New ECJ judgement on e-charging: supply chain for the supply of electricity confirmed

Services of the e-mobility operators

As in the judgement case, it is common practice for e-mobility operators (e-mobility providers) to offer users of electric vehicles access to a network of charging points. This means that users do not have to register with each charging point operator, but only have contractual relationships with the e-mobility provider. In return, the operator provides users with information about the locations, prices and availability of the charging points, usually via an app.
In the judgement case, the e-mobility operator billed the users on a monthly basis. The price consisted firstly of the amount of electricity supplied and secondly of a fixed fee for various services (functions in the app, such as route planner to the charging station, prices and availability in real time), which was also charged even if no charging station was actually used that month.

Delivery as part of a supply chain

In response to the first question to the European Court of Justice (ECJ), it clarified that the supply of electricity for charging an electric vehicle is a supply within the meaning of the VAT System Directive (VAT Directive). However, the second question is far more interesting. The Swedish referring court asked the ECJ whether there is a supply chain in the case described: first from the network operator to the e-mobility operator and then from the e-mobility operator to the users - especially in view of the fact that the users decide on the quantity, time and place of charging.
According to the ECJ, two conditions must be met for this to be the case: Firstly, the e-mobility operator must act under a commission contract in its own name but for the account of the users. Secondly, the actual supply of electricity from the grid operator to the e-mobility operator must not differ from the supply of electricity from the e-mobility operator to the users.

The ECJ also affirmed this in its judgement.

Do services constitute independent services?

This was surprising insofar as the e-mobility operator indisputably adds service elements to the supply of the network operator. Nevertheless, the ECJ affirmed the similarity of the two supplies.

The ECJ returned the question of whether the service elements of the e-mobility operator constitute independent services or dependent ancillary services to the referring court. However, it clarified that both supplies in the supply chain would be of the same nature even if the e-mobility operator's services were independent supplies.

Practical consequences

The ECJ clearly distinguishes the present judgement from the previous judgements (Auto Lease Holland - C-185/01 Function as lender and Vega International - C-235/18 Fuelling cards in a group structure) and clearly establishes the existence of a supply chain. However, this may make things more complicated for e-mobility operators. The location of the electricity supply will generally be at the location of the charging station. This may result in VAT registration obligations. In addition, the VAT consequences of the service elements must be examined if they constitute an independent supply (reverse charge, if applicable). If the e-mobility operator is merely a reseller of the electricity and does not engage in any other activity, there are also consequences for the supply of the grid operator to the e-mobility operator.

ECJ (Fifth Chamber), Judgment of 17 October 2024 - C-60/23