18 - The Regulation of Hydrogen in the Transport Sector

Summary

This chapter examines the regulation of the hydrogen refuelling infrastructure in the European Union (EU). Since the EU is committed to reducing its carbon footprint and transitioning to sustainable energy sources, it sees hydrogen as an alternative to fossil fuels in the transport sector. This view reflects the tenor of the EU Green Deal, the Hydrogen Strategy, and the Sustainable and Smart Mobility Strategy. The success of these strategies depends on the successful resolution of several issues that would otherwise disrupt the just transition in the transport sector. The deployment of hydrogen refuelling stations requires a careful analysis of the various legal barriers that affect the value chain of the hydrogen industry.

18.1 Introduction

The European Union (EU) has undertaken measures to reduce greenhouse gas (GHG) emissions and to become carbon neutral by 2050. It adopted several interconnected strategic frameworks to that end. These frameworks include the Energy System Integration Strategy (ESI),¹ the Hydrogen Strategy (HS),² and the Sustainable and Smart Mobility Strategy (SSM),³ all of which are aligned with the European Green Deal (EGD).⁴ These strategies designate transport as an end-use sector in which the use of hydrogen, particularly renewable hydrogen, should be promoted. This strategic orientation is intended to contribute to the broader effort to decarbonise the economy.

Global emissions from transport increased at an effective annual rate of 1.7 per cent between 1990 and 2022, surpassing emissions in every other end-use sector except industry, as highlighted by the International Energy Agency (IEA).⁵ If net zero emissions are to be achieved by 2050, carbon dioxide emissions from the transport sector must begin decreasing by more than 3 per cent per annum by 2030.⁶ Globally, road transport appears to be the primary source of emissions within that sector (Figure 18.1).⁷

Figure 18.1 Global emissions from transport.

Source: International Energy Agency, ‘Global CO2 emissions from transport by sub-sector in the Net Zero Scenario, 2000–2030’ (2023) <https://iea.org/data-and-statistics/charts/global-co2-emissions-from-transport-by-sub-sector-in-the-net-zero-scenario-2000-2030-2>

GHG emissions in most sectors of the EU economy have been decreasing since 1990; transportation is an exception.⁸ Road transport has emerged as the main cause of this exceptionalism. Carbon dioxide emissions from road transport increased by 21 per cent between 1990 and 2021.⁹ Passenger cars and motorcycles account for 64 per cent of road-transport emissions. Heavy-duty trucks and buses contribute a substantial 27 per cent, while light-duty trucks account for 10 per cent of the total.¹⁰ Analyses have revealed that the emissions patterns of the Member States of the EU are structurally convergent. If the emissions reduction goal is to be attained, EU policies should account for the structural factors that are specific to each country, and coordinated measures should be formulated accordingly.¹¹

In the light of the foregoing, it should come as no surprise that the transportation sector has been identified as a potential ‘new lead market’ for hydrogen, particularly in instances in which electrification is infeasible.¹² For that potential to be harnessed, however, several technologies must first mature, and cost efficiency must improve. Other renewable and low-carbon fuels should also be utilised. The difficulties that attend on the formation of such a market were acknowledged in the 2020 SSM.¹³ That strategy advocates for a gradual integration of fuel-cell vehicles into the mobility sector, and its focus is on the creation of an alternative fuel infrastructure. The SSM contends that the augmented deployment and utilisation of renewable and low-carbon fuels should be accompanied by the establishment of a comprehensive recharging and refuelling infrastructure to facilitate the widespread adoption of low- and zero-emissions vehicles across all modes of transportation. According to the SSM, constructing 500 of the envisaged 1,000 hydrogen stations by 2025 is a realistic target. The ultimate objective is to establish a dense yet widely dispersed infrastructure that will guarantee convenient access to all users and operators of heavy-duty vehicles.¹⁴ However, in Europe, the number of hydrogen refuelling stations (HRSs) has not even approached half of the target. Currently, only 164 HRSs are available, with another 41 under construction at the time of writing. Most of those stations are in Germany, where 87 have been completed and 19 are under construction.¹⁵ Germany aside, the rollout of HRSs at the Member State level is proceeding at an uneven and contradictory pace. Some national or sub-national governments are establishing support frameworks for hydrogen-based transport, while others are withdrawing from this technology; for instance, in September 2023, the Netherlands introduced a subsidy scheme for hydrogen used in transport.¹⁶ Conversely, Denmark is set to shutter all of its hydrogen filling stations by the end of 2024, and it has suspended plans for new ones.¹⁷ In France, a city that pioneered green hydrogen buses now intends to replace them with electric buses.¹⁸

The objectives of these European strategies, the attendant legal uncertainties, and the commitment of the EU to develop hydrogen-based transport markets and services, when taken in their totality, mean that there is a compelling case for regulatory intervention. Such an intervention would be crucial for the dismantlement of the barriers that presently obstruct the deployment of hydrogen technology. Given the adoption of the Fit for 55 Package,¹⁹ several components of the legal framework for hydrogen are now in force. Those components include the revised Renewable Energy Directive (RED III),²⁰ the new Energy Efficiency Directive (EED),²¹ the Taxonomy Delegated Act,²² and the Delegated Acts on Renewable Hydrogen.²³ Given the purpose of this chapter, special mention should be made of the recent Regulation 2023/1804 (Alternative Fuels Infrastructure Regulation – AFIR), which addresses the deployment of the alternative fuels infrastructure.²⁴

The primary focus of this chapter is on the identification of barriers in the hydrogen value chain. Those barriers may impede the use of hydrogen in the decarbonisation of transport. In particular, the analysis that is presented here zooms into the HRS infrastructure that must be developed for a just and sustainable transition to occur. The chapter is structured as follows: Section 18.2 contextualises the European legislation on hydrogen for transport within the theoretical framework of ‘infrastructure as the fabric of society’, and presents the extant regulatory framework. Section 18.3 identifies the regulatory bottlenecks in the hydrogen value chain that pertain to hydrogen-based transport. Those bottlenecks have to do with production, transport, and storage. Section 18.4 concerns HRSs and the legal issues that affect their rollout. Finally, Section 18.5 provides a summary and charts several avenues for future research.

18.2 Theoretical and Regulatory Framework

The SSM strategy asserts unequivocally that sustainable mobility and transport serve as ‘enabler[s] for our economic and social life’.²⁵ They facilitate commutes as well as family and personal trips, they enable the movement of goods and services, they render manufacturing more efficient, and they strengthen territorial cohesion. Beyond its technical utility, infrastructure is valuable because of the services that it provides – ‘infrastructure could be regarded as the fabric of society, on the one hand, because infrastructure provision literally connect[s] everybody, on the other hand, because infrastructure equip[s] every member of society with more or less equal development opportunities’.²⁶

For infrastructure to discharge all of those functions in an age of energy transformation,²⁷ it must become more complex, including through the construction of new refuelling stations. At the same time, that sophisticated infrastructure ought to be designed with the tenets of the just energy transition in mind;²⁸ otherwise, the hydrogen economy might exacerbate inequality in society. The spatial and temporal distribution of the benefits and costs of new technologies must be allocated equitably, and social needs, other than the legitimate demands of economic operators, must be acknowledged. It is also important that bottom-up participation be promoted within the decision-making frameworks that are devised in the course of the transition.²⁹

The hydrogen refuelling infrastructure furnishes several paradigmatic examples of energy integration and of the interdependent infrastructural systems that typify energy-transition processes.³⁰ In the case of HRSs, physical, energy, and digital infrastructures are linked. As will become evident from the discussion that follows, the elements of the corresponding regulatory framework are tightly intertwined.

18.2.1 The Alternative Fuels Infrastructure Regulation (AFIR)

The significance of the AFIR lies in its comprehensiveness. It is a legal instrument that covers all transportation modes and a wide variety of alternative fuels.³¹ The regulatory strategy is intended to contribute to climate neutrality. In addressing the deficiencies of the hydrogen refuelling infrastructure, the AFIR sets minimum mandatory national targets for the number of publicly accessible HRSs; those targets must be met by December 2030.³²

According to Article 6 AFIR, the Member States are legally obliged to form HRS networks. For reasons of interoperability, the Member States must ensure that the stations in question have a minimum cumulative daily capacity of 1 tonne and that they are equipped with at least one 700-bar dispenser, which would allow light- and heavy-duty vehicles to be refuelled. The targets in the AFIR reflect the desire to create a dense network of HRSs along the Trans-European Transport Core Network (TEN-T; see Section 18.2.3 below). No two stations should be separated by more than 200 km. It should also be possible for hydrogen-powered vehicles to access refuelling stations in or near cities. Consequently, the AFIR requires the Member States to provide at least one publicly accessible HRS in all urban nodes, as defined by the TEN-T. The need for multimodal hubs for heavy-duty vehicles and other modes of transport should also be considered in determining the optimal locations of the HRSs. A single HRS in an urban node may fulfil the TEN-T requirements if the capacity targets are met. In addition, given the emergence of technologies such as liquid hydrogen, that infrastructure should be developed flexibly. The measures that will be adopted to advance the alternative fuels market and to complete the refuelling network must be delineated in national policy frameworks (Article 14 AFIR). The Member States are required to facilitate genuine and early public participation in the development of those national frameworks – the comprehensive involvement of members of the public other than industry stakeholders is crucial for preventing injustices. It should also be noted that the AFIR contains several provisions on the collection of data and the provision of digital services.

18.2.2 The Trans-European Network for Energy (TEN-E)

The TEN-E policy focuses on the interconnections between the energy infrastructures of the EU Member States. In this policy, eleven priority corridors and three thematic areas are identified as integral components of the network. In the updated TEN-E framework, these corridors span diverse geographic regions and various sectors, such as electricity, the offshore grid, and the hydrogen infrastructure. The 2022 revision of the TEN-E Regulation³³ aligned it with the climate-neutrality objectives that are outlined in the European Green Deal and the Climate Law. This revision establishes a framework for selecting infrastructure projects of common interest (PCIs)³⁴ in fields such as electricity, gas, hydrogen, and CO₂. Financial support is available from the Connecting Europe Facility (CEF).³⁵ The TEN-E Regulation also contains rules for determining the scope and governance of Ten-Year Network Development Plans (TYNDP). This framework facilitates cross-sectoral planning in gas and electricity, providing investors with a comprehensive overview of the optimal locations of electrolysers, hydrogen transmission and storage infrastructure, and refuelling stations. In addition, it supports the cost-effective integration of energy systems, in accordance with the energy-efficiency-first principle, which will be discussed further later in this chapter (Section 18.2.4). This integration extends to digital and transmission systems, as well as to synergies with the TEN-T, so that it ‘aims to generate additional opportunities for the decarbonisation of transport from the new vision of energy infrastructure planning’.³⁶

18.2.3 The Trans-European Transport Network (TEN-T)

As a policy, the TEN-T targets the development of a cohesive, efficient, multimodal, and high-quality transport infrastructure across the EU. The policy covers railways, inland waterways, short shipping routes, and the roads between urban nodes, ports, airports, and cargo terminals. It is governed by the TEN-T Regulation.³⁷ The TEN-T Regulation has recently been revised by replacing its previous version³⁸ to ensure that it accords with the EGD, the SSM Strategy, and the Zero Pollution Action Plan.³⁹ The 2024 TEN-T Regulation is based on a three-phase approach to the transport network. The TEN-T network will be developed or upgraded gradually in accordance with the new regulation, which sets clear deadlines for completion: the core network by 2030, the extended core network by 2040, and the comprehensive network by 2050. The problems of the 2013 TEN-T included inefficient and unattractive modes of sustainable transport, the inadequate integration of the alternative fuels infrastructure, the use of outdated digital tools for traffic management, insufficient network interoperability, the poor integration of urban nodes into the regulatory framework, and a misalignment between national investment plans and the TEN-T priorities.⁴⁰ The new Regulation is geared towards enhancing synergies between the TEN-T and TEN-E Regulation,⁴¹ as well as ensuring access, particularly for heavy-duty road vehicles, to the hydrogen that is transported via the TEN-E corridors.⁴² The refuelling stations that are required to that end should be positioned along the TEN-T corridors.⁴³ The HS already provides for synergies between the CEF Energy and CEF Transport. Those synergies should enable a dedicated infrastructure for hydrogen to be funded, and should make it easier to finance HRSs.⁴⁴

The new TEN-T Regulation introduces, inter alia, a new provision on PCI, standards for infrastructural development, additional requirements for multimodal freight terminals and urban nodes, and new operational requirements that strengthen the connection between infrastructure planning and transport-service operations.⁴⁵ The charging and refuelling infrastructure for alternative transport fuels must conform to the provisions of the AFIR.⁴⁶ Therefore, the 431 cities that are identified as urban nodes in the TEN-T will be required to formulate Sustainable Urban Mobility Plans (SUMPs) by 2025.⁴⁷ They will also need to comply with the provisions of the AFIR. Accordingly, their plans should provide for the deployment of at least one HRS, which may be integrated into a multimodal hub to serve buses and coaches.⁴⁸

18.2.4 The Energy-Efficiency-First Principle

The European HS casts hydrogen as a promising alternative fuel in transportation, especially when electrification is difficult or infeasible as a matter of practice. This framing of the choice between hydrogen and electricity reflects a preference for the latter – hydrogen is reserved for cases in which electrification would engender extraordinary difficulties. The preference for electrification accords with the notion that cars and vans with directly rechargeable electric batteries are considerably more energy efficient than cars and vans that have fuel cells. That proposition also holds true for the trucks that operate in cities, but not for long-haul heavy-duty trucks. In the latter case, using fuel-cell technology would be more sensible.⁴⁹ In consequence, the preference for transport solutions based on electric vehicles or fuel cells must be justified by reference to the energy-efficiency-first principle.⁵⁰

The SSM strategy posits that ‘energy efficiency shall be a criterion for prioritising future choice of suitable technologies looking at the whole life-cycle’.⁵¹ Since the adoption of the new EED, the energy-efficiency-first principle has become an overarching principle in energy policy.⁵² The HS refers to two focal areas for the utilisation of hydrogen in mobility. First, hydrogen should be adopted early in ‘captive applications’, such as municipal buses and commercial fleets (for example, taxis). In most cases, those applications have to do with public transportation and highly regulated private services. In such instances, regional or local electrolysers can easily supply HRSs. The introduction of such arrangements ought to be made contingent on a comprehensive analysis of demand for fleets and of the distinct requirements of light- and heavy-duty vehicles. Secondly, the SSM strategy promotes the use of hydrogen fuel cells in heavy-duty vehicles, in conjunction with electrification. The term ‘heavy-duty vehicle’ is defined to include coaches, specialised vehicles, and long-haul freight trucks, all of which produce substantial CO₂ emissions. Notably, the 2025 and 2030 targets from the CO₂ Emission Standards Regulation⁵³ are expected to create an advanced market for hydrogen solutions once fuel-cell technology becomes sufficiently cost effective.

Inspired by efficiency reasons, by way of derogation from the targets for HRSs’ deployment, according to Article 6.4 AFIR, HRS implementation is not required in areas with little heavy-duty vehicle traffic on the TEN-T core network. In such cases, Member States have the flexibility to reduce the capacity of publicly accessible HRSs by up to 50 per cent, as long as specified requirements related to the maximum distance between stations and dispenser pressure are met. The Member States must report all Article 6.4 derogations to the Commission and continuously review the circumstances in which they were imposed to ensure that the conditions that are set out in that article are still being met.

18.3 Regulatory Barriers to the Deployment of Hydrogen Refuelling Stations along the Hydrogen Value Chain

The conditions under which hydrogen can be deployed in the transport sector depend on the entire content of the regulatory framework that governs its production, transport, storage, and supply for end uses, as well as on the legislation that defines the objectives of the transition to renewable energy.⁵⁴ Certainly, the ultimate utilisation of hydrogen for transport and mobility services depends on a series of favourable legal preconditions. These include legislation outlining rules for its production, regulations governing its transport from production sites to points of end use, and storage. This proposition cuts both ways: the regulatory challenges are also shaped by the design of infrastructure.⁵⁵ For example, much depends on whether an HRS supplies hydrogen that is produced in a single facility (in situ production) or in external production plants. In the latter case, hydrogen can be carried through dedicated networks of pipelines; through repurposed natural gas pipelines; or in gaseous or liquefied form, in which case it can be transported by road, rail, or sea. In addition, the regulatory burden on HRSs may come to be as heavy as the one that is imposed on infrastructures that are employed for other purposes.

It is also important to note that, at present, the regulations that affect the hydrogen value chain are largely formulated at the national level. Therefore, it is in the Member States that the main barriers to the rollout of end-use hydrogen in the mobility sector are detected and anticipated. European regulation does not prevent particular Member States, such as Germany,⁵⁶ from developing the necessary infrastructure at a more rapid rate. Harmonisation is of fundamental importance, as is the subsequent monitoring of the transposition and application of the relevant EU law. Furthermore, other types of legislation, such as environmental law, also directly affect the rollout of HRSs.⁵⁷ The regulations that govern environmental impact assessments and integrated environmental authorisation supply salient examples. The subsections that follow outline the regulatory barriers that could influence the uptake of hydrogen in transportation.

18.3.1 The Transport Sector and Hydrogen Production

The production of hydrogen, in contrast to the production of gas or electricity, faced a deficiency in a comprehensive regulatory framework until 2023. This lacuna constituted the initial regulatory impediment to the overall advancement of hydrogen and its application within the transportation sector. The revision of the regulatory framework is poised to accelerate the adoption of production technologies. For instance, the revised Industrial Emissions Directive (IED)⁵⁸ will exempt electrolyser-based production facilities with a capacity below 50 megawatts (MW) from protracted permitting procedures.⁵⁹ This modification will advantage HRSs equipped with on-site hydrogen production. Furthermore, the regulations in force until the first half of 2024 did not differentiate between alternative sources or different purposes;⁶⁰ in addition, a regulatory framework concerning safety indirectly shapes hydrogen production by establishing a set of requirements. For this reason, the legislation did not fully account for the possibility of using hydrogen as an energy vector.⁶¹

Urban planning restrictions can also obstruct the rollout of HRSs. Hydrogen production typically entails the production of an inorganic gas – that is, it is a chemical-industrial process. This legal classification has important consequences for urban planning because the plants in question, whatever their size, need to be confined to industrial areas. For instance, in Spain, as well as in several other Member States, hydrogen production plants may not be located in urban areas. The EU has limited competences in the domain of urban planning. Therefore, this barrier must be overcome at the national level. Under the current regime, it is difficult for private fuel-cell vehicles to access HRSs outside of cities. Consequently, fuel-cell technology will largely be restricted to heavy-duty vehicles, which are more likely to transit in industrial areas.

The stricter environmental law requirements for small-scale hydrogen production matter, too. Under the Directive on Environmental Assessment,⁶² public and private projects with potentially significant effects on the environment can only be authorised upon completion of an environmental impact assessment. Annex I circumscribes the set of projects for which such assessments are mandatory across the Union. Annex II lists the types of projects that the Member States may subject to environmental impact assessments if they so choose. Even though neither Annex refers to the production, transport, or storage of hydrogen, those activities are highly likely to be caught by the ‘integrated chemical installations’⁶³ category in Annex I. Therefore, an environmental impact assessment must be completed for all production installations, including HRSs with in situ production. This arrangement increases the regulatory burden for the operators of small-scale projects, which compromises the financial viability of those projects.

The in situ production of hydrogen for HRSs is expected to occur primarily at small power-to-gas installations that rely on water electrolysis. At those installations, hydrogen is derived from substantial amounts of water. Consequently, in most Member States, it will be necessary for those who run such projects to obtain administrative authorisation or, in cases in which the annual volume of water consumption at the installation is expected to be relatively high, water concessions. Authorisation requirements vary widely across the EU. For instance, in Spain, water is designated as a public good. Therefore, green hydrogen production will likely require the grant of concessions. Such grants are conditional on the order of preference that is contained in the hydrological plans of each river basin district, in which industrial uses other than electricity production tend to come fourth.⁶⁴ Hydrogen production through electrolysis falls into that category, and it is not treated as equivalent to the production of electricity.

18.3.2 Mobility, Transport, and Storage of Hydrogen

The EU can only fulfil its commitment to develop an internal market for hydrogen that smooths the decarbonisation of the economy by building an appropriate infrastructure.⁶⁵ Dedicated hydrogen networks and cross-border networks should enable trade between the Member States while also promoting competition. The success of HRSs with no onsite production depends on the availability of such an infrastructure because pipelines are likely to be the most cost-efficient transportation solution. This is the first legal hurdle encountered in efforts to transport and store pure or blended hydrogen through the gas grid until the adoption of the hydrogen and decarbonised gas market package (the Hydrogen Package).⁶⁶ The main objective of the Hydrogen Package is to adapt the rules that currently apply to the natural gas market to the specificities of the infrastructure for the transport, storage, and supply of hydrogen. The new Package includes specific provisions on dedicated hydrogen networks and storage infrastructure. The European experience in energy shows that three key conditions must be met if market competition is to be guaranteed: open and non-discriminatory access to the network for third parties; regulated tariffs; and rules on unbundling.⁶⁷ For an in-depth analysis of the contents of the Hydrogen Package, see Chapter 2, authored by Leigh Hancher and Simina Cuciu.

The absence of a dedicated regulatory framework for the terrestrial transport of hydrogen is also a cause for concern. Only transport through networks falls within the scope of the Hydrogen Package. Hydrogen can also be transported in liquified or condensed form. In that case, trucks, boats, and trains may be used as means of transportation. Whether these operations are energy efficient depends on the context. The transport of hydrogen by road is regulated by the agreements on the transport of dangerous goods, particularly the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) and Directive 2008/68/EC on the inland transport of dangerous goods.⁶⁸ Furthermore, depending on the transport vector, the regulations concerning the International Carriage of Dangerous Goods by Rail (RID) and the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways (ADN) also apply. These legal instruments give rise to various regulatory barriers for emerging synthetic compounds classified as Liquids Carriers Organic Hydrogen (LCOH). Notable among them are specific conditions governing the transport of hazardous materials via rail, ship, or road, including designated dates and times. Against this backdrop, as explained previously, the new guidelines of the TEN-T Regulation stress the need to align with the TEN-E and the AFIR to deploy alternative fuels refuelling infrastructure.⁶⁹

The final regulatory problem that ought to be considered here has to do with the hefty environmental law burdens that the providers of small-scale hydrogen storage bear. The Directive on Environmental Assessment is applicable to hydrogen storage. Annex I, which contains a list of projects for which an extensive ex ante assessment is required, refers to facilities for the storage of petroleum, petrochemicals, and chemical products, a category that includes hydrogen. The corresponding obligation to complete an extensive assessment applies to facilities with a capacity of at least 200,000 tonnes. A simplified environmental assessment is mandatory for lower-capacity projects.

18.4 Hydrogen Refuelling Stations

The wide availability of HRSs⁷⁰ is a prerequisite for the adoption of hydrogen as an energy carrier.⁷¹ This issue poses several economic and regulatory challenges that tend to resemble the classic chicken-and-egg dilemma. If the sustainable energy transition is taken seriously, then the law should incentivise behavioural transformations among the public. Fuel-cell vehicle advocates argue that these vehicles provide a range and refuelling experience comparable to traditional internal combustion engine vehicles.⁷² This situation is posited to confer a competitive edge to hydrogen-powered vehicles over their electric counterparts. Indeed, according to a survey that the Clean Hydrogen Partnership conducted,

only a quarter of customers consider charging times longer than 30 minutes acceptable. This means that even if fast-charging time could be halved, 75% of customers would not be satisfied. Consumer preferences are vital to take into consideration. For the decarbonisation of transport to succeed, consumers must be willing to purchase and drive the offered vehicles. Only if the range of models meet the requirements of consumers will their adoption increase, triggering a further scale-up and acceleration of investment into new models.⁷³

These conclusions rest on the presumption that drivers will maintain current usage patterns, disregarding intrinsic energy efficiency considerations. This assumption fails to consider the ongoing evolution of electric battery technology and the potential emergence of new modes of private transportation. Moreover, it neglects the imperative to formulate a sustainable energy policy in the transportation sector that addresses broader societal needs, beyond the preferences of affluent individuals who can afford alternative-fuel vehicles. Consequently, it is crucial to advocate for public policies integrating sustainability, justice, and energy efficiency principles, transcending individual preferences and specific industrial interests. Sustainable mobility plans at various territorial levels, as delineated in the SSM, play a significant role in fostering such integration.

The AFIR imposes binding targets on Member States. The aim of those targets is to ensure that a robust and publicly accessible infrastructure for hydrogen-based road vehicles will be established. The targets call for alignment between the TEN-E and TEN-T at the European level. Such a development would accelerate the flow of investment to hydrogen infrastructure. The alignment in question can only be achieved through sound infrastructural planning, which should be informed by the TYNDPs. Furthermore, it remains unclear whether the Member States will meet the targets for hydrogen refuelling infrastructure that are set forth in AFIR by the 31 December 2030 deadline.

Turning to the specific issue of HRSs, it should be noted that the AFIR does not distinguish between refuelling stations that produce hydrogen onsite and stations that only store it. According to Article 2.59 AFIR, a ‘refuelling station’ is a single physical installation that has one or more refuelling outlets. The emergence of differences in national permit procedures that depend on whether hydrogen is generated onsite or offsite would be highly problematic.

Importantly, the binding targets for a minimum number of stations that are included in the AFIR apply only to publicly accessible HRSs. A ‘publicly accessible’ station is defined as ‘an alternative fuels infrastructure which is located at a site or premises that are open to the general public, irrespective of whether the alternative fuels infrastructure is located on public or private property, whether limitations or conditions apply in terms of access to the site or premise and irrespective of the applicable use conditions of the alternative fuels infrastructure’ (Article 2.45 AFIR). It follows that the enabling legal framework of the AFIR does not apply to refuelling outlets that are located on private property if access to them is restricted to a limited and determinate set of individuals. The parking places of an office building, if they are available only to employees or other authorised individuals, provide a salient example. If the construction of HRSs at such non-publicly accessible premises is cost effective, it may be desirable to consider energy communities⁷⁴ or other self-consumption formulas, especially ones that involve industrial participation. Those arrangements could benefit from coverage in the enabling legal frameworks of the RED, the EED, and the Internal Market for Electricity Directive.⁷⁵

The AFIR provides that the national policy frameworks for the deployment of alternative fuels in the transport sector, that the Member States adopt, ought to include measures that eliminate potential impediments to the planning, authorisation, procurement, and operation of alternative fuel infrastructures, be they publicly accessible or not. The responsibility for the effective implementation of measures for the establishment of an adequate hydrogen refuelling infrastructure lies with national legislatures and authorities. Finally, it is important to note that the AFIR establishes an indifference rule for publicly accessible HRSs – the operator or owner of a publicly accessible refuelling station must ensure that the station can serve both light- and heavy-duty vehicles.⁷⁶

18.5 Conclusion

Transport, especially road transport, has witnessed an increase in GHG emissions since 1990. This trend is in stark contrast to those that have been observed in other domains of economic and social activity. For this reason, the decarbonisation of transport would be a stepping stone in the pursuit of the energy and climate targets of the EU. Accordingly, the various European strategies that form part of the regulation of the sustainability transition ascribe a central role to hydrogen, as well as to other alternative fuels.

A complex and coordinated legal framework must be created if the potential of this energy vector is to be exploited fully. That framework remains a work in progress, both as a general matter and in the specific contexts of mobility and transport. This chapter focused on a recent piece of legislation on HRSs, namely the AFIR. It transpires that, as far as infrastructure is concerned, there is a growing regulatory synergy between energy and transport. It is important to underscore that the deployment of end-use hydrogen in the transportation sector will primarily focus on long-haul heavy trucks. In addition, concerning other modes of transportation, such deployment should occur in strict accordance with the notion of a socially just transition and the principle of ‘energy efficiency first’.

HRSs are one element of a large infrastructure. The infrastructure in question must be designed, planned, and implemented to further a broad vision. That vision ought to reflect considerations of, among others, social acceptability, energy efficiency, territorial cohesion, sustainability, and fair access.

The analysis of the regulatory barriers along the hydrogen value chain – that is, the legal problems that may affect the generation, transport, storage, and end use of hydrogen through HRSs – revealed several causes for concern. The AFIR, important though it may be, is not sufficient. Several avenues of research are open at present. First, the understanding of the challenges derived from the new Hydrogen Package. Second, scholars and policymakers must ensure that the content of the Package is coordinated with the content of other relevant instruments, such as the revised TEN-T. Third, a concerted effort should be made to ensure that the transposition, implementation, and planning measures that the Member States will adopt will be consistent with EU law and policy. Finally, the actual rollout of the hydrogen infrastructure should reflect the goals of the just transition, namely social benefits and environmental sustainability.