Information;Order — ECLI:EU:C:2022:293
Date: 2022-04-07
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Taxation;Transport;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Austria

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: 
19 October 2020 
Referring court: 
Landesverwaltungsgericht Oberösterreich (Austria) 
Date of the decision to refer: 
15 October 2020 
Complainant: 
J.P., B. X, X N. 
Defendant authority: 
B.d.S.L., 
N. R., H. X, X. L. 
  
Subject matter of the main proceedings 
Possible infringement of the prohibition of multiple prosecution and punishment 
enshrined in Article 50 of the Charter of Fundamental Rights of the European 
Union – Automatic toll collection on Austrian motorways – National provisions 
adopted in implementation of EU law – Requirement of cumulation of penalties in 
Austrian administrative-penalty proceedings – Eleven administrative-penalty 
orders of various authorities cumulatively imposing, for administrative offences 
committed within a period of one month, fines exceeding the maximum amount 
because the driver of a heavy goods vehicle had not noticed that the battery of his 
toll collection device had run out of power 
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-521/20 
 
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Question referred 
Is Article 50 of the Charter of Fundamental Rights of the European Union (in 
particular in conjunction with the Eurovignette Directive 1999/62/EC) to be 
interpreted as meaning that the combination of national rules which – as in 
the case of Paragraph 20(2) of the BStMG in conjunction with 
Paragraph 22(2) of the VStG – requires the cumulative prosecution and 
punishment of serial breaches of the obligation to pay tolls committed on 
separate stretches of road is contrary to the prohibition of multiple 
prosecution and punishment if there is not simultaneously, at the legislative 
level, both an obligation of coordination for all the authorities and courts 
competent to conduct such proceedings and an explicit obligation to apply the 
principle of proportionality effectively in relation to the amount of the overall 
penalty? 
Provisions of EU law and international law cited 
Charter of Fundamental Rights of the European Union, Articles 50 to 53 
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 
[Eurovignette Directive], Article 7a, Article 7j(2), Article 8a, Article 9a 
Protocol No 7 to the European Convention for the Protection of Human Rights 
and Fundamental Freedoms, Article 4, cited in both the English and French 
original versions  
Provisions of national law cited 
Bundesstraßenmautgesetz (Law on tolls on federal roads; ‘the BStMG’), 
Paragraphs 6, 7 and 20: 
‘Paragraph 6 (‘Toll obligation’): ‘The use of stretches of toll road by multi-track 
motor vehicles with a maximum permissible total weight exceeding 3.5 tonnes is 
subject to a distance-dependent toll.’ …’ 
Paragraph 7 (‘Toll payment’): ‘1. The toll shall be paid by the use of approved 
devices for electronic payment of the toll via the debiting of toll credit or 
approved settlement in arrears. It must be ensured that drivers of motor vehicles 
are able to equip their vehicles with these devices before using stretches of toll 
road. …’ 
Paragraph 20 (‘Toll evasion’), subparagraph 2: ‘Drivers of motor vehicles who 
use stretches of toll road without having duly paid the distance-dependent toll due 
under Paragraph 6 commit an administrative offence and are liable to punishment 
by means of a fine of between EUR 300 and EUR 3 000.’ 
J.P. 
 
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Mautordnung für die Autobahnen und Schnellstraßen Österreichs (Tolling 
Regulation for Austrian motorways and expressways, Version 58 (MautO-V58) 
Verwaltungsstrafgesetz (Law on administrative offences; ‘the VStG’), 
Paragraph 22(2): ‘Where a person has committed several administrative offences 
by way of several independent acts, or where one act comes under several 
penalties that are not mutually exclusive, the penalties shall be imposed side by 
side. The same shall apply in the case of a concurrence of administrative offences 
and other criminal acts punishable by an administrative authority.’ 
Summary of the facts and procedure 
1 All in all, the complainant was accused of a total of 11 breaches of 
Paragraph 20(3) of the BStMG during the period between 27 December 2019 and 
30 January 2020 – that is to say, little more than one month – for one and the same 
reason (failure to debit a toll credit), for which fines totalling EUR 3 300 were 
imposed on him (or, alternatively, a total term of imprisonment of 370 hours in the 
event of failure to pay [that is to say, more than two weeks]), without it being 
apparent that the authorities concerned had in any way taken account of the fact 
that there was an obvious factual, temporal and geographical connection between 
all of those procedures. Seven administrative-penalty orders were issued by 
Authority B. between 2 and 4 September 2020 and four were issued by Authority 
B. K. on 18 August 2020, all concerning offences committed on different days.  
2 The specific case in the main proceedings: By an administrative-penalty order of 
B. (‘the defendant authority’) of 4 September 2020, a fine of EUR 300 (or, 
alternatively, imprisonment of 34 hours in the event of failure to pay) was 
imposed on the complainant because, allegedly, he had used a motorway with a 
motor vehicle having a total weight exceeding 3.5 tonnes without having duly 
paid the distance-dependent toll prescribed for that vehicle, as no toll payments 
had been collected on the GO-Box of that heavy goods vehicle. 
3 As a result, according to that defendant authority, he had committed an 
infringement of Paragraph 20(2), in conjunction with Paragraph 6, Paragraph 7(1) 
and Paragraph 8(2), of the BStMG, and therefore had to be punished under the 
first-mentioned provision. 
4 The complainant’s previous good character was to be regarded as a mitigating 
factor in the assessment of the penalty, albeit that only the minimum penalty 
provided for by law had been imposed in any event. 
5 The appeal lodged within the prescribed time limit with the Verwaltungsgericht 
des Landes Oberösterreich (Regional Administrative Court of the Province of 
Upper Austria; ‘the LVwG OÖ’), the referring court, on 22 September 2020 is 
directed against that administrative-penalty order. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/20 
 
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Principal arguments of the parties to the main proceedings 
6 The complainant essentially submits that he had not noticed over a long period of 
time that the battery in the GO-Box had already run out of power and was 
therefore no longer functional. Moreover, he argues, it is incomprehensible why 
ASFINAG (Autobahnen- und Schnellstraßen-Finanzierungs-Aktiengesellschaft – 
the public corporation responsible for planning, financing, building, maintaining 
and operating motorways and expressways in Austria) did not immediately draw 
his attention to the fact that the amounts had not been collected, but did so only 
after a three-month delay. Aside from that, viewed as a whole, a so-called 
‘fortgesetztes Delikt’ (continuing offence) had been committed in any event, with 
the result that only one overall penalty ought to have been imposed instead of 
several individual penalties. 
7 The defendant authority refrained from issuing a preliminary appeal decision and 
therefore did not add anything to the grounds for the administrative penal order.  
Brief summary of the grounds for the reference 
8 According to the judgment of 26 February 2013, Åklagaren v Hans Åkerberg 
Fransson (C-617/10, EU:C:2013:105), and the now settled case-law of the Court 
of Justice, the concept of ‘implementing Union law’ within the meaning of 
Article 51(1) of the Charter is to be understood as covering all situations in which 
a provision of EU law applies. In particular, this is also true where the purpose of 
the national legislation used by the national bodies is (also) to transpose EU 
directives into national law (see paragraphs 16 to 31 of that judgment). 
9 Viewed as a whole, the BStMG serves the main objective of an efficient 
implementation of the ‘Eurovignette Directive 1999/62/EC’, in particular 
Article 7a (proportionality of the amount of user charges), Article 7j (free flow of 
traffic), Article 8a (monitoring of functionality) and Article 9a (appropriate 
controls and proportionate penalties). 
10 The enforcement of the BStMG therefore constitutes – at least so far as heavy 
goods traffic on the road is concerned – an implementation of EU law within the 
meaning of Article 51(1) of the Charter, with the importance attached to that 
provision by the Court of Justice in its settled case-law. The guarantees under 
Articles 50 to 53 of the Charter are therefore also applicable in this context, with 
the result that the present request for a preliminary ruling should certainly be 
recognised as being admissible – subject to the further condition that the LVwG 
OÖ is recognised as having the status of a ‘court or tribunal’ within the meaning 
of Article 267 TFEU (see, in this regard, the proceedings currently pending before 
the Court of Justice in Case C-293/20). 
11 According to Part B of the ‘Tolling Regulation for Austrian motorways and 
expressways’, Version 58, which is relevant in the present case, the distance-
dependent toll for lorries and trucks with a total weight of more than 3.5 tonnes 
J.P. 
 
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(‘heavy goods vehicles’) was (and is) collected by means of a fully electronic toll 
system. To this end, the entire road network subject to tolls was (is) initially 
divided into individual toll sections, whereby the toll rate was (is) calculated in 
such a way that, depending on the emission class to which the toll-subject heavy 
goods vehicle belongs, a corresponding amount in euros was (is) payable for 
each kilometre travelled and the toll rate was (is) collected separately for each 
of those individual toll sections. 
12 A prerequisite for the proper payment of the toll was (is) the carrying of an 
approved and correctly functioning on-board unit (usually a so-called ‘GO-Box’) 
properly installed in the heavy goods vehicle on a permanent basis. When passing 
through a toll collection point, the GO-Box connected (connects) to the roadside 
antennas of the toll collection point using microwave technology, thereby 
generating a toll collection for the toll section in question. 
13 Registration for the toll system was (is) carried out via a GO sales point, whereby 
payment of the toll was (is) possible either by means of settlement in arrears or – 
as was (is) generally the case – via the debiting of toll credit acquired in advance 
(pre-pay procedure). For motor vehicles duly registered for the toll system and 
equipped with an approved on-board unit, there was (is) the possibility of paying 
the toll in arrears in specific cases (technical defect of the on-board unit or toll 
system, pre-pay account balance too low, etc.) and under special conditions. In the 
event of non-payment of the toll, the driver could (can) be requested to pay the 
substitute toll charge (‘Ersatzmaut’) by means of a subsequent written demand, 
and only if the substitute toll charge was (is) not duly paid was (is) a report issued 
to the district administrative authority (or the Magistrat (municipal authority)) and 
an administrative penalty procedure carried out by that authority. 
14 If the driver of the motor vehicle has opted for the ‘pre-pay procedure’ and the 
GO-Box has no credit or too little credit, it is no longer possible for the toll to be 
paid correctly. From that point in time, the criteria constituting the offence 
under Paragraph 20(2) of the BStMG are therefore met. However, this applies 
not only to the toll section currently being driven through, but also to all 
subsequent sections. Pursuant to the ‘Kumulationsprinzip’ (cumulation 
principle) in Paragraph 22(2) of the VStG, such penalties are to be imposed ‘side 
by side’ – that is to say, in a purely additive manner. 
15 It is often the case that after the toll credit has been used up, several toll sections 
are passed through in immediate succession within a relatively short period of 
time without it being possible to acquire the required toll credit at a GO sales 
point during that phase (there are only twenty GO sales points for the entire 
territory of the province of Upper Austria, for example). 
16 Even if the same stretch of road is used several times after a short interruption on 
each occasion (as, for example, in the case of daily deliveries), a failure to debit 
toll charges, for example due to a defective GO-Box, may in practice go unnoticed 
by the HGV driver for a relatively long period of time in cases where ASFINAG’s 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/20 
 
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request for payment of the substitute toll charge due is not received until weeks or 
months later. 
17 The territorial competence of the district administrative authorities is limited by 
their respective administrative boundaries, with the result that, even if the distance 
travelled on a motorway is relatively short, it is conceivable that several district 
administrative authorities (and possibly also different federal provinces) will 
have parallel competence under administrative criminal law. 
18 It is true that if – and because – even in such situations several penalties are (must 
be) imposed on the HGV driver under Paragraph 22(2) of the VStG, the 
individual amounts of those penalties can be kept as low as possible by using 
various penalty assessment instruments in order thereby to keep the overall 
amount of the penalty within reasonably acceptable limits; these include, for 
instance, the imposition of only the minimum penalty prescribed in 
Paragraph 20(2) of the BStMG for each individual offence (a practice used by 
some authorities as a purely preventive measure even if the corresponding 
statutory requirements are not actually met) and/or a reduction of up to half 
of that minimum penalty (although the requirements prescribed for this are 
generally not met) or the assumption of the existence of a continuing offence, 
with the consequence that only one overall penalty is to be imposed instead of 
several individual penalties, although this is at variance with the case-law 
pronounced at the highest judicial level by the Verwaltungsgerichtshof 
(Austrian Supreme Administrative Court). 
19 There is no rule in the Austrian legal system which requires a general 
application of the principle of proportionality in administrative proceedings, 
and, similarly, there is no legal provision which imposes an obligation on each 
authority – at least in respect of situations in which parallel proceedings are 
obvious or almost inevitably foreseeable – to coordinate such proceedings with 
one another. 
20 The LVwG OÖ proceeds on the assumption that the Court of Justice has clarified, 
in particular by its judgment of 12 September 2019, Maksimovic, (C-64/18, 
EU:C:2019:723), that a cumulation principle provided for in national law does not 
infringe EU law per se, provided that, on the one hand, it is ensured that, viewed 
as a whole, the cumulation of penalties is managed in an effectively proportionate 
manner and, on the other hand, there is also a guarantee that the prohibition of 
multiple prosecution and punishment (Article 50 of the Charter) in the form in 
which it has been developed by the case-law of the ECtHR on Article 4 of 
Protocol No 7 to the ECHR is complied with in a manner that is actually effective. 
21 In essence, this primarily means – as also summarised recently in the judgment of 
the ECtHR of 8 October 2020, Application No 67334/13, Bajčić, with further 
references – that if several sets of criminal proceedings which relate to a delictual 
event that is inextricably linked together in substance, space and time are 
conducted against an accused person, there will be no breach of the prohibition of 
J.P. 
 
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multiple prosecution and punishment only if each of those sets of proceedings 
addresses, not only in abstracto but also in concreto, different yet 
complementary aspects of social misconduct, the conduct of several sets of 
proceedings is both well founded in law and foreseeable for the defendant 
according to established practice, if the relevant sets of proceedings are de facto 
conducted in such a manner as to avoid as far as possible any disadvantage to the 
defendant and in particular in the collection and assessment of the evidence, and, 
above all, only if the sanctions imposed in one of those sets of proceedings which 
have already become final are then appropriately taken into account in the 
other proceedings; this can be best achieved by establishing by law an offsetting 
mechanism that ensures that the overall amount of the individual penalties is 
proportionate (see § 39 of that judgment). 
22 The Court of Justice had already previously held, in its judgment of 20 March 
2018, Criminal proceedings against Luca Menci (C-524/15, EU:C:2018:197), that 
duplication restricting the prohibition of multiple prosecution and punishment 
under Article 50 of the Charter must satisfy the following conditions in particular: 
the duplication must be provided for by the law (paragraph 42) and must not 
affect the essential content of the guarantee conferred by Article 50 of the 
Charter (paragraph 43); the individual procedures must pursue – both per se and 
viewed as a whole – recognised objectives of general interest (paragraphs 44 
and 45); and, viewed overall, the principle of proportionality must be complied 
with (paragraph 46 et seq.). 
23 In addition, the national legislation must, first of all, provide for clear and precise 
definitions allowing individuals to predict which acts or omissions are liable to be 
subject to a duplication of proceedings and penalties (paragraph 49) and must also 
ensure that the disadvantages resulting, for the persons concerned, from such a 
duplication are limited to what is strictly necessary in order to achieve the 
objective (paragraph 52). This implies, on the one hand, the existence of rules 
ensuring coordination so as to reduce to what is strictly necessary the additional 
disadvantage associated with the duplication for the persons concerned 
(paragraph 53) and, on the other hand, rules making it possible to guarantee that 
the severity of all of the penalties imposed corresponds with the seriousness of the 
offence concerned, that is to say, rules which oblige the competent authorities, in 
the event of the imposition of a second penalty, to ensure effectively that the 
severity of all of the penalties imposed does not exceed the seriousness of the 
offence identified (paragraphs 55 and 58). 
24 With regard to the case giving rise to the present request for a preliminary ruling, 
it can be deduced from this mutual referencing between Court of Justice and 
ECtHR case-law, as a common guideline, that the institutionalisation of a 
duplication system as a minimum prerequisite simultaneously requires both the 
legal anchoring of a coordination requirement and the application of the 
principle of proportionality. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/20 
 
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25 It is clearly necessary that – in accordance with the principle of legality under 
Article 49 of the Charter – such a requirement of coordination and proportionality 
has already been provided for at the legislative level – and therefore in a 
generally binding manner that is foreseeable and predictable for everyone. 
26 As already mentioned above, it is true that there is a statutory requirement for the 
cumulation of penalties in the Austrian law on administrative-penalty procedures 
in the form of Paragraph 22(2) of the VStG; however, there is no obligation 
directly connected with this (or anything else) laid down at the legislative level, 
either in the specific substantive law (the BStMG) or (as would be most 
appropriate) in the general rules governing procedure (the VStG), requiring 
mutual coordination between the authorities and courts or compliance with the 
principle of proportionality, and such an obligation cannot be indirectly derived 
from the statute law either. 
27 Overall, there is therefore a concern that penalties imposed in a cumulative 
manner under Paragraph 20(2) of the BStMG, in conjunction with 
Paragraph 22(2) of the VStG, infringe Article 50 of the Charter in large 
numbers due, more or less, to the system currently in place.