In its judgment of 28 October 2020, Case C-321/19, the European Court of Justice (ECJ) ruled that the truck toll levied by the Federal Republic of Germany infringed the prohibition on cost overruns in Article 7(9) of Directive 1999/62/EC as amended by Directive 2006/38/EC (hereinafter "Directive"). Article 7(9) of the Directive stipulates that tolls may be based solely on the principle of "recovery of infrastructure costs only". Such costs include the costs of operating the infrastructure network. In addition to those costs, the Federal Republic of Germany had included the costs of the traffic police as costs for the operation of the traffic route network. The plaintiffs in the original proceedings before the Cologne Administrative Court objected to this (Cologne Administrative Court, judgment of 1 December 2015, 14 K 7974/13).
On appeal, the Higher Administrative Court Münster submitted to the ECJ the question whether taking into account the costs of the traffic police when determining the amount of the tolls was compatible with Article 7(9) sentence 2 of the Directive (Higher Administrative Court Münster, decision of 28 March 2019, 9 A 118/16).
The ECJ replied that "police activities are the responsibility of the State acting in the exercise of its public powers, and not as operator of the road infrastructure". Therefore, according to the ECJ, the costs of traffic police cannot be regarded as operational costs within the meaning of Article 7(9) of the Directive (ECJ, judgment of 28 October 2020, C-321/19, nos. 26 et seq). The determination of the toll charge violates, at least to the extent that it is based on the costs of the traffic police, European law.
Following the decision of the ECJ, the Higher Administrative Court Münster will still have to decide whether other components of the truck toll are also illegal and accordingly, to what extent reimbursement claims exist.
In response to the ECJ ruling, the German legislature passed an amendment to the Federal Highway Toll Act and recalculated the toll. The change, which came into force on 1 October 2021, applies new, reduced toll rates. The legislative amendment was made retroactive to 28 October 2020, so that the toll rates have already been reduced for the period since the ECJ ruling on 28 October 2020, until 30 September 2021. For toll payments within this period, the legal basis – as well as the amount of toll to be paid – has therefore changed retrospectively. As a result, there are reimbursement claims based on the difference between the toll rates to be paid under the old and the new law.
However, following a detailed legal review, we have come to the conclusion that the amendment to the law does not fully comply with the requirements of European law. Among other things, the retroactive reduction in toll rates only applies to the period after the ruling. Further refunds for the period before 28 October 2020 are not addressed by the amendment. However, also regarding the refunds for the period covered by the legislative amendment, there are doubts as to whether the refund based on the legislative amendment sufficiently high. Together with an economic expert, we have come to the conclusion that the reimbursement offered is regularly too low and that transport companies may in some cases demand significantly higher reimbursements than those specified in the amendment.