public procurement, was relevant to the dispute at hand. The CJEU reviewed article 72 of the directive, which forms the basis for the ‘unforeseen circumstances’ exception in German law, and clarified that the exemption also applies if the concession was originally awarded in-house without a call for tenders and the subsequent contract amendment took place at a time when the in-house privilege no longer applies.

In addition, contrary to Fastned's legal contention, the CJEU held that that article 72 of the directive does not require the national courts to review the lawfulness of the initial award of a concession in the context of an action for annulment of an amendment to the concession where all the time-limits for challenging the initial award have expired.

Our view and what comes next

From a practical point of view, the decision is to be welcomed, as the CJEU has committed itself to the principle of legal certainty and against the possibility of asserting the illegality of deficiencies in procurement procedures for an unlimited period of time.

In a 2022 ruling, the CJEU ruled that subsequent contract modifications without a tendering process were inadmissible if, in the case of a corporate restructuring, the original conditions for an in-house transaction without a tendering process subsequently ceased to exist. At the time, the CJEU relied, among other things, on the overarching objective of public procurement to ensure the broadest possible competition. With its April 2025 ruling, the CJEU is now shifting this objective in favour of legal certainty and greater practicality.

We expect the Düsseldorf Higher Regional Court to implement the CJEU’s latest judgment in a timely manner and thereby clear the way for a nationwide expansion of the charging infrastructure and, by extension, provide greater confidence in electromobility in Germany.