Partner Madrid
"Spain’s e-mobility legislative framework was significantly updated and expanded in 2022 and 2023."
Spain’s e-mobility legislative framework was significantly updated and expanded in 2022 and 2023 as the Spanish government ramped up its promotion of the decarbonisation of the transport sector to ensure the country’s energy transition targets are met between 2030 and 2050.
To this end, important new legislation was approved requiring the construction of EV charging infrastructure and expanding and clarifying the applicable legal frameworks. Important tax incentives were also approved to promote the purchase of EV vehicles and the installation of charging points including a deduction of 15% (to a maximum of €20,000) on personal income tax. This measure is in addition to others such as the ‘Moves Plan III’, a €1.2bn fund originally launched in 2021 which grants public subsidies for the purchase of electric vehicles across Spain’s autonomous communities.
Legislation has been approved to allocate financial resources granted under the Next Generation EU fund via the Recovery, Transformation and Resilience Plan (“RTRP”). The first Strategic Project for Economic Recovery and Transformation approved under the RTRP was for the electric vehicle sector (“PERTE VEC”). The PERTE VEC sets out a model for collaboration between different sectors to promote the manufacture and development of EVs in Spain using sustainable methods, including building 80,000-110,000 EV charging points nationwide by 2023.
Initial measures to facilitate the roll out of EV charging infrastructure: RDL 29/2021¹ (as amended by RDL 5/2023)²
RDL 29/2021 promotes and facilitates the roll out of EV charging points and is one of the first pieces of regulation to unambiguously do so in Spain. It also includes various measures (which have been amended where needed) to facilitate a fast deployment of EV charging infrastructure including:
Requirement to install charging stations:
- as of 1 January 2023, (a) all existing non-residential private buildings with 20+ parking places, either indoors or in an outdoor space attached to the building, and (b) all 20+ spaces in detached, outdoor parking areas must have a minimum number of charging stations proportional to their total number of parking spaces; and
- building on the provisions of Law 7/2021 on Climate Change and Energy Transition, as of 22 May 2021, state highway concessionaires with existing contracts will be required to install at least one EV charging point with a capacity corresponding to their sales volume.
On 24 October 2022, Order TED/1009/2022 was approved, establishing the list of fuel suppliers obliged to install EV charging station infrastructure, as well as the related exceptions and technical requirements.
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"EV charging infrastructure with a power output of over 3,000 kW is categorised as energy infrastructure for public utility for the purposes of expropriation."
Measures to simplify the installation of charging stations:
- RDL 29/2021 allows for the installation of charging points and related infrastructure in protected areas of state-owned main roads with prior authorisation by the relevant ministry, provided that they are removable and road safety is assured;
- installing and operating charging points with power equal to or less than 3,000 kW, do not require a permit, license or authorisation for construction, installation or operation – including environmental authorisations or those of a similar nature³ from public authorities. Instead, they will require a “responsible declaration” (“declaración responsable”) regarding compliance with the applicable, existing regulations;
- EV charging infrastructure with power over 3,000 kW will be subject to administrative authorisations in accordance with article 53 of the Electricity Sector Law, including (i) Prior Administrative Authorisation and related environmental impact assessments; (ii) Construction Administrative Authorisation; and (iii) Operating Administrative Authorisation; and
- EV charging infrastructure with a power output of over 3,000 kW is categorised as energy infrastructure for public utility for the purposes of expropriation.
Local tax rebates:
RDL 29/2021 gives local governments the option to approve tax rebates (“bonificaciones potestativas”) for homologated EV charging infrastructure through the amendment of Royal Decree Law 2/2004, of 5 March regulating local taxes:
- up to 50% on the real estate tax (IBI) for properties with EV charging points;
- up to 50% on the business tax (IAE) quota for taxpayers who pay tax under the municipal quota and who have installed EV charging points on premises used for business purposes; and
- up to 90% on the construction, installation and works tax (ICIO) for the construction, installation or works for the installation of EV charging points.
New sanctions regime adopted for EV charging:
RDL 29/2021 introduced new sanctions within the Electricity Sector Law relating to electricity distribution companies and their obligation to properly respond to access and connection permit requests relating to EV charging infrastructure.
Furthermore, in July 2023, the Spanish Market and Antitrust Commission (CNMC) started a public consultation procedure⁴ to investigate the challenges of installing and commissioning EV charging infrastructure for both public and private access charging points.The term to participate in this public consultation, ended on 29 September 2023.
Legal framework for charging services: Royal Decree 184/2022 of 8 March, regulating energy charging services for electric vehicles and Ministerial Order TED/445/2023⁵ on Information obligations for companies providing electric vehicle recharging services.
On 19 March 2022, the long-awaited Royal Decree 184/2022 of 8 March which regulates the energy charging services for EVs (“RD 184/2022”) was published in the Spanish Official Gazette. RD 184/2022 develops the EV charging services provisions contained in article 48 of the Electricity Sector Law, defining the roles of different parties in EV charging services and infrastructure and contributing to the construction and installation of e-charging points.
RD 184/2022 defines the parties that provide and operate e-charging services, including the rights and obligations of each party. The key provisions of RD 184/2022 are as follows.
"The main function is the delivery of energy, free of charge or for a fee, through EV charging services under conditions that allow charging in an efficient manner and at minimum cost."
(i) Definitions of the main parties providing and operating e-charging services and infrastructure:
- charging point operator (“CPO”): a natural or legal person holding the operating rights to an EV charging station. CPOs are generally electricity consumers;
- under RD 184/2022, a CPO may assign or transfer, in whole or in part, the rights to operate EV charging point infrastructure to third parties, who in turn assume the rights and obligations of the CPO under RD 184/2022; and
- electric mobility service provider (“EMSP)”: a company that participates, as a third party, in the provision of energy charging services, without owning EV charging point infrastructure or their operating rights, with whom EV users contract all the services related to the charging of an electric vehicle.
(ii) General principles for the provision of charging services:
- the main function is the delivery of energy, free of charge or for a fee, through EV charging services under conditions that allow charging in an efficient manner and at minimum cost for the user and the electricity network;
- this may be provided by any consumer, provided that they comply with the obligations and requirements of RD 184/2022;
- it may also be carried out directly or through a third party, in an aggregated manner by single or multiple owners through interoperability agreements (“acuerdos de interopelabilidad”);
- EMSPs shall carry out their activity under fair and non-discriminatory market conditions. CPOs shall not grant preferential treatment to them through the application of an unjustified price difference that may hinder competition and ultimately lead to higher prices for consumers or undertake any other practice involving undue preferential treatment;
- providers of publicly accessible EV charging points must ensure that their prices charged are reasonable, easily and clearly comparable, transparent and non-discriminatory. Nevertheless, discounts, special offers and promotions may be applied to users, provided they do not contravene the aforementioned principles, especially the guarantee of non-discriminatory treatment in relation to prices charged;
- distribution companies must cooperate on a non-discriminatory basis with providers of charging services for vehicles at charging points accessible to the public; and
- charging services must be provided under conditions that guarantee the universal accessibility of EV charging point infrastructures for public access.
(iii) Interoperability Agreements: can be entered into between the CPO and the EMSP for the provision of energy charging services, based on transparency and non-discrimination between the participating parties. These agreements shall include the information necessary for compliance with the obligations of the EMSP.
(iv) Obligations of an electricity distribution company: a distribution company must cooperate on a non-discriminatory basis with the operator in the deployment of EV charging infrastructure, by providing the information corresponding to the access capacity of the distribution grid to accommodate the power of the projected charging point station.
"Order TED/445/2023 was published as an answer to the need to regulate the procedure for submitting information to be submitted by energy recharging service providers"
(v) Reporting obligations: information on EV charging points for public access vehicles shall be made available by both the CPO and the EMSP to the public and the Ministry, through the National Access Point for traffic information.
Order TED/445/2023 was published as an answer to the need to regulate the procedure for submitting information (and the content of such information) to be submitted by energy recharging service providers in connection with EV charging infrastructure.
Order TED/445/2023 pointed in the direction of regulating the content and procedure for the submission of information to the Ministry for Ecological Transition and the Demographic Challenge (“Ministerio para la Transición Ecológica y el Reto Demográfico”) (“Ministry for Ecological Transition”), through a regulatory mechanism that allows energy recharging service providers to comply with their obligations imposed by the aforementioned applicable laws, in a unified and regulated manner.
The provisions of Order TED/445/2023 apply to companies providing EV charging services that act as public access CPOs as well as to EMSPs.
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Footnotes
[1] Royal Decree Law 29/2021, of 21 December on the Adoption of Urgent Measures in the Energy Field to Promote Electric Mobility, Self-consumption and the Deployment of Renewable Energies.
[2] Royal Decree-Law 5/2023, of 28 June, adopting and extending certain measures in response to the economic and social consequences of the Ukrainian War, supporting the reconstruction of the island of La Palma and other situations of vulnerability; transposition of European Union directives on structural changes to commercial companies and work-life balance for parents and carers; and implementation and enforcement of European Union law.
[3] Except in buildings of historical-artistic heritage with the category of asset of cultural interest (“BIC”).
[4] https://www.cnmc.es/consulta-publica-de-la-cnmc-sobre-infraestructuras-de-recarga-para-vehiculos-electricos.
[5] Order TED/445/2023, of 28 April, which regulates the information to be information to be sent by energy recharging service providers to the Ministry for Ecological Transition and the Demographic Challenge, the Autonomous Demographic Challenge, to the Autonomous Communities and to the Cities of Ceuta and Melilla
[6] – Law 7/2021, of 20 May, on Climate Change and Energy Transition.
Law 24/2013, of 26 December, on the Electric Sector.
– Order TED/445/2023, of 28 April, which regulates the information to be information to be sent by energy recharging service providers to the Ministry for Ecological Transition and the Demographic Challenge, the Autonomous Demographic Challenge, to the Autonomous Communities and to the Cities of Ceuta and Melilla.
– Royal Decree 184/2022, of 8 March, Royal Decree 184/2022, of 8 March, regulating the energy charging services for electric vehicles.
– Royal Decree-Law 29/2021, of 21 December, adopting urgent measures in the energy field to promote electric mobility, self-consumption and the deployment of renewable energies.
Royal Decree-Law 23/2020, of 23 June, approving measures in the field of energy and other areas for economic recovery.
– Royal Decree-Law 5/2023, of 28 June, adopting and extending certain measures in response to the economic and social consequences of the Ukrainian War, supporting the reconstruction of the island of La Palma and other situations of vulnerability; transposition of European Union directives on structural changes to commercial companies and work-life balance for parents and carers; and implementation and enforcement of European Union law.
– Strategic Project for Economic Recovery and Transformation for the Electric Vehicle Sector.
– The Recovery, Transformation and Resilience Plan.
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