Background Information

In its judgment of 28 October 2020, Case C-321/19, the European Court of Justice 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, 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.