Delivery times: Environmental bonus uncertain

The automotive industry is currently experiencing a radical change. The developments of the last few years, combined with steadily rising fuel prices and attractive government subsidies, have made electric vehicles increasingly attractive and initiated a new public mindset.

However, due to persistent supply bottlenecks, the automotive industry is currently facing many actual and legal challenges. The previously existing shortage of raw materials is now being increasingly exacerbated by Russia's war of aggression against Ukraine and new sanctions against Russia which are being imposed almost every day, with the result that delivery times for new vehicles are sometimes stated in years. At the same time, the state subsidy for electrically powered vehicles known as the “innovation premium” will expire on 31 December 2022. For customers, dealers and manufacturers, increasingly long delivery times are making it uncertain whether there will be time to apply for the innovation premium for a new vehicle ordered now. Questions about the legal situation are likewise arising as to whether customers may not receive a state subsidy at all or in the foreseen amount due to long delivery times.

Application for the innovation premium can be made for new hybrid and battery electric and fuel cell vehicles registered for the first time by 31 December 2022. The application must be submitted by 31 December 2022. The current federal government has been reticent in addressing this issue, leaving open the question as to whether and how the innovation premium and other benefits will be granted after 2022. Until recently, there was absolutely no communication as to how a revamped innovation premium would be structured. Now, German Federal Minister of Economics Robert Habeck has announced that the environmental bonus for plug-in hybrids will be completely abolished after 31 December 2022 and the environmental bonus for purely electric vehicles will also be reduced. Contrary to calls from the automotive industry, the decisive date will continue to be the date of registration of the vehicle and not, for example, the date on which the contract with the end customer was concluded.

Under these circumstances, manufacturers and dealers are faced with a variety of legal issues. Depending on each individual case and the wording of each contract, the question arises as to who bears the risk of long delivery times in relation to state subsidies and whether the dealer or the manufacturer may even be liable for lost subsidies. In some cases, delivery delays may also entitle the customer to withdraw from the contract. In this context questions are increasingly arising as to whether the parties must or can adhere to their contracts in the event of foreseeable delivery difficulties and whether and to what extent customers, when concluding purchase or leasing contracts or having already placed orders, must be informed of the risk of receiving state subsidies in a lower amount or not at all in the event of delivery after 31 December 2022.

Since there are no indications that the current situation will be improving soon, manufacturers and dealers are well advised to consider such issues in regard to their offers and when drafting their contracts, to set the decisive conditions as early as possible and to avoid legal uncertainties in their everyday business.