Due to Germany’s economic importance and its strategic position at the heart of Europe, it certainly rings true to many Czech motor carriers that (almost) “all roads lead to Germany.” The dependence on the vagaries of German toll policy, however, have forced Czech motor carriers to swallow two bitter pills in the past four years. First, back in July 2018, the German government extended tolls to all federal roads, which led to some 40,000 kilometres of roads now being part of the toll system.
This was met with some resentment from motor carriers across Europe, as using federal roads instead of motorways presented a way to save a non-negligible part of transportation costs. Then, in 2019, German authorities decided to increase the toll itself. Motor carriers thus saw tolls on German roads increase by between 20% and 60%. This development put an additional financial burden on those competing in this already highly competitive area of transportation, where every operational cost adds up.
Many of those running a transportation business therefore became very interested in recent legal developments across the Czech Republic’s western border.
On October 28, 2020, the European Court of Justice decided that the truck toll levied by the Federal Republic of Germany violated European law. The reason for this decision was that German authorities included the costs of traffic police in the toll, although European law only allows the costs of infrastructure to be taken into account in calculating tolls. Consequently, the ECJ ruled that the calculation of the toll, at least to the extent it was based on the costs of traffic police, was contrary to European law, and that, at least to this extent, motor carriers were being charged in excess of the amount allowed by European law. According to initial estimates, this cost overrun meant that approximately 4% of the toll paid was being charged unlawfully. The ECJ ruled that the German authorities were not only obliged not to include the costs of traffic police in the toll amount, but that all those who paid the German HGV toll, which had been inflated as a result, were entitled to a refund.
To many motor carriers, it therefore appeared as if Christmas had come early. According to calculations, if every eligible motor carrier pursued a toll refund for 2017, the total amount of refunds would amount to almost EUR 1.3 billion. According to the Czech Association of Road Transport Operators, the refund claims by Czech motor carriers could amount to up to EUR 30 million for 2017, 2018, 2019, and 2020, combined.
Pursuant to German law, however, claims for toll refunds are barred if they are not asserted by the end of the third calendar year following the creation of the claim. As a result, those motor carriers who neither submitted a toll refund request with the German authorities for 2017 nor initiated any further measures to prevent the statute of limitations for the toll refund claim of 2017 from running out are therefore eligible to request a toll refund only for 2018, 2019, and 2020. Motor carriers may request toll refunds for truck tolls paid for trucks of a minimum gross weight of 7.5 tons.
The case now rests with the Supreme Administrative Court in Muenster. The court now has to decide how the toll is to be correctly calculated according to the requirements set out by the ECJ. It is thus possible that the final amount of unlawfully charged toll may lie somewhere north of 4%, as the breakdown of costs which made up the unlawfully charged toll may reveal additional irregularities. This decision is, however, unlikely to be made before the summer of 2021 – and probably not until autumn. It is unclear now whether and to what extent this decision will then become final and whether the Federal Republic of Germany will abide by it or appeal against it.
It remains to be seen how the events currently unfolding in Germany will affect motor carriers’ bottom lines. Depending on the wording of each of the individual contracts of carriage concluded for the purpose of transportation of goods, there may arise disputes between the motor carriers and their customers as to which ought to actually benefit from the refund.
By Barbora Urbancova, Partner, Stepan Gresak, Associate, Peterka & Partners, and Hagen Albus, Lawyer, Roos Nelskamp Schumacher & Partner