Fastned Wins Another Round in Court — It Can Open Convenience Stores with Bathrooms & Seating Areas
Fastned was the first serious company with the intention to build a network of fast-charging stations along Dutch highways. When the Dutch government auctioned the locations along the highways, most at the same service areas where gas stations were, Fastned and some other startups put their toes in the water. The companies that operated the gas stations were absent. Fastned won most of the auctions.
Just like the gas station concessions, the charging station concessions are exclusive concessions. Gas stations do not want a bunch of competitors to build gas stations beside their most profitable locations, and likewise the charging stations asked and got the same protection.
There was a bit of confusion about the exclusivity of the charging stations. It was clear that other charging companies could not build a charging station at locations that were leased by other charging companies. But what about the gas stations that were already present and selling energy (i.e., gasoline, diesel, LPG) to drivers? When it appeared that there was a sound business case for charging stations, the good government friends of Shell, Exxon, BP, etc. asked and obtained a license to place fast chargers at their gas stations.
In the Netherlands, we have a tradition of “polderen.” It is a type of negotiation with multiple parties to come to a consensus that is acceptable for all parties. Litigation is the choice of last resort when all else has failed.
In the case of the charging stations, there were grey areas in the applicable law and contracts. It was new that multiple exclusive concessions were issued for nearly the same activity at the same location. And with future energy sales to the road transport sector at stake, the commercial consequences are huge. Asking the courts for their opinion was unavoidable. The parties involved needed fresh jurisprudence to clear the legal questions.
After a round of court cases, the highest court decided that at least some of the licenses obtained by the gas stations violated Fastned’s exclusivity rights. Now it is back to the negotiation table to solve the remaining issues using our century-old tradition of “poldering.”
The charging business is growing fast.
Charging customers have different needs from gas customers. At some service areas there is a group of hotels, restaurants, fast food stores, and a convenience store with the gas station’s cash register inside. Most have only a convenience store at the gas station. Some have nothing. At some locations, there is quite a distance between the Fastned station and the gas station, and a sidewalk is often missing.
To run a convenience store at a highway service area you need a license, just like the license the gas station has for its convenience store. These licenses are not exclusive. Fastned applied for licenses at three stations. They were refused.
The government protected the interests of the gas stations and decided that a convenience store for Fastned was not needed. Fastned is of the opinion that what is sauce for the goose is sauce for the gander. They should be treated the same as the gas stations.
A second round of court cases started, and the appeals followed each other. This march ended when the highest court decided that those licenses should be granted. To my non-legal mind, it looked like when you had a gas-station or charging-station concession, you had the right to request a license for extra services, like a convenience store.
With the license in hand, Fastned tried to lease the land next to its charging stations to build convenience stores. The government agency managing the land refused to lease the land to build the convenience store.
Now I am starting to make guesses. When a government office is managing the interests of a small, specific group of clients, a relationship sometimes develops to look out for each other. The office that just lost the fight over licenses thought it had found a loophole. There appeared no obligation to lease the land to the party they just issued a license to. I have no other explanation because the arguments to refuse the lease were not very strong.
It started to be a little Kafka-like, but it was just civil servants, not the courts, who acted inexplicably.
A third round of court cases followed regarding the right to lease the necessary land. Again, this resulted in a win for Fastned. This last round did not reach the highest court yet, though. Hopefully a higher-up tells the office for gas station affairs to accept the verdict. This supposedly green government should stop breaking the law while trying to protect gas companies. Or am I too naïve?
The office that has supported gas stations along the highways for nearly a century should start to help the gas stations to plan their closing. In another 20 years or sooner there will be no customers left for their products. They were not interested in charging licenses, and that will be the only game in town, or in the highway service area more precisely. They collectively missed the boat, and for the next 10 to 20 years, they must share the service areas with charging stations. Time to become good neighbors.
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