Opinion of the Advocate General — ECLI:EU:C:2020:480
Date: 2020-06-18
Language of the case: German
Subject matter: Taxation;Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-321/19 — 1 
Case C-321/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
18 April 2019 
Referring court: 
Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher 
Administrative Court for the Land of North Rhine-Westphalia, 
Germany) 
Date of the decision to refer: 
28 March 2019 
Applicants: 
BY 
CZ 
Defendant: 
Federal Republic of Germany 
  
Subject matter of the main proceedings 
Directive 1999/62 — Article 7(9) — Direct effect — Charging of heavy goods 
vehicles for the use of certain infrastructures — Weighted average tolls — 
Principle of the recovery of infrastructure costs only — Cost overrun 
prohibition — Costs of operating, maintaining and developing the infrastructure 
network concerned — Traffic police costs — Land acquisition interest — Cost 
overrun of up to 3.8% — Cost overrun of up to 6% — Consequences — Ex post 
calculation of costs — Basis for calculation following the end of the calculation 
period 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-321/19 
 
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Questions referred 
1. Can an individual toll-payer rely, before national courts, on compliance with 
the provisions regarding the calculation of the toll under Article 7(9) and 
Article 7a(1) and (2) of Directive 1999/62/EC as amended by Directive 
2006/38/EC (regardless of the arrangements in Article 7a(3) in conjunction 
with Annex III thereto), if, in the statutory determination of tolls, the 
Member State did not fully comply with those provisions or incorrectly 
implemented them to the detriment of the toll-payer? 
2. If Question 1 is to be answered in the affirmative: 
(a) Can traffic police costs also be treated as costs of operating the 
infrastructure network within the meaning of the second sentence of 
Article 7(9) of Directive 1999/62/EC as amended by Directive 
2006/38/EC? 
(b) Does an overrun of the infrastructure costs which can be taken into 
account in the weighted average toll in the range of 
(aa) up to 3.8%, in particular when account is taken of costs which 
cannot in principle be taken into account, 
(bb) up to 6% 
lead to a breach of the cost overrun prohibition under Article 7(9) of 
Directive 1999/62/EC as amended by Directive 2006/38/EC, with the 
result that national law is, to that extent, not applicable? 
3. If Question 2(b) is to be answered in the affirmative: 
(a) Is the judgment of the Court of Justice of 26 September 2000 
(C-205/98, paragraph 138) to be understood as meaning that a 
substantial cost overrun can ultimately no longer be offset by an ex 
post calculation of costs filed in judicial proceedings, which is 
intended to prove that the fixed toll rate ultimately does not actually 
exceed the costs which can be taken into account? 
(b) If Question 3(a) is to be answered in the negative: 
Is an ex post calculation of costs after the end of the calculation period 
to be based entirely on the actual costs and the actual toll revenue, that 
is to say, not on the assumptions made in this regard in the original 
predictive calculation? 
FEDERAL REPUBLIC OF GERMANY 
 
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Provisions of EU law cited 
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) 
Directive 2006/38/EC of the European Parliament and of the Council of 17 May 
2006 amending Directive 1999/62/EC on the charging of heavy goods vehicles for 
the use of certain infrastructures (OJ 2006 L 157, p. 8) 
Council Directive 93/89/EEC of 25 October 1993 on the application by Member 
States of taxes on certain vehicles used for the carriage of goods by road and tolls 
and charges for the use of certain infrastructures (OJ 1993 L 279, p. 32) 
Provisions of national law cited 
Bundesfernstraßenmautgesetz (Law on federal road tolls; BFStrMG) of 12 July 
2011 (BGBl. [Federal Law Gazette] I p. 1378), last amended by Article 1 of the 
Law of 4 December 2018 (BGBl. I p. 2251), in particular the first sentence of 
Paragraph 4(2), Paragraph 14(3), Annex 4 
Bundesgebührengesetz (Law on federal charges; BGebG) of 7 August 2013 
(BGBl. I p. 3154), last amended by Article 1 of the Law of 10 March 2017 (BGBl. 
I p. 417), in particular the second alternative of Paragraph 21(1) 
Mauthöheverordnung (Toll Rate Regulation; MautHV) of 24 June 2003 (BGBl. I 
p. 1001), last amended by the Regulation of 8 December 2010 (BGBl. I p. 1848), 
in particular Paragraph 1 
Autobahnmautgesetz (Law on motorway tolls; ABMG) of 5 April 2002, in the 
version of the Promulgation of 2 December 2004 (BGBl. I p. 3122), last amended 
by the Law of 29 May 2009 (BGBl. I p. 1170) 
Brief summary of the facts and procedure 
1 The applicants, who previously operated a haulage company that had its registered 
office in Poland, are seeking the repayment of tolls which they paid in the period 
from 1 January 2010 to 18 July 2011 for the use of German federal motorways. 
2 The Verwaltungsgericht Köln (Administrative Court, Cologne, Germany) 
dismissed their action. The referring court is required to make a ruling on the 
appeal lodged against that decision. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-321/19 
 
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Principal arguments of the parties in the main proceedings 
3 The applicants claim that excessively high costs were used as a basis for 
calculating the toll rate applied, contrary to EU law. 
4 The Federal Republic of Germany opposes that argument. In particular, it takes 
the view that the activity of the traffic police serves to safeguard traffic operations, 
which means that the corresponding expenditure may be taken into account as 
costs of operating the infrastructure network. 
Brief summary of the basis for the reference 
Question 1 
5 In the opinion of the referring court, the applicants may rely on the cost overrun 
prohibition enshrined in Article 7(9) and Article 7a(1) and (2) of Directive 
1999/62 as amended by Directive 2006/38 (‘Directive 1999/62’). Directive 
1999/62 has direct effect in this respect. 
6 This is because it now contains detailed provisions regarding the toll-relevant 
costs (first sentence of Article 7a(1) in conjunction with Article 7(9), definitions 
in Article 2 and in Annex III) and regarding the road network in respect of which 
tolls can be applied (Article 7(1), definitions in Article 2). Although Annex III 
thereto is not directly applicable in the present case, it has a conceptual relevance 
in so far as costs allowed thereby are a fortiori to be regarded as costs within the 
meaning of Article 7(9) of the Directive. 
7 These detailed provisions are effective in practice only if — notwithstanding the 
scope that remains in relation to calculation methodology — they are directly 
applicable and justiciable. 
8 The referring court therefore assumes that the previous case-law of the Court of 
Justice on Article 7(9) of Directive 1999/62 in the old version (judgment of 
5 February 2004, Rieser Internationale Transporte, C-157/02, EU:C:2004:76, 
paragraph 40 et seq.) has been superseded. 
Question 2 
9 Traffic police costs were taken into consideration, inter alia, as costs of operating 
the infrastructure network, within the meaning of the second sentence of 
Article 7(9) of Directive 1999/62, in the calculation of the toll rate applied. In the 
opinion of the referring court, such costs should not have been taken into 
consideration at all, and certainly not to their full extent. 
10 The costs of operating the infrastructure network within the meaning of the second 
sentence of Article 7(9) of Directive 1999/62 are part of the ‘infrastructure costs’ 
(first sentence of Article 7(9) of the Directive). However, the activity of the traffic 
FEDERAL REPUBLIC OF GERMANY 
 
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police does not generally serve to guarantee the functioning of the infrastructure. 
Instead, traffic police monitor compliance with traffic rules and deal with the 
consequences of any infringements. This has nothing to do with the infrastructure 
itself or its functionality. 
11 The fact that traffic police costs do not constitute infrastructure costs is also 
confirmed by the history of the legislation. Expenditure for ‘police service and 
accidents’ was treated separately as ‘external costs’ or ‘accident costs’ in the 
legislative process. Taking these into consideration was expressly ruled out. 
12 In any case, the traffic police costs were clearly fixed at an excessively high level 
in the calculation of the toll rate applied as, in addition to expenditure for traffic 
surveillance, expenditure for fighting crime was obviously also taken into account. 
As it is unclear how the costs taken into account are to be broken down in detail, 
the approach taken is seriously and obviously erroneous. 
13 The toll rate applied suffers from a further calculation defect. The land acquisition 
interest should have been based on the acquisition costs (applying the fiction of a 
public administration), and not on current values as established in 2002 (applying 
the fiction of a partially private or public undertaking committed to commercial 
planning and accounting). As the calculation objective is simply asset 
maintenance, the property values may not be adjusted to the current value. 
Otherwise, a contribution for a replacement would ultimately be made, even 
though the property does not have to be replaced. 
14 Due to these calculation defects, the toll rate applied is around 6% too high, 3.8% 
of which is due to the consideration of the traffic police costs alone. 
15 The question is whether such an overrun is contrary to the cost overrun 
prohibition pursuant to Article 7(9) of Directive 1999/62.  
16 According to the case-law of the Court of Justice on Article 7(9) of Directive 
1999/62 in the old version, the cost overrun prohibition is in any case infringed 
when the tolls charged exceed the costs by more than 150% (judgment of 
26 September 2000, Commission v Austria, C-205/98, EU:C:2000:493, 
paragraph 135). In the opinion of the referring court, this also applies to the new 
version of the provision. 
17 The Court of Justice has not previously ruled on whether a relevant breach of the 
cost overrun prohibition may be assumed to have occurred even in the case of a 
relatively minor cost overrun. 
18 The argument that even a minor overrun is sufficient is supported by the wording 
of the first sentence of Article 7(9), according to which tolls are to be based on the 
principle of the recovery of infrastructure costs ‘only’. This is because the 
‘exclusiveness’ of the link between infrastructure costs and the toll is affected 
when costs which are in principle not allowable or have not been correctly applied 
are taken into consideration even only to a small extent. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-321/19 
 
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19 The effectiveness of the cost overrun prohibition and the principle of charging the 
infrastructure costs to users (see recital 2 of Directive 2006/38/EC) may also be 
called into question. 
20 Also to be taken into consideration is the fact that the Member States have broad 
discretion when choosing the cost determination methodology (see Court of 
Justice, judgment of 5 February 2004, Rieser Internationale Transporte, 
C-157/02, EU:C:2004:76, paragraph 40). However, this means that different toll 
rates are permissible for the same infrastructure depending on the choice of 
methodology. If there is also relevant scope for exceeding the rates thus 
determined, the harmonising effect of the Directive and its intended protection of 
transport undertakings subject to charges (see recital 1 of Directive 2006/38) may 
be called into question. 
21 Regardless of the level of the overrun, the referring court is of the opinion that 
there is therefore in any case a relevant breach of the cost overrun prohibition 
when costs which do not constitute infrastructure costs are taken into account, 
when costs are actually based on erroneous assumptions, when the calculation is 
inconsistent in itself or when costs are included twice. That is the case here as 
regards the traffic police costs and the land acquisition interest. 
22 The wording of the second sentence of Article 7(9), according to which the 
weighted average tolls are to be ‘related’ to certain costs, could militate against 
the assumption of a breach of the cost overrun prohibition in the case of a minor 
overrun. In his opinion in Rieser Internationale Transporte (C-157/02, 
EU:C:2003:438), the Advocate General accordingly assumed that being thus 
‘related’ was not the same as strict observance. 
23 Under German law, according to which, in contrast to EU law, a calculation error 
fundamentally leads to the overall invalidity of the charging rate, overruns of 3% 
to 12% are accepted in the case of cost overrun prohibitions, depending on the 
legal field. This takes account of the fact that the calculation of charges is a 
predictive decision in which a certain risk of error is inherent. Accordingly, no 
such scope for error is afforded in the case of a seriously and obviously erroneous 
costs estimate. 
Question 3 
24 The German case-law fundamentally assumes in respect of national law that a 
charging rate should merely ultimately not be excessive. It may also be offset in 
judicial proceedings by an ex post calculation, unless a seriously and obviously 
erroneous costs estimate is involved. If — as in this case — a calculation period 
has already come to an end, accounting using the same method as that used in the 
calculation must however take place on the basis of the actual costs and the actual 
charge revenue. In that case, possible corrections are limited to errors relating to 
estimates which can be established, in terms of amount, at the end of the 
respective calculation year. 
FEDERAL REPUBLIC OF GERMANY 
 
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25 The Federal Republic of Germany has not previously undertaken such ex post 
accounting. However, the referring court cannot rule out the possibility that ex 
post accounting will take place in further proceedings. However, it is not clear 
from the judgment of the Court of Justice of 26 September 2000, Commission v 
Austria (C-205/98, EU:C:2000:493, paragraph 138) whether such ex post 
accounting would be relevant under EU law and how it would have to be 
undertaken if appropriate. Although the Court of Justice has stated that an increase 
in toll rates cannot, in principle, be justified by means of a calculation made 
subsequently, it is unclear whether this is a fundamental consideration.