ECJ verdict on road tolls in Germany. Polish carrier demands a reimbursement

The Court of Justice of the European Union issued a decision in which it followed the opinion of the Advocate-General of the ECJ from 17th June of this year. It concerns a pilot case for the reimbursement of the German road toll on heavy goods vehicles (C-321/19). According to this opinion, Germany charged tolls contrary to EU law, as traffic police costs cannot be included in the calculation of tolls for the use of the trans-European road network by heavy goods vehicles.

A request for a decision by the ECJ in the preliminary ruling procedure was submitted by the Higher Administrative Court of North Rhine-Westphalia, Münster, in April 2019, ruling on the case of a Polish freight forwarding company (as part of such proceedings, the courts of the Member States ask the Court of Justice for an interpretation of EU law, which allows them to assess whether a provision of national law is not contrary to EU law).

The company believed that the methods of calculating the tolls it had to pay had created an excessive financial obligation which infringed European Union law. The company demanded reimbursement of a motorway toll paid from 1 January 2010 to 18 July 2011. The case concerns nearly €12,500.

In its judgment delivered recently, the Court stated, first of all, that Directive 1999/62 on the charging of heavy goods vehicles for the use of certain infrastructures imposes a precise and unconditional obligation on Member States. It is said that tolls on the trans-European road network can only take account of infrastructure costs, that is to say, the construction, operation, maintenance and development of the infrastructure network concerned.

Although police-related costs represented only a small overrun of 3.8% or 6% on infrastructure costs, the Court ruled that Directive 1999/62 precludes any overrun of infrastructure costs.

Following the ECJ ruling, the Higher Administrative Court of North Rhine-Westphalia in Münster must resolve the case of the Polish company in a model procedure.

In addition, the Court rejected Germany’s request to limit the effects of this ruling in time.

As Łukasz Chwalczuk, managing partner in the Iuridica law firm, which represents carriers, points out, the Court’s ruling means that “transport companies that have been paying excessive rates for 10 years can claim reimbursement.”

“The first requests for the return of Maut were made on behalf of transport companies as early as 2013. At that time, a group of less than 100 companies made decisions to fight for the reimbursement of the wrongly charged toll. The largest transport companies are demanding a reimbursement of as much as several million euros,” comments Łukasz Chwalczuk. “Now a new gate opens so that all companies using German roads can recover the wrongly collected Maut.”

The judgment of the ECJ in Case C-321/19 is the result of a long-standing court battle by lawyers representing Polish carriers. Despite several lost battles – at the stage of proceedings before the German ordinary courts, which, it is not difficult to guess, did not want to pass judgment ‘against’ their country, we won the final war in the Court of Justice,” he adds.

As he points out, the transport companies that paid road tolls in Germany between 2017 and 2020 can already request reimbursement.

“There is not much time due to the statute of limitations for the recovery of this type of claim,” the lawyer reserves. “As was the case a few years ago with the IVMDH tax in Spain, the European Court Of Justice has now once again taken the side of the carriers with a favourable judgment. Just as in 2014 in the case of Spain, we will now also be helping transport companies to recover their money,” he adds.