BY and CZ v Bundesrepublik Deutschland.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2020:866
• Docket Number: C-321/19
• Date: 28 October 2020
• Celex Number: 62019CJ0321
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

28 October 2020 (*)

(Reference for a preliminary ruling – Directive 1999/62/EC – Directive 2006/38/EC – Charging of heavy goods vehicles for the use of certain infrastructures – Article 7(9) – Article 7a(1) and (2) – Tolls – Principle of the recovery of infrastructure costs – Infrastructure costs – Operating costs – Costs related to traffic police – Cost overrun – Direct effect – Ex post justification of an excessive toll rate – Limitation of the temporal effects of the judgment)

In Case C‑321/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany), made by decision of 28 March 2019, received at the Court on 18 April 2019, in the proceedings

BY,

CZ

v

Bundesrepublik Deutschland,

THE COURT (First Chamber),

composed of J.‑C. Bonichot, President of the Chamber, R. Silva de Lapuerta (Rapporteur), Vice-President of the Court, C. Toader, M. Safjan and N. Jääskinen, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 4 March 2020,

after considering the observations submitted on behalf of:

– CZ and BY, by M. Pfnür and A. Winczura, Rechtsanwälte,

– Bundesrepublik Deutschland, by J. Hilf, F. Montag and M. Schleifenbaum, Rechtsanwälte,

– the German Government, by D. Klebs and J. Möller, acting as Agents,

– the European Commission, by W. Mölls and N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 June 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 7(9) and Article 7a(1) and (2) of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42), as amended by Directive 2006/38/EC of the Parliament and of the Council of 17 May 2006 (OJ 2006 L 157, p. 8) (‘Directive 1999/62, as amended’).

2 The request has been made in proceedings between BY and CZ, on the one hand, and Bundesrepublik Deutschland (Federal Republic of Germany), on the other, concerning the claim by BY and CZ for reimbursement of sums paid as tolls for the use of German federal motorways.

Legal context

European Union law

3 Article 2 of Directive 1999/62, as amended, provides:

‘For the purposes of this Directive:

(a) “trans-European road network” means the road network defined in Section 2 of Annex I to Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996 on Community guidelines for the development of the trans-European transport network [(OJ 1996 L 228, p. 1) – Decision as last amended by Council Regulation No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1)] as illustrated by maps. The maps refer to the corresponding sections mentioned in the operative part of and/or in Annex II to that Decision;

(aa) “construction costs” means the costs related to construction, including, where appropriate, the financing costs, of:

– new infrastructure or new infrastructure improvements (including significant structural repairs), or

– infrastructure or infrastructure improvements (including significant structural repairs) completed no more than 30 years before 10 June 2008, where tolling arrangements are already in place on 10 June 2008, or completed no more than 30 years before the establishment of any new tolling arrangements introduced after 10 June 2008; costs regarding infrastructure or infrastructure improvements completed before these time limits may also be considered as construction costs where:

(i) a Member State has established a tolling system which provides for the recovery of these costs by means of a contract with a tolling system operator, or other legal acts having equivalent effect, which enter into force before 10 June 2008, or

(ii) a Member State can demonstrate that the case for building the infrastructure in question depended on its having a design lifetime in excess of 30 years.

In any event, the proportion of the construction costs to be taken into account shall not exceed the proportion of the current design lifetime period of infrastructure components still to run on 10 June 2008 or on the date when the new tolling arrangements are introduced, where this is a later date.

Costs of infrastructure or infrastructure improvements may include any specific expenditure on infrastructure designed to reduce nuisance related to noise or to improve road safety and actual payments made by the infrastructure operator corresponding to objective environmental elements such as protection against soil contamination;

…

(b) “toll” means a specified amount payable for a vehicle travelling a given distance on the infrastructures referred to in Article 7(1); the amount shall be based on the distance travelled and the type of vehicle;

(ba) “weighted average toll” means the total revenue raised through tolls over a given period divided by the number of vehicle kilometres travelled on a given network subject to tolling during that period, both the revenue and the vehicle kilometres being calculated for the vehicles to which tolls apply;

…’

4 Article 7 of that directive provides:

‘1. Member States may maintain or introduce tolls and/or user charges on the trans-European road network, or on parts of that network, only under the conditions set out in paragraphs 2 to 12. This shall be without prejudice to the right of Member States, in compliance with the Treaty, to apply tolls and/or user charges on roads not included in the trans-European road network, inter alia on parallel roads to which traffic may be diverted from the trans-European road network and/or which are in direct competition with certain parts of that network, or to other types of motor vehicle not covered by the definition of “vehicle” on the trans-European road network, provided that the imposition of tolls and/or user charges on such roads does not discriminate against international traffic and does not result in distortions of competition between operators.

…

9. Tolls shall be based on the principle of the recovery of infrastructure costs only. Specifically the weighted average tolls shall be related to the construction costs and the costs of operating, maintaining and developing the infrastructure network concerned. The weighted average tolls may also include a return on capital or profit margin based on market conditions.

…’

5 Under Article 7a(1) to (3) of that directive:

‘1. In determining the levels of weighted average tolls to be charged on the infrastructure network concerned or a clearly defined part of such a network, Member States shall take into account the various costs set out in Article 7(9). The costs taken into account shall relate to the network or part of the network on which tolls are levied and to the vehicles that are subject to the tolling. Member States may choose not to recover these costs through toll revenue or to recover only a percentage of the costs.

2. Tolls shall be determined in accordance with Article 7 and paragraph 1 of this Article.

3. For new tolling arrangements other than those involving concession tolls put in place by Member States after 10 June 2008, Member States shall calculate costs using a methodology based on the core calculation principles set out in Annex III.

For new concession tolls put in place after 10 June 2008, the maximum level of tolls shall be equivalent to, or less than, the level that would have resulted from the use of a methodology based on the core calculation principles set out in Annex III. The assessment of such equivalence shall be made on the basis of a reasonably long reference period appropriate to the nature of a concession contract.

Tolling arrangements already in place on 10 June 2008 or for which tenders or responses to invitations to negotiate under the negotiated procedure have been received pursuant to a public procurement process before 10 June 2008 shall not be subject to the obligations set out in this paragraph, for as long as these arrangements remain in force and provided that they are not substantially modified.’

6 Annex III to Directive 1999/62, as amended, entitled ‘Core principles for the allocation of costs and calculation of tolls’, provides, in point 3:

‘Operating, management and tolling costs

These costs shall include all costs incurred by the infrastructure operator which are not covered under Section 2 and which relate to the implementation, operation and management of the infrastructure and of the tolling system. They shall include in particular:

– the costs of constructing, establishing and maintaining toll booths and other payment systems,

– the day to day costs of operating, administering and enforcing the toll collection system,

– administrative fees and charges relating to concession contracts,

– management, administrative and service costs relating to the operation of the infrastructure.

The costs may include a return on capital or profit margin reflecting the degree of risk transferred.

Such costs shall be apportioned on a fair and transparent basis between all vehicle classes that are subject to the tolling system.’

German law

7 According to the referring court, the amount of tolls for the use of German federal motorways for the period from 1 January 2009 to 31 December 2014 is fixed, under Paragraph 14(3) of the Bundesfernstraßenmautgesetz (Law on federal road tolls) of 12 July 2011 (BGBl. 2011 I S., p. 1378), by Annex 4 thereto. That annex sets those tolls on the basis, on the one hand, of a fixed amount per kilometre for vehicles or vehicle combinations with up to three axles and those with four or more axles and, on the other, of the vehicle category, which depends on the level of pollutant emissions. The...