Common Position (EC) No 33/2005 of 6 September 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council amending Directive 1999/62/EC on the charging of heavy goods vehicles of the use of certain infrastructures
Date: 2005-09-06
Institutions: Council of the European Union
Subjects: approximation of laws, charges for use of infrastructure, commercial vehicle, common transport policy, competition law, road transport, single market, toll, transport infrastructure, transport planning

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 33/2005

of 6 September 2005

with a view to adopting Directive 2005/…/EC of the European Parliament and of the Council of …
amending Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain
infrastructures

(2005/C 275 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

to charge hauliers for the cost of infrastructure use. A
degree of harmonisation has already been achieved
through Directive 1999/62/EC.

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71(1) thereof,

Having regard to Directive 1999/62/EC of the European Parlia-
ment and of the Council of 17 June 1999 on the charging of
heavy goods vehicles for the use of certain infrastructures (1),
and in particular Article 7 thereof,

(2)

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (2),

Having regard to the opinion of
Regions (3),

the Committee of

the

(3)

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1)

Eliminating distortions of competition between transport
undertakings in the Member States, the proper func-
tioning of the internal market and improved competi-
tiveness all depend on fair mechanisms being established

(1) OJ L 187, 20.7.1999, p. 42. Directive as amended by the 2003 Act

of Accession.

(2) OJ C 241, 28.9.2004, p. 58.
(3) OJ C 109, 30.4.2004, p. 14.
(4) Opinion of the European Parliament of 20 April 2004 (OJ C 104 E,
30.4.2004, p. 372) and Council Common Position of 6 September
2005 and Position of
the European Parliament of … (not yet
published in the OJ).

A fairer system of charging for the use of road infra-
structure is crucial
in order to encourage sustainable
transport in the Community. The objective of making
optimum use of the existing road network and achieving
a significant reduction in its negative impact should be
achieved without imposing additional burdens on opera-
tors, in the interests of sound economic growth and the
proper functioning of the internal market.

The Commission announced its intention of proposing a
directive on charging for the use of road infrastructure
in the White Paper ‘European transport policy for 2010:
time to decide’. The European Parliament confirmed the
need for infrastructure charging when it adopted the
report on the conclusions of the White Paper on 12
February 2003. Following the Göteborg European
Council of 15 June 2001, which drew particular atten-
tion to the issue of sustainable transport, the Copen-
hagen European Council of 12 and 13 December 2002
and the Brussels European Council of 20 and 21 March
2003 also welcomed the Commission's intention of
presenting a new ‘Eurovignette’ Directive.

(4)

For the purposes of setting tolls, Directive 1999/62/EC
takes account of infrastructure construction, operating,
maintenance and development costs. A specific provi-
sion is needed to ensure clarity regarding the construc-
tion costs that may be taken into account.

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(5)

(6)

(7)

(8)

International road transport operations are concentrated
on the trans-European road transport network. Further-
more, the proper functioning of the internal market is
vital to commercial transport. Consequently, the Com-
munity framework should apply to commercial transport
on the trans-European road network as defined in Deci-
sion No 1692/96/EC of the European Parliament and of
the Council of 23 July 1996 on Community guidelines
the trans-European transport
for the development of
network (1). Member States should, in accordance with
the principle of subsidiarity, be free to apply tolls and/or
user charges on roads other than those on the trans-
European road network, in compliance with the Treaty.

For reasons of cost efficiency in the implementation of
tolling systems, the entire infrastructure to which a toll
relates may not necessarily be subject to access restric-
tions controlling tolls charged. Member States may
choose to implement this Directive through the use of
tolls at only a particular point on the infrastructure to
which the toll relates.

Tolls should be based on the principle of recovery of
infrastructure costs. In cases where such infrastructures
have been co-financed through the general budget of the
European Union,
the contribution made from Com-
munity funds should not be recovered through tolls,
unless there are specific provisions in the relevant Com-
munity instruments which take into account future toll
receipts in establishing the amount of Community co-
financing.

The fact that the user is able to take decisions which will
tolls by choosing the least
influence the burden of
polluting vehicles and less congested periods or itiner-
aries is an important component of a charging system.
Member States should therefore be able to differentiate
tolls according to a vehicle's emission category (‘EURO’
classification) and the level of damage it causes to roads,
the place, the time and the amount of congestion. Such
differentiation in the level of tolls should be propor-
tionate to the objective pursued.

(9)

Aspects of commercial pricing for road infrastructure
use not covered by this Directive should respect the
rules of the Treaty.

(10)

This Directive does not affect the freedom for Member
States which introduce a system of tolls and/or user
charges for infrastructure to provide, without prejudice
to Articles 87 and 88 of
the Treaty, appropriate
compensation for these charges. Such compensation

should not lead to distortions of competition within the
internal market and should be subject to the relevant
provisions of Community
the
minimum rates of vehicle taxes set out in Annex I to
Directive 1999/62/EC and the provisions of Council
Directive 2003/96/EC of 27 October 2003 restructuring
the Community framework for the taxation of energy
products and electricity (2).

in particular

law,

(11) Where Member States levy tolls or user charges for use
of roads in the trans-European road network, the roads
subject to charging should be given appropriate priority
in the maintenance schedules of Member States.

(12)

(13)

(14)

Particular attention should be devoted to mountain
regions such as the Alps or the Pyrenees. The launch of
major new infrastructure projects has often failed
because the substantial financial resources they would
require were not available. In such regions, users may
therefore be required to pay a mark-up to finance essen-
tial projects of very high European value,
including
those involving another mode of transport in the same
corridor. This amount should be linked to the financial
needs of the project. It should also be linked to the basic
the tolls in order to avoid artificially high
level of
charges in any one corridor, which could lead to traffic
being diverted to other corridors, thereby causing local
congestion problems and inefficient use of networks.

formalities or

Fees should be non-discriminatory and their collection
involve
should not
create
excessive
barriers
internal borders. Appropriate measures
at
should therefore be taken to facilitate payment by occa-
sional users, in particular where tolls and/or user charges
are collected exclusively by means of a system that
requires use of an electronic payment tool
(on-board
unit).

In order to ensure consistent, harmonised application of
infrastructure charging systems, new tolling arrange-
ments should calculate costs in accordance with a set of
core principles or be set at a level which does not go
beyond that which would result from the application of
these principles. These requirements should not apply to
existing arrangements unless they are substantially modi-
fied in the future. Such substantial modifications would
include any significant change to the original terms and
conditions of the tolling scheme through modification of
a contract with the tolling system operator, but would
exclude changes provided for in the original scheme. In

(1) OJ L 228, 9.9.1996, p. 1. Decision as last amended by Decision

(2) OJ L 283, 31.10.2003, p. 51. Directive as last amended by Directive

884/2004/EC (OJ L 167, 30.4.2004, p. 1).

2004/75/EC (OJ L 157, 30.4.2004, p. 100).

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In order

to achieve

the case of concession contracts, substantial modification
could be implemented pursuant to a public procurement
process.
transparency without
the market
creating obstacles to the functioning of
economy and public private partnerships, Member States
should also communicate to the Commission, so that
the latter is in a position to give an opinion, the unit
values and other parameters they intend to apply to
calculate the various cost elements of the charges or, in
the case of concession contracts, the relevant contract
and base case. Opinions adopted by the Commission
before new tolling arrangements are introduced in
Member States are entirely without prejudice to the
Commission's obligation under the Treaty to ensure that
Community law is applied.

(15)

(16)

(17)

Further technical progress is still needed to develop the
system of charging for the use of road infrastructure.
There should be a procedure allowing the Commission
to adapt the requirements of Directive 1992/62/EC to
technical progress following consultation with Member
States for this purpose.

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission (1).

Since the objective of this Directive, namely to harmo-
nise the conditions applicable to tolls and user charges
for the use of road infrastructure, cannot be satisfactorily
achieved by the Member States acting alone and can
therefore, by reason of its European dimension and with
a view to safeguarding the internal market for transport,
be better achieved at Community level, the Community
may adopt measures, in accordance with the principle of
subsidiarity enshrined in Article 5 of
In
accordance with the principle of proportionality as set
out in that Article, this Directive does not go beyond
what is necessary to achieve that objective.

the Treaty.

(18) Directive 1999/62/EC should be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 1999/62/EC is hereby amended as follows:

1. Article 2 shall be amended as follows:

(a) point (a) shall be replaced by the following:

‘(a) “trans-European road network” means the road
network defined in section 2 of Annex I to Deci-
sion 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-Euro-
pean transport network (*) as illustrated by maps.
to the corresponding sections
The maps refer
mentioned in the operative part of and/or
in
Annex II to that Decision;

(*) OJ L 228, 9.9.1996, p. 1. Decision as last amended
L 167,

by Decision No 884/2004/EC (OJ
30.4.2004, p. 1).;’

(b) the following points shall be inserted:

‘(aa) “construction costs” means the costs related to
the

including, where appropriate,

construction,
financing costs, of:

— new infrastructure or new infrastructure
improvements (including significant structural
repairs); or

structural

significant

— infrastructure or infrastructure improvements
repairs)
(including
completed no more than 30 years before
… (*), where tolling arrangements are already
in place on … (*), or completed no more than
30 years before the establishment of any new
introduced after… (*);
tolling arrangements
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… (*), 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.

(1) OJ L 184, 17.7.1999, p. 23.

(*) 24 months following the date of entry into force of this Directive.

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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 … (*) or on the date when the new tolling
arrangements are introduced, where this is a later
date.

Costs of infrastructure or infrastructure improve-
ments may include any specific expenses on infra-
structure designed to reduce nuisance related to
to improve road safety and actual
noise or
payments made by the infrastructure operator
corresponding
environmental
elements such as protection against soil contami-
nation;

objective

to

(ab) “financing costs” means interest on borrowings
and/or return on any equity funding contributed
by shareholders;

(ac) “significant structural repairs” means structural
repairs excluding those repairs no longer of any
current benefit
to road users, e.g. where the
repair work has been replaced by further road
resurfacing or other construction work;’

(c) point (b) shall be replaced by the following:

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

(e) vehicle of the “EURO 0”, “EURO I”, “EURO II”,
“EURO III”, “EURO IV”, “EURO V”, “EEV” category
means a vehicle that complies with the emission
limits set out in Annex 0;

(f) “type of vehicle” means a category into which a
vehicle falls according to the number of its axles,
its dimensions or weight, or other vehicle classifi-
cation factors reflecting road damage, e.g. the road
damage classification system set out in Annex IV,
provided that
the classification system used is
characteristics which either
based on vehicle
appear in the vehicle documentation used in all
Member States or are visually apparent.’;

(f) the following points shall be added:

‘(g) “concession contract” means a “public works
concession” or a “service concession” as defined in
Article 1 of Directive 2004/18/EC of the European
Parliament and of the Council of 31 March 2004
on the coordination of procedures for the award
of public works contracts, public supply contracts
and public service contracts (*);

(h) “concession toll” means a toll levied by a conces-

sionaire under a concession contract.

(*) OJ L 134, 30.4.2004, p. 114. Directive as last
amended by Commission Regulation (EC) No
1874/2004 (OJ L 326, 29.10.2004, p. 17).;’

(d) the following point shall be inserted:

2. Article 7 is hereby amended as follows:

‘(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 kilo-
metres being calculated for the vehicles to which
tolls apply;’

(e) points (c),
following:

(d),

(e) and (f) shall be replaced by the

‘(c) “user charge” means a specified amount payment
of which confers the right for a vehicle to use for
a given period the infrastructures referred to in
Article 7(1);

(d) “vehicle” means a motor vehicle or articulated
vehicle combination intended or used exclusively
for the carriage by road of goods and having a
maximum permissible laden weight of over 3,5
tonnes;

(*) 24 months following the date of entry into force of this Directive.

(a) paragraphs 1, 2, 3 and 4 shall be replaced by the

following:

‘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 to
apply tolls and/or user charges on roads not included
in the trans-European road network or to other types
of motor vehicle not covered by the definition of
“vehicle” on the trans-European road network,
in
compliance with the Treaty.

2.
A Member State may choose to maintain or
introduce tolls and/or user charges applicable only to
vehicles having a maximum permissible laden weight
of not less than 12 tonnes. Where a Member State
chooses to apply tolls and/or user charges to vehicles
below this weight limit, the provisions of this Directive
shall apply.

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3.
Tolls and user charges may not both be imposed
at the same time on any given category of vehicle for
the use of a single road section. However, Member
States may also impose tolls on networks where user
charges are levied for the use of bridges, tunnels and
mountain passes.

4.
Tolls and user charges may not discriminate,
directly or indirectly, on the grounds of nationality of
the haulier, the country or place of establishment of
the haulier or of registration of the vehicle, or the
origin or destination of the transport operation.’;

(c) paragraph 6 shall be replaced by the following:

disadvantage.

The arrangements for the collection of tolls and/
‘6.
or user charges shall not,
financially or otherwise,
place non-regular users of the road network at an
unjustified
a
Member State collects tolls and/or user charges exclu-
sively by means of a system that requires the use of a
vehicle on-board unit,
it shall make available the
appropriate on-board units under reasonable adminis-
trative and economic arrangements.’;

In particular, where

(b) the following paragraphs shall be inserted:

shall be deleted;

(d) the second and third subparagraphs of paragraph 7

‘4a. Member States may provide for reduced toll
rates or user charges or exemptions from the obliga-
tion to pay tolls or user charges for vehicles exempted
to install and use recording
from the requirement
equipment under Council Regulation (EEC) No
3821/85 of 20 December 1985 on recording equip-
ment in road transport (*), and in the cases covered by,
to the conditions contained in, Article
and subject
6(2)(a) and (b) of this Directive.

(e) paragraphs 9 and 10 shall be replaced by the

following:

‘9.
the
Tolls shall be based on the principle of
recovery of infrastructure costs only. Specifically the
weighted average tolls shall be related to the construc-
tion 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.

As charging structures involving discounts or
4b.
reductions in tolls for frequent users may lead to actual
savings in administrative costs for the infrastructure
operator, Member States may provide
such
discounts or reductions on condition that:

for

10.

— they fulfil
10(a),

the conditions set out

in paragraph

— they comply with the Treaty, in particular Articles

12, 49, 86 and 87 thereof,

— they do not distort competition in the internal

market,

— the resulting charging structure is linear, propor-
tionate, available to all users on equal terms and
does not lead to additional costs being passed on
to other users in the form of higher tolls.

Such discounts or reductions shall in no case exceed
13 % of the toll paid by equivalent vehicles not eligible
for the discount or reduction.

All discount and reduction schemes shall be
4c.
communicated to the Commission, which shall verify
compliance with the conditions set out in paragraphs
4a and 4b and shall approve them in accordance with
the procedure referred to in Article 9c(2).;

(*) OJ L 370, 31.12.1985, p. 8. Regulation as last
amended by Commission Regulation (EC) No
432/2004 (OJ L 71, 10.3.2004, p. 3).;’

(a) Without prejudice to the weighted average
tolls referred to in paragraph 9, Member States
may vary the toll rates for purposes such as
combating environmental damage,
tackling
congestion, minimising infrastructure damage,
optimising
infrastructure
concerned or promoting road safety, provided
that such variation:

the use of

the

— is proportionate to the objective pursued,

— is

and

transparent

non-discriminatory
particularly regarding the nationality of the
haulier, the country or place of establish-
ment of the haulier or of registration of
the vehicle, and the origin or destination
of the transport operation,

— is not designed to generate additional
tolling revenue, any unintended increase in
revenue (leading to weighted average tolls
which are not in accordance with para-
graph 9) being counterbalanced through
changes to the structure of the variation
which must be implemented within two
years of the end of the accounting year in
which the additional revenue is generated,

— respects the maximum flexibility thresh-

olds set out in point (b).

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(b) Subject to the conditions of point (a), toll rates

may be varied according to:

— EURO emission class as set out in Annex
0, provided that no toll is more than 100 %
above the toll charged for equivalent vehi-
cles meeting the strictest emission stan-
dards; and/or

— the time of day, type of day or season,

provided that:

(i) no toll is more than 100 % above the
toll charged during the cheapest period
of the day, type of day or season; or

(ii) where the cheapest period is zero-
rated, the penalty for the most expen-
sive time of day, type of day or season
is no more than 50 % of the level of
toll that would otherwise be applicable
to the vehicle in question.

(c) Subject to the conditions of point (a), toll rates
may in exceptional cases for specific projects
of high European interest be subject to other
to secure the
forms of variation in order
commercial viability of such projects, when
they are exposed to direct competition with
other modes of
for vehicles. The
transport
resulting charging structure shall be linear,
proportionate, openly published, available to
all users on equal terms and shall not lead to
additional costs being passed on to other users
in the form of higher tolls. The Commission
shall verify compliance with the conditions of
this point prior to the implementation of the
charging structure in question.’;

in Annex III to Decision No 884/2004/EC, which
contribute directly to the alleviation of the conges-
tion or environmental damage in question and
which are located in the same corridor as the road
section on which the mark-up is applied,

— the mark-up, which may be applied to tolls varied
in accordance with paragraph 10, does not exceed
15 % of the weighted average toll calculated in
accordance with paragraph 9 except where the
invested in cross-border
revenue generated is
sections of priority projects of European interest
involving infrastructure in mountainous regions, in
which case the mark-up may not exceed 25 %,

— the application of the mark-up does not result in
unfair treatment of commercial traffic compared to
other road users,

— financial plans for the infrastructure on which the
mark-up is applied and a cost/benefit analysis for
the new infrastructure project are submitted to the
Commission in advance of the mark-up's applica-
tion,

— the period for which the mark-up is to apply is
defined and limited in advance and is consistent in
terms of the expected revenue to be raised with the
financial plans and cost/benefit analysis submitted.

Application of
projects shall be subject
Member States concerned.

this provision to new cross-border
the

to the agreement of

(f) the following paragraphs shall be added:

In exceptional cases concerning infrastructure
‘11.
informing the
regions and after
in mountainous
Commission, a mark-up may be added to the tolls of
specific road sections:

(a) which are the subject of acute congestion affecting

the free movement of vehicles, or

(b) the use of which by vehicles is the cause of signifi-

cant environmental damage,

on condition that:

— the revenue generated from the mark-up is invested
in priority projects of European interest identified

When the Commission receives the financial plans
from a Member State intending to apply a mark-up, it
shall make this information available to the members
of the Committee referred to in Article 9c(1). Should
the Commission consider that the planned mark-up
does not meet the conditions set out in this paragraph,
or if it considers that the planned mark-up will have
significant adverse effects on the economic develop-
ment of peripheral regions,
it may reject or request
modification of the plans for charges submitted by the
Member State concerned,
in accordance with the
procedure referred to in Article 9c(2).

12. Where a driver is unable to produce the vehicle
documents necessary to ascertain the information
referred to in the first indent of paragraph 10(b), and
the type of vehicle in the event of a check, Member
States may apply tolls up to the highest level charge-
able.’;

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3. the following Article shall be inserted:

— the concession contracts or significant changes to

such contracts,

‘Article 7a

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.

Tolls shall be determined in accordance with Article

2.
7 and paragraph 1 of this Article.

For new tolling arrangements other than those invol-
3.
ving concession tolls put in place by Member States after
… (*), Member States shall calculate costs using a metho-
dology based on the core calculation principles set out in
Annex III.

For new concession tolls put in place after … (*), the
maximum level of tolls shall be equivalent to, or less than,
the level that would have resulted from the use of a meth-
odology based on the core calculation principles set out in
Annex III. The assessment of such an 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 … (*) or for
which tenders or responses to invitations to negotiate
under
the negotiated procedure have been received
pursuant to a public procurement process before … (*)
shall not be subject to the obligations set out in this para-
graph, for as long as these arrangements remain in force
and provided that they are not substantially modified.

4. Member States shall communicate to the Commis-
sion at least four months before the implementation of a
new tolling arrangement:

— the base case on which the grantor has founded
the notice of concession, as referred to in Annex
VII B to Directive 2004/18/EC; this base case shall
include the estimated costs as defined in Article
7(9) envisaged under the concession, the forecasted
traffic divided into types of vehicle, the levels of
tolls envisaged and the geographic extent of the
network covered by the concession contract.

5.
For the cases subject to the obligations in paragraph
3 the Commission shall, within four months of receiving
the information in accordance with paragraph 4, give an
opinion as to whether these obligations appear to have
been fulfilled.

The opinions of the Commission shall be made available
to the Committee referred to in Article 9c(1).

6. Where a Member State wishes to apply the provi-
sions contained in Article 7(11)
tolling
arrangements already in place on … (*), the Member State
concerned shall provide information that demonstrates
that the weighted average toll being applied to the infra-
structure concerned complies with Articles 2(aa), 7(9) and
7(10).;’

in respect of

4. Article 8(2)(b) shall be replaced by the following:

‘(b) payment of the common user charge shall give access
to the network as defined by the participating Member
States in accordance with Article 7(1);’

5. the following Article shall be inserted:

‘Article 8a

Each Member State shall monitor the system of tolls and/
or user charges to ensure that it functions in a transparent
and non-discriminatory manner.’;

(a) for tolling arrangements other than those involving

6. Article 9 shall be amended as follows:

concession tolls:

(a) the following point shall be added to paragraph 1:

— the unit values and other parameters they use in

calculating the various cost elements, and

‘(d) insurance taxes.’;

— clear information on the vehicles covered by their
tolling regime and the geographic extent of the
network, or part of the network, used for each cost
calculation and the percentage of costs that they
are seeking to recover;

(b) for tolling arrangements involving concession tolls:

(*) 24 months following the date of entry into force of this Directive.

(b) paragraph 2 shall be replaced by the following:

‘2.
In keeping with the principle of subsidiarity,
Member States shall determine the use to be made of
revenue from charges for the use of road infrastruc-
ture. To enable the transport network to be developed
as a whole, revenue from charges should be used to
benefit the transport sector and optimise the entire
transport system.’;

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7. the following Articles shall be inserted:

‘Article 9a

Member States shall establish appropriate controls and
determine the system of penalties applicable to infringe-
ments of the national provisions adopted under this Direc-
tive; they shall take all necessary measures to ensure that
they are implemented. The penalties established must be
effective, proportionate and dissuasive.

Article 9b

The Commission shall facilitate dialogue and exchange of
technical know-how between Member States in relation to
the implementation of
this Directive and in particular
Annex III. The Commission shall update and clarify
Annexes 0, III and IV in the light of technical progress and
Annexes I and II in the light of inflation, in accordance
with the procedure referred to in Article 9c(3).

Article 9c

‘maximum
three axles

minimum four
axles

EURO 0 and EURO I

EURO II and EURO III

EURO IV, EURO V and EEV

1 020

904

797

1 648

1 488

1 329’

10. the last sentence of Annex II shall be replaced by the

following:

‘The daily user charge is equal for all vehicle categories and
amounts to EUR 11.’;

11. Annex 0, the text of which appears in Annex I to this

Directive, shall be inserted;

12. Annex III, the text of which appears in Annex II to this

Directive, shall be added;

13. Annex IV, the text of which appears in Annex III to this

Directive, shall be added.

1.

The Commission shall be assisted by a Committee.

Article 2

2. Where reference is made to this paragraph, Articles 3
and 7 of Council Decision 1999/468/EC shall apply,
having regard to the provisions of Article 8 thereof.

3. Where reference is made to this paragraph, Article 5
and 7 of Council Decision 1999/468/EC shall apply,
having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision
1999/468/EC shall be set at three months.

4.

The Committee shall adopt its rules of procedure.’;

8. Article 11 shall be replaced by the following:

‘Article 11

No later than … (*), the Commission shall present a report
to the European Parliament and to the Council on the
taking
implementation and effects of
account of developments in technology and the trend in
traffic density, and evaluating its impact on the internal
landlocked and peripheral
market,
regions of the Community,
levels of investment in the
sector and its contribution to the objectives of a sustain-
able transport policy.

including on island,

this Directive,

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than … (***). They shall forthwith inform
the Commission thereof.

When Member States adopt such measures, they shall contain a
reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the provisions of domestic law which they adopt in the
field covered by this Directive, together with a table showing
how the provisions of this Directive correspond to the national
provisions adopted.

Article 3

This Directive shall enter into force on the day following its
publication in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

The report shall be accompanied, if appropriate, by propo-
sals to the European Parliament and the Council
for
further revision of this Directive.

Done at Brussels,

Member States shall forward the necessary information to
the Commission no later than … (**)’;

For the European Parliament

9. the table in Annex II indicating the amount of annual

charges shall be replaced by the following:

The President

…

For the Council

The President

…

(*) 5 years following the date of entry into force of this Directive.
(**) 54 months following the date of entry into force of this Directive.

(***) 24 months following the date of entry into force of this Directive.

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ANNEX I

‘ANNEX 0

EMISSION LIMITS

1. “EURO 0” vehicle

Mass of carbon monoxide (CO) g/kWh

Mass of hydrocarbons (HC) g/
kWh

Mass of nitrogen oxides (NOx)
g/kWh

12,3

2,6

15,8

2. “EURO I”/“EURO II” vehicles

Mass of carbon
monoxide (CO) g/
kWh

Mass of
hydrocarbons (HC)
g/kWh

Mass of nitrogen
oxides (NOx) g/
kWh

Mass of
particulates (PT) g/
kWh

'EURO I' vehicle

'EURO II' vehicle

4,9

4,0

1,23

1,1

9,0

7,0

0,4 (1)

0,15

(1) A coefficient of 1,7 is applied to the particulate emission limit value in the case of engines with a power rating of 85 kW or less.

3. “EURO III”/“EURO IV”/“EURO V”/“EEV” vehicles

The specific masses of carbon monoxide, total hydrocarbons, nitrogen oxides and particulates, determined by the
ESC test and the exhaust gas opacity, determined by the ELR test, must not exceed the following values (1):

Mass of carbon
monoxides
(CO) g/kWh

Mass of
hydrocarbons
(HC) g/kWh

Mass of
nitrogen oxides
(NOx) g/kWh

Mass of
particulates (PT)
g/kWh

Exhaust gas m-1

'EURO III' vehicle

'EURO IV' vehicle

'EURO V' vehicle

'EEV' vehicle

2,1

1,5

1,5

1,5

0,66

0,46

0,46

0,25

5,0

3,5

2,0

2,0

0,10 (2)

0,02

0,02

0,02

0,8

0,5

0,5

0,15

(1) A test cycle consists of a sequence of test points, each point being defined by a speed and a torque which the engine must respect

in steady state (ESC test) or transient operating conditions (ETC and ELR tests).

(2) 0,13 for engines whose unit cylinder capacity is less that 0,7 dm3 and the nominal speed is in excess of 3 000 min-1.

4. Future emission classes of vehicles as defined in Directive 88/77/EEC and subsequent amendments may be consid-

ered.’

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ANNEX II

‘ANNEX III

CORE PRINCIPLES FOR THE ALLOCATION OF COSTS AND CALCULATION OF TOLLS

This Annex stipulates the core principles for the calculation of weighted average tolls to reflect Article 7(9). The obliga-
tion to relate tolls to costs shall be without prejudice to the freedom of Member States to choose, in accordance with
Article 7a(1), not to recover the costs in full through toll revenue, or to the freedom, in accordance with Article 7(10),
to vary the amounts of specific tolls away from the average (1).

The application of these principles shall be fully consistent with other existing obligations under Community law, in par-
ticular the requirement for concession contracts to be awarded in accordance with Council Directive 2004/18/EC and
other Community instruments in the field of public procurement.

Where a Member State engages in negotiations with one or more third parties with a view to establishing a concession
contract regarding the construction or operation of a part of its infrastructure, or in view of this purpose engages in a
similar arrangement based on national legislation or an agreement entered into by the government of a Member State,
compliance with these principles shall be judged on the basis of the outcome of these negotiations.

1. Definition of the Network and of vehicles covered

— Where a single tolling regime is not to be applied to the whole TEN road network, a Member State shall specify
precisely the part or parts of the network which are to be subject to a tolling regime as well as the system its
uses to classify vehicles for the purposes of toll variation. Member States shall also specify whether they are
extending the scope of the vehicles covered by their tolling regime below the 12-tonne threshold.

— Where a Member State chooses to adopt different policies regarding cost recovery for different parts of its
network (as permitted under Article 7a(1)), each clearly defined part of the network shall be subject to a sepa-
rate calculation of costs. A Member State may choose to split its network up into a number of clearly defined
parts so as to establish separate concession arrangements or similar for each part.

2.

Infrastructure costs

2.1. Investment costs

— Investment costs shall include the costs of construction (including financing costs) and the costs of developing
the infrastructure plus, where appropriate, a return on the capital investment or profit margin. Costs of land
acquisition, planning, design, supervision of construction contracts and project management, and of archaeolo-
gical and ground investigations, as well as other relevant incidental costs, shall also be included.

— The recovery of construction costs shall be based on either the design lifetime of the infrastructure or such
other amortisation period (not being less than 20 years) as may be considered appropriate for reasons of finan-
cing through a concession contract or otherwise. The length of the amortisation period may be a key variable
in negotiations regarding the establishment of concession contracts, particularly if the Member State concerned
wishes, as part of the contract, to set a ceiling regarding the weighted average toll applicable.

— Without prejudice to the calculation of investment costs, the recovery of costs may

— be apportioned evenly over the amortisation period or weighted to the early, middle or later years, provided

that such weighting is carried out in a transparent manner,

— provide for indexation of tolls over the amortisation period.

— All historic costs shall be based on the amounts paid. Costs which are still to be incurred will be based on

reasonable cost forecasts.

(1) These provisions, together with the flexibility offered in the way costs are recovered over time (see the third indent of point 2.1), give
considerable margin to fix tolls at levels which are acceptable to users and adapted to the specific transport policy objectives of the
Member State.

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— Government investment may be assumed to be financed borrowings. The rate of interest to be applied to histor-

ical costs shall be the rates that applied to government borrowings over that period.

— Costs shall be apportioned to heavy goods vehicles (HGVs) on an objective and transparent basis taking account
of the proportion of HGV traffic to be carried on the network and the associated costs. The vehicle kilometres
travelled by HGVs may for this purpose be adjusted by objectively justified “equivalence factors” such as those
set out in point 4 (1).

— Provision for estimated return on capital or profit margin shall be reasonable in the light of market conditions
and may be varied for the purpose of providing performance incentives for a contracted third party with regard
to quality of service requirements. Return on capital may be evaluated using economic indicators such as IRR
(internal rate of return on investment) or WACC (weighted average cost of capital).

2.2. Annual maintenance costs and structural repair costs

— These costs shall include both the annual costs of maintaining the network and the periodic costs relating to
repair, reinforcement and resurfacing, with a view to ensuring that the level of operational functionality of the
network is maintained over time.

— Such costs shall be apportioned between HGV and other traffic on the basis of actual and forecast shares of
vehicle kilometres and may be adjusted by objectively justified equivalence factors such as those set out in point
4.

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.

4. HGV share of traffic, equivalence factors and correction mechanism

— The calculation of tolls shall be based on actual or forecast HGV shares of vehicle kilometres adjusted, if
desired, by equivalence factors, to make due allowance for the increased costs of constructing and repairing
infrastructure for use by heavy goods vehicles.

— The following table gives a set of indicative equivalence factors. Where a Member State uses equivalence factors
with ratios differing from those in the table, they shall be based on objectively justifiable criteria and shall be
made public.

(1) The application of equivalence factors by Member States may take account of road construction developed on a phased basis or using

a long life cycle approach.

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Vehicle class (1)

Between 3,5t and 7,5t, Class 0

> 7,5 t, Class I

> 7,5 t, Class II

> 7,5 t, Class III

Equivalence factors

Structural repair (2)

Investments

Annual maintenance

1

1,96

3,47

5,72

1

1

1

1

1

1

1

1

(1) See Annex IV for the determination of the vehicle class.
(2) The vehicle classes correspond to axle weights of 5,5, 6,5, 7,5 and 8,5 tonnes respectively.’

— Tolling regimes which are based on forecast traffic levels shall provide for a correction mechanism whereby

tolls are adjusted periodically to correct any under or over-recovery of costs due to forecasting errors.

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ANNEX III

‘ANNEX IV

INDICATIVE VEHICLE CLASS DETERMINATION

The vehicle classes are defined by the table below.

Vehicles are classed in subcategories 0, I, II and III according to the damage they cause to the road surface, in ascending
order (Class III is thus the category causing most damage to road infrastructure). The damage increases exponentially
with the increase in axle weight.

All motor vehicles and vehicle combinations of a maximum permissible laden weight below 7,5 tonnes belong to
damage class 0.

Motor vehicles

Driving axles with air suspension or recognised
equivalent (1)

Other driving axle suspension systems

Damage class

Number of axles and maximum permissible gross
laden weight
(in tonnes)

Number of axles and maximum permissible gross
laden weight
(in tonnes)

Not less than

Less than

Not less than

Less than

Two axles

Three axles

Four axles

7,5
12
13
14
15

15
17
19
21
23
25

23
25
27

29
31

12
13
14
15
18

17
19
21
23
25
26

25
27
29

31
32

7,5
12
13
14
15

15
17
19
21

23
25

23
25

27
29
31

12
13
14
15
18

17
19
21
23

25
26

25
27

29
31
32

I

II

I

II

(1) Suspension recognised as equivalent according to the definition in Annex II to Council Directive 96/53/EC of 25 July 1996 laying
down for certain road vehicles circulating within the Community the maximum authorised dimensions in national and international
traffic and the maximum authorised weights in international traffic (OJ L 235, 17.9.1996, p. 59). Directive as last amended by Direc-
tive 2002/7/EC of the European Parliament and of the Council (OJ L 67, 9.3.2002, p. 47).

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Vehicle combinations (articulated vehicles and road trains)

Driving axles with air suspension or recognised as
equivalent

Other driving axle suspension systems

Damage class

Number of axles and maximum permissible gross
laden weight
(in tonnes)

Number of axles and maximum permissible gross
laden weight
(in tonnes)

Not less than

Less than

Not less than

Less than

2 + 1 axles

7,5
12
14
16
18
20
22
23
25

2 + 2 axles

23
25
26
28

29

31

33
36

2 + 3 axles

36
38

3 + 2 axles

36
38

40

3 + 3 axles

36
38

40

12
14
16
18
20
22
23
25
28

25
26
28
29

31

33

36
38

38
40

38
40

44

38
40

44

7,5
12
14
16
18
20
22
23
25

23
25
26
28

29

31

33

36

38

36

38
40

36

38

40

12
14
16
18
20
22
23
25
28

25
26
28
29

31

33

36

38

40

38

40
44

38

40

44’

I

II

III

II

III

II

III

I

II

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission adopted its proposal on 23 July 2003.

On 20 April 2004, the European Parliament adopted its opinion in first reading.

On 6 September 2005 the Council adopted its common position in accordance with Article 251 of the
Treaty.

In carrying out its work, the Council also took account of the opinion of the European Economic and
Social Committee (1) and of the Committee of the Regions (2).

II. ANALYSIS OF THE COMMON POSITION

It was at its fourth attempt, on 21 April 2005, that the Council was finally able to reach a political
agreement to pave the way for adoption of its common position, thereby closing an internal nego-
tiating process which had been ongoing for more than 18 months. The difficulty in reaching this agree-
ment is a reflection of the differing interests and attitudes of Member States depending both on their
geographic position (at the centre or the periphery of the internal market), and other factors, such as
the state of development of their existing road network and their preferred method for financing infra-
structure projects.

The negotiations took place in a policy context shaped by the Commission's 2001 White Paper on
European transport policy for 2010 (3), which highlighted the crucial role of effective charging for
transport infrastructure as a tool to rebalance the growth of the different transport modes, and thus
address the increasing problems of congestion and environmental damage.

1. Addressing key policy objectives

In its common position the Council has focused on achieving specific added-value improvements to
the existing Directive, so that the new legal framework will reflect the needs of a modern, 21st
century transport policy for the Community. In particular, the common position:

— addresses the problems of congestion and environmental damage

— provides a means to raise additional financing for investment into alternative infrastructure (modal

shift)

— gives greater transparency and objectivity in the setting of tolls, coupled with additional ‘tools’ to

allow the Commission to better monitor compliance

— adapts the legal framework to the public private partnership model of financing infrastructure

construction.

Changes corresponding to these four objectives are set out below.

(1) OJ C 241, 28/09/2004, p. 58.
(2) OJ C 109, 30/04/2004 p. 14.
(3) COM(2001) 370, 12/9/2001

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(i) Tackling congestion and environmental damage

Toll variation (Article 7(10))

The ability to vary tolls according to EURO class and time of day is the principal mechanism
envisaged for dealing with congestion and environmental damage. The Council took inspiration
from the European Parliament (amendment 29) in introducing the possibility to vary tolls at
weekends or on bank holidays. But the variation permitted by the Council text goes well
beyond that of amendment 29. A key difference is that the Parliament favours an overall limit,
so that the highest tolls cannot be more than double the lowest. By contrast, for variation
linked to road damage (e.g. weight, number of axles), the Council does not limit variation at all,
and for emission class and time variation the 100 % limits are cumulative. The effect of this is
that a heavy, polluting lorry travelling at a busy time of day could end up paying perhaps four
times more than a lighter, cleaner vehicle travelling at a quieter time. This effect is further
enhanced by the introduction of a possibility for 'zero rating' at certain times of day.

The safeguard to avoid abuse of these new possibilities is the introduction of a clear and
unequivocal requirement for variation schemes to be revenue neutral, and for any unintentional
excess revenue to be compensated for by reduced tolls in future years. This principle of revenue
neutrality is also found in Parliament's amendment 12.

The second element of the common position relevant to environmental and congestion issues
is the ‘mark-up’ discussed in the next section.

(ii) Financing for alternative infrastructure

The mark-up (Article 7(11))

The Council has accepted the Commission proposal for it to be possible, in exceptional cases,
to impose a mark-up on tolls in mountainous areas on roads subject to congestion or environ-
mental damage. For cross-border cases the level of 25 % is also retained, 15 % being the
maximum for non-cross-border cases. The suggestion of the Parliament (amendment 30) to
extend the mark-up to polluted urban zones was not taken on board. The requirement for
revenue from the mark-up to be used for cross-financing a TEN priority project in the same
transport corridor is retained and reinforced in the common position text.

The mark-up is significant because it represents additional net revenue (over and above the
costs of building the road being used) which is specifically earmarked for the funding of alterna-
tive (in most cases rail) infrastructure.

(iii) Transparent and objective toll levels, supervised by the Commission

‘Construction costs’ definition (Article 2(aa))

The common position includes this new definition, proposed by the Commission as a means of
defining the historic costs which can be taken into account when calculating toll levels. The
Council's text takes on board the suggestion of the Parliament (amendment 21) to permit only
a portion of these costs, but uses design lifetime, rather than the extent of amortisation, as the
reference for this apportioning. (Amortisation is more difficult to apply as concept if infrastruc-
ture construction is not funded through borrowing).

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Allowable costs (Article 7(9))

The common position takes up the Commission proposal to develop in more detail the costs
on which tolls may be based. Elements of Parliament's amendment 28, such as the deletion of
uninsured accident costs,
inclusion of a return on capital and clarification that these are
maximum levels (this clarification is found in Article 7a(1) of the Council's text) are taken on
board.

Frequent user discounts (Article 7(4b) and (4c))

Article 8b proposed by the Commission has been deleted and replaced by the above provisions
containing a percentage limit for frequent user discounts. This is a significant contribution to
ensuring much greater clarity and objectivity on the level of discounts permitted under Com-
munity law.

Methodology/Calculation principles (Annex III)

The short methodology proposed by the Commission has been expanded and developed into a
set of comprehensive principles for cost calculation and allocation. They are binding on all
future tolling systems introduced, although in an indirect manner for concession-based systems.
The Commission can update and clarify these principles through comitology.

Supervision of the system (Article 7a)

Whilst accepting the Parliament's suggestion to delete the provisions seeking to establish inde-
pendent infrastructure supervision authorities in Member States (amendments 18 and 38), the
role of the Commission to oversee the system and verify compliance of new tolling arrange-
ments with the rules in place is further developed in Article 7a.

(iv) Compatibility with public private partnerships (PPP)

Specific arrangements for concession contracts

Given that concession-based public-private partnerships are becoming the most common
means of financing and building new infrastructure, the Council has introduced a number of
elements into the common position text seeking to ensure that the Directive is adapted to the
realities of PPP. These changes, which are effectively the Council's response to the concern
expressed in Parliament's amendments 9, 33 and 52, are:

— special treatment for contracts in the ‘construction costs’ definition in Article 2(aa),

— the possibility for tolls to include a profit margin in Article 7(9),

— ‘indirect application’ to concession contracts of the supervision system set out in Article 7a.

2. Other significant issues

Hypothecation/Earmarking of toll revenue (Article 9(2))

The Council accepted in its entirety the delicate compromise suggested by the European Parliament
on this question in amendment 48. Strict earmarking of revenue from the mark-up (Article 7(11))
for reinvestment in the appropriate TEN project is maintained.

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External environmental costs

After examining Parliament's amendments 2, 17, 25, 28, 41 and 50, the Council chose to follow
the proposal of the Commission and to maintain the current system based on the recovery of infra-
structure costs.

Scope (Article 7(1) and (2))

The Commission proposal would require Member States to apply an ‘all or nothing’ tolling system,
applying to all TEN routes and all vehicles down to 3,5 tonnes. The Council considered that such a
scope would create a major disincentive to the introduction of tolling systems in many Member
States, where public acceptance of tolling cannot be assumed. As such, the Commission proposal
could seriously undermine the central objective of moving towards a system where the users contri-
bute more to the costs of the transport infrastructure they use. The Council has instead opted for a
framework whereby the Community rules apply whenever there is tolling on a TEN route of a
vehicle of 3,5 tonnes and above, but Member States retain the ability to decide which parts of their
TEN network is tolled and whether to limit tolling to heavier vehicles.

In other places in the Directive the Council has sought to limit the flexibility suggested by the
Commission for Member States to charge very high tolls on certain routes (for example routes with
a high proportion of transit traffic). For example, Article 7(10)(c) proposed by the Commission,
which authorised varying tolls for particular roads in the network, has been deleted.

Compensation to road users

Like the European Parliament (see amendment 36), the Council was concerned that the means
favoured by the Commission's proposal to compensate hauliers for any new costs caused by tolling
schemes, namely reductions in vehicle taxation, might have a discriminatory effect. The Council
also saw no reason to ‘undo’ the harmonisation of vehicle taxation achieved by the existing Direc-
tive. Article 7b as proposed by the Commission is therefore deleted from the Council's text and
replaced by recital 10 which refers also to other means of providing compensation such as reduc-
tions in fuel taxation, thus picking up on the idea found in Parliament's amendment 13.

3. European Parliament Amendments

The response of the Council to amendments 2, 9, 12, 13, 17, 18, 21, 25, 28, 29, 30, 33, 36, 38,
41, 48, 50 and 52 is set out above in relation to the key issues.

In addition the Council has accepted, in whole, in part or in principle, amendments 3, 4, 10, 22,
24, 34, 39, 42 and 43.

III. CONCLUSION

The intensive and sustained efforts made within the Council to reach agreement on this common posi-
tion reflect the acute awareness of the importance of this subject to the Community's wider transport
policy. The common position establishes a legal framework for charging which is clearer and easier to
implement in a transparent, objective and fair way, but which at the same time gives new possibilities
for tolls to be legitimately used as a tool to address the environmental and congestion problems that
the Community faces. The text achieves real, identifiable and tangible improvements to the 1999 Direc-
tive, carefully balancing the need to move towards a sustainable transport policy with the importance
of a properly functioning internal market.