Judgment;Summary — ECLI:EU:C:2024:974
Date: 2024-11-21
Language of the case: Bulgarian
Court formation: Sixth Chamber
Subject matter: Taxation;Transport;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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: 
7 February 2023 
Referring court: 
Аdministrativen sad Haskovo (Bulgaria) 
Date of the decision to refer: 
31 January 2023 
Appellant: 
‘Ekostroy’ EOOD 
Respondent: 
Agentsia ‘Patna infrastruktura’ 
  
Subject matter of the main proceedings 
In the main proceedings the appellant seeks to have set aside the judgment of the 
Rayonen sad Svilengrad (Svilengrad District Court, Bulgaria) confirming an 
electronic record issued by the ‘road infrastructure’ agency, which imposes a fine 
on the appellant for an infringement established by means of the electronic toll 
system provided for in Bulgarian legislation. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, the referring court raises the question of 
compatibility with EU law of national legislation that provides for the imposition 
of a flat-rate fine (on natural or legal persons) for infringements of the obligation 
to ascertain and pay in advance a toll for the use of the national road infrastructure 
irrespective of the nature and gravity of those infringements, with the option of 
being exempted from liability to pay an administrative penalty by paying a so-
called ‘redress charge’. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-61/23 
 
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Question referred for a preliminary ruling 
Must Article 9a 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 be interpreted as meaning that the requirement laid down in 
that article that penalties for infringements of the national provisions adopted 
pursuant to that directive must be proportionate precludes national legislation, 
such as that at issue in the main proceedings, which provides for the imposition of 
a flat-rate fine (on natural or legal persons) for infringements of the provisions 
relating to the obligation to ascertain and pay in advance a toll for the use of the 
road infrastructure, irrespective of the nature and gravity of the infringement, with 
the option of being exempted from liability to pay an administrative penalty 
through payment of a so-called ‘redress charge’? 
Provisions of EU law and case-law cited 
Directive 1999/62/EC of the European Parliament and of the Council of 17 June 
1999 on the charging of vehicles for the use of road infrastructures: Articles 1, 2 
and 9a 
Charter of Fundamental Rights of the European Union (‘the Charter’): Article 47 
and Article 49(3) 
Provisions of national law cited 
Zakon za administrativnite narushenia i nakazania (Bulgarian law on 
administrative offences and administrative penalties; ‘the ZANN’): Articles 28, 
58e, 59, 63c and 83; Paragraph 1.1 and 1.4 of the additional provisions 
Zakon za dvizhenieto po patishtata (Bulgarian law on road traffic; ‘the ZDvP’): 
Article 102(2), Article 179(3b), Article 187a(2).3 
Zakon za patishtata (Bulgarian road law; ‘the ZP’): Article 10(1) and (2) and 
Article 10b(3) and (5) 
Toll rate for driving on and using the national road network (‘the toll rate’) 
Articles 27 and 29 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 18 January 2022 at 9.08 a.m., a device forming part of the electronic toll 
system and located on the A-4 road – which is part of the tolled road network – 
detected a journey by the lorry belonging to the appellant, namely a ‘Mercedes 
1843 LC Axor’ truck with semi-trailer, that is to say, an articulated truck with a 
total of five axles. On the same day, a valid toll declaration was forwarded to the 
Agentsia ‘Patna infrastruktura’ (‘road infrastructure’ agency) via the electronic 
EKOSTROY 
 
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toll system, stating that the vehicle in question was a road vehicle weighing more 
than twelve tonnes with two axles. The appellant company does not dispute that it 
paid the toll in accordance with this declaration. The files show that the vehicle in 
question has five axles rather than two. The toll payable in accordance with 
Article 27 of the toll rate (in force at the time of the infringement) is 0.08 
Bulgarian Leva (BGN) per km for vehicles with a technically permissible mass of 
more than twelve tonnes and two axles and BGN 0.16 per km for vehicles with a 
technically permissible mass of more than twelve tonnes and five axles. 
2 By an electronic fine record issued by the ‘road infrastructure’ agency, imposing a 
fine for an infringement detected by means of the electronic toll system, the 
appellant was fined BGN 2 500 for an infringement under Article 102(2) of the 
ZDvP (‘The owner may not allow a road vehicle to travel on a road that is part of 
the tolled road network if the obligations relating to the determination of the 
amount of toll and the payment of the appropriate toll under … the ZP have not 
been fulfilled according to the category of road vehicle’). Notwithstanding the 
imposition of that administrative penalty, the electronic record states that, 
pursuant to Article 10b(5) (‘If the actual distance travelled cannot be determined 
for reasons that are not due to a technical malfunction of the electronic toll system 
maintained by the ‘road infrastructure’ agency, … the owner … shall pay the 
maximum toll specified in the [toll rate]’), ‘Ekostroy’ EOOD is additionally 
required to pay a toll amounting to BGN 167. Moreover, the electronic record 
indicates that the company may be exempted from liability to pay an 
administrative penalty if it pays a redress charge in accordance with Article 10(2) 
of the ZP (‘In the event that it is ascertained that a journey took place on the tolled 
road network but in relation to which the [toll] for the road vehicle in question has 
not been paid, the driver of the road vehicle, its owner or a third party may pay a 
redress charge, in which case they are exempted from liability to pay an 
administrative penalty’), which amounts to BGN 750 and upon payment of which 
the electronic fine record is declared null and void and the obligation under 
Article 10b(5) of the ZP is deemed to have been fulfilled. 
3 ‘Ekostroy’ EOOD appealed against the electronic fine record to the Rayonen sad 
Svilengrad (Svilengrad District Court), which upheld the fine record as lawful by 
judgment No 98 of 12 July 2022 in Administrative Penal Case 
No 202256220200313/2022. ‘Ekostroy’ EOOD appealed against that judgment to 
the Administrativen sad Haskovo (Haskovo Administrative Court, Bulgaria) and 
requested that it be set aside. 
The essential arguments of the parties in the main proceedings 
4 The appellant submits that the judgment under appeal is flawed and requests that 
that judgment be set aside and the electronic fine record upheld by that judgment 
cancelled. The respondent takes the view that the judgment under appeal must be 
upheld. The referring court does not set out the parties’ views on the question 
referred from a preliminary ruling. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-61/23 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court points out that the ZP transposes the requirements of Directive 
1999/62 into Bulgarian law and states that, in the event of a failure to comply with 
the obligation to ascertain the amount of the toll and to pay the toll due 
(Article 102(2) of the ZDvP) and in the event of non-payment of the redress 
charge under Article 10(2) of the ZP, the payment of which exempts the 
driver/owner of the vehicle who permitted the non-fulfilment of the 
aforementioned obligation from liability to pay an administrative penalty, the 
driver/owner of the vehicle is liable to pay an administrative penalty, with the 
result that the driver/owner is subject to a fine in the amount specified in the law 
and in particular in Article 179(3), (3a) and (3b) of the ZDvP for natural persons 
and in Article 187a(2) of the ZDvP for legal persons (in the present case 
BGN 2 500 pursuant to Article 187a(2).3 of the ZDvP). 
6 The referring court states that the question at issue in the present case is whether, 
in view of the option of being exempted from liability to pay an administrative 
penalty in the event of payment of a redress charge, the fixed penalty amounts 
provided for by the national legislature for an infringement under Article 102(2) 
of the ZDvP satisfy the requirement that penalties must be proportionate laid 
down in Article 9a of Directive 1999/62. 
7 The referring court’s doubts are based on the fact that those fixed amounts cannot 
be altered (reduced) by the court when it examines the lawfulness of the penalty 
imposed in relation to the nature, character and gravity of the infringement. 
Furthermore, according to the statutory provision, the court cannot find that the 
offence is a less severe case; this is due to the statutory prohibition of Article 189h 
of the ZDvP, according to which offences under the ZDvP are not subject, in 
particular, to Article 28 of the ZANN (‘In the case of a less severe administrative 
offence, the sanctioning authority shall not impose a penalty on the offender but 
shall issue a written warning’). The national court is therefore not in a position to 
take into account the various features of the individual case, such as whether the 
toll due has not been paid in full or in part, what distance has been travelled 
without paying the toll, whether there is a case of strict liability, and so forth. 
8 However, the referring court takes into account the difference between a fine, 
which constitutes an administrative penalty resulting from administrative penal 
repression, and a charge, which constitutes a public claim of the State or a 
municipality. While the basis and the amount of the charge are determined in 
administrative proceedings, the basis and amount of the fine are determined in 
administrative penal proceedings that are subject to the principles of the law 
governing penalties. In the present context, it should be borne in mind that the 
charge cannot be challenged in court, that is to say, that the person concerned 
cannot exercise his or her right of defence with regard to either the amount of the 
charge or the need to pay it, and the amount of the charge is not determined by 
statute but by a toll rate, which is not a legislative measure. 
EKOSTROY 
 
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9 For this reason, in the view of the referring court, it must be concluded that the 
flat-rate penalty may be contrary to the principles of Article 49(3) of the Charter 
regarding the proportionality of the penalty for a criminal offence, which the 
Member States must observe in accordance with Article 9a of Directive 1999/62 
when transposing the penalties. Moreover, the obligation to pay the non-
appealable redress charge may be contrary to the requirements of Article 47 of the 
Charter given that the persons concerned, who are obliged to pay it, do not have 
recourse to any effective judicial remedy. 
10 The referring court is aware of the judgment of 22 March 2017, Euro-Team and 
Spirál-Gép, C-497/15 and C-498/15, EU:C:2017:229, in which it was held that 
Article 9a of Directive 1999/62 precludes a system of penalties that provides for 
the imposition of a flat-rate fine for all offences, whatever their nature and gravity, 
under the rules on the obligation to make prior payment of the toll for use of a 
road infrastructure. However, the referring court is of the opinion that the system 
of penalties in the present case is structured differently. Moreover, the applicable 
national legislation cited in that judgment does not include an option of paying a 
redress charge equal to the amount set out in the toll rate in order to avoid the 
imposition of a penalty. In addition – regardless of any liability to pay an 
administrative penalty in the form of a ‘fine’ (for natural or legal persons) – for 
the detected infringements the person concerned must, when paying the toll due, 
also pay the unpaid amount of toll for the use of the road network, which is set as 
a fixed (maximum) amount in cases where it is not possible to establish the 
distance actually travelled (Article 10b(5) of the ZP).