By 1 January 2025, the owner or manager of a non-residential building with more than 20 parking spaces is obliged to install at least one charging point and the necessary infrastructure for further points. “The implementation of this obligation may be difficult due to the too short time remaining for its implementation,” say Marcin Żak and Jan Pruski, from the real estate team of the law firm Wolf Theiss.
The obligation stems from the Act of 2 December 2021 amending the Act on Electromobility and Alternative Fuels and certain other acts and is incumbent on the owner or manager of the building, but small and medium-sized entrepreneurs are exempt from it. In addition to the charging point, it is necessary to install ducts for electrical wires and cables to allow for the installation of further charging points if these stations are located inside the building or adjacent to the building.
Although the law has been in force since 22 February 2018, there are still many questions regarding the issues related to this obligation, notes Jan Pruski, of the law firm Wolf Theiss.
When is the owner and when is the building manager?
The obligation is incumbent on the owner or manager of the building, however, the legislator does not define the manager of the building, and does not indicate when it will be incumbent on it to fulfil the obligation. In the absence of a legal definition of a building manager, one must rely on the case law of the courts, which refers to the building manager. According to this, it is an entity that obtains the right to manage an object, which is someone else’s property in its own name and to the exclusion of the owner.
– It is the individual nature of the legal relationship that should determine whether the obliged entity will be the owner or the building manager. This means that the tenant of premises in a shopping centre will not be obliged to fulfil this obligation, however the tenant or user of the entire property, taking advantage of it and managing the property on his own behalf and to the exclusion of the owner, will be obliged to install a charging point, as well as channels for cables and electric wires, comments Jan Pruski.
Obligation to install even before 1 January 2025.
Sometimes, the obligation to install charging points and ducts and conduits for electrical cables will still arise before 1 January 2025. This applies to situations of design and construction of new non-residential buildings with more than 10 parking spaces associated with them. The obligation also applies to the conversion or renovation of a building where the cost of the work carried out in relation to the building envelope or technical systems of the building is more than 25% of the value of the building, not including the value of the land on which the building and car park are located. This applies where the cost of installing charging points and duct infrastructure does not exceed 7% of the total cost of the conversion or refurbishment and where the parking spaces are located inside the building and the conversion or refurbishment includes the car park or the electrical infrastructure of the building, or adjacent to the building and the conversion or refurbishment includes the car park or the electrical infrastructure of the car park. In this case, the obligation will fall on the entity that will design, construct or redevelop such a building.
Exemption from the obligation to install charging points.
The legislator has provided for the possibility of exemption from the obligation to install a charging point and channels for electric cables by ordering Article 12(6) of the Act on Electromobility and Alternative Fuels to be applied accordingly. This provision exempts small and medium-sized entrepreneurs within the meaning of the Act of 6 March 2018. – Entrepreneurs’ Law- from the obligation to install a charging point and infrastructure for the installation of further points during the construction of new buildings or their reconstruction. However, the legislator does not indicate what the relevant application of this provision means in the context of the obligation to adapt current buildings, This raises the question – whether the status of a small or medium-sized entrepreneur is to be relevant for the owner or also for the building manager.
Legislator’s oversight or perhaps a deliberate omission?
The Act on Electromobility and Alternative Fuels and its amendment constitute the implementation of European law into the Polish legal order, i.e. Directive 2018/844 of the European Parliament and of the Council (EU) of 30 May 2018 amending Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency. According to the Directives, Member States may introduce an exemption from the obligation for buildings owned and occupied by small and medium-sized enterprises. Meanwhile, our legislator considered that for buildings owned only by small and medium-sized enterprises, the provisions on the obligation to install charging infrastructure do not apply. The legislator omitted from the provision the issue of the actual management of buildings, i.e., for example, situations where a building is owned by a small entrepreneur but managed by a large entrepreneur and vice versa.
Member States have the possibility to introduce an exemption from the obligation, but European law suggests that the exemption should apply to buildings owned and occupied by small and medium-sized enterprises. The omission of the element of occupation of the building, and the entity managing the building, in the exemption provision is most likely an oversight by the legislator. This is of relevance in situations where the building is owned by a small or medium-sized entrepreneur, but, for example, its tenant (effectively being the tenant of the entire property and managing it) has the status of a large entrepreneur. Such an entrepreneur may also be obliged to fulfil the obligation to install charging points, comments Marcin Żak, senior associate from the real estate team at Wolf Theiss law firm.
What about the micro-entrepreneur?
The legislator indicates an exemption in relation to buildings owned by small and medium-sized entrepreneurs, but completely omits the micro-entrepreneur from the exemption. On the basis of the Entrepreneurs’ Law – a micro-entrepreneur cannot qualify for the definition of a small entrepreneur, because according to the statutory definition, a micro-entrepreneur is not a small entrepreneur. This indicates another oversight by the legislator, who does not indicate the micro-entrepreneur in the catalogue of exempted entities.
Sanctions.
Currently, neither the Act on Electromobility and Alternative Fuels nor its amendment indicate a sanction related to the non-fulfilment of the obligation to install a charging point and channels for electrical wires and cables. In the case of an obligation arising during construction, reconstruction or renovation, there is a risk that the authority will, for example, refuse to approve the construction project, arguing that the obligation has not been fulfilled. The obligation under the amendment, which has to be fulfilled by 1 January 2025, should also not be neglected, as it is not excluded that the legislator will introduce regulations in the meantime, which will provide for sanctions for non-compliance with the requirements of the amendment.
