2009/150/EC: Commission Decision of 25 January 2006 on State aid C 54/03 (ex N 194/02) which the Federal Republic of Germany is planning to implement concerning a reimbursement mechanism linked to the introduction of a toll system for heavy goods vehicles on German motorways (notified under document number C(2006) 89) (Text with EEA relevance)
Date: 2006-01-25
Institutions: European Commission
Subjects: Germany, commercial vehicle, redemption, toll, transport company, transport price

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Official Journal of the European Union

21.2.2009

COMMISSION

COMMISSION DECISION

of 25 January 2006

on State aid C 54/03 (ex N 194/02) which the Federal Republic of Germany is planning to
implement concerning a reimbursement mechanism linked to the introduction of a toll system
for heavy goods vehicles on German motorways

(notified under document number C(2006) 89)

(Only the German text is authentic)

(Text with EEA relevance)

(2009/150/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,
and in particular
Article 88(2) thereof,

establishing the European
subparagraph of
the

first

Having regard to the Agreement on the European Economic
Area, and in particular Article 62(1)(a) thereof,

Having regard to Council Regulation (EC) No 659/1999 of
22 March 1999 (1) laying down detailed rules for the appli­
cation of Article 88 of the Treaty,

Having called on interested parties to submit their comments
pursuant to the provision(s) cited above (2) and having regard to
their comments,

Whereas:

1. PROCEDURE

(1)

on

12 March

received at

letter dated 6 March 2002,
(DG TREN)

By
the
2002
Commission
(A(02)54606), and by letter dated 7 March 2002,
registered on 7 March 2002 (A(02)54445), the Federal
Ministry of Transport, Building and Housing of
the
Federal Republic of Germany informed the Commission
that the Federal Government intended to introduce a toll
reimbursement system accompanied by the introduction

vehicles. By

of a mileage-based motorway user charge for heavy
goods
letter dated 21 March 2002
(D(02)1080), the Secretariat-General of the Commission
acknowledged receipt of Germany’s letter and registered
the notification of the draft law under N 194/02.

By letter dated 23 July 2003, registered under C 54/03,
the Commission informed the Federal Republic of
Germany that it had decided to initiate the procedure
laid down in Article 88(2) of the EC Treaty in respect
of the aid.

The Commission decision to initiate the procedure was
published in the Official Journal of the European Union (3).
The Commission called on interested parties to submit
their comments.

The German authorities replied to the questions raised by
the Commission by transmitting two communications
both dated 22 August 2003, registered on 1 September
2003 (A(03)/28354).

It

The Commission further received 12 comments from
interested parties.
forwarded them to the Federal
Republic of Germany, which was given the opportunity
to react;
its comments were received by letter dated
7 November 2003, registered on 13 November 2003
(A(03)34681).

(2)

(3)

(4)

(5)

(1) OJ L 83, 27.3.1999, p. 1.
(2) OJ C 202, 27.8.2003, p. 5.

(3) OJ C 202, 27.8.2003, p. 5.

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L 50/31

(6)

(7)

(8)

The Commission received additional information by the
German authorities transmitted on 23 October 2003,
registered on 27 October 2003 (A(03)33102), on
23 December 2003, registered on 26 December 2003
(A(03)38579), on 1 July 2004, registered on 6 July 2004
(A(04)24123), 2 December 2004, registered the same
date, 25 January 2005, registered on 28 January 2005,
14 July 2005, registered on 28 July 2005 (A(05)19151)
and 11 November 2005, registered on 14 November
2005 (A(05)32154).

2. DETAILED DESCRIPTION OF THE AID

2.1. The toll reimbursement system

As from 1 January 2005 the German authorities have
introduced a mileage-based motorway toll
for heavy
goods vehicles and fixed the average toll rate at 12,4
cents/km. They have communicated to the Commission
their intention to increase in the near future the rate to
15 cents/km while, at the same time, introducing a toll
reimbursement system (hereinafter referred to as TRS) to
(partially) compensate road hauliers for the increase of
the total charges. The amount of this TRS consists of an
annual one-off toll reimbursement of a maximum of 2,6
cents/km. However, the toll reimbursement depends on
the payment of a certain amount of excise duties on fuel
purchased in Germany,
to be proved by presenting
appropriate documents. Against proof of payment of
8,6 cents of excise duties on fuel paid within Germany,
2,6 cents/km will be reimbursed.

2.2. The objective of the aid measure

The objective of the measure is to fix the toll rate per
kilometre by taking into account appropriately other
traffic-specific payments made by road hauliers liable
for the toll within the territory of the German law. The
measure takes into account that most of the users already
contribute to covering infrastructure costs by paying
taxes (annual vehicle tax, fuel tax), and aims at reim­
bursing a part of
these contributions to those users
who,
in addition to the existing charges, pay toll now
as well. As from 1 January 2005, the toll has been fixed
at a rate of 12,4 cents/km. The presently intended
increase by 2,6 cents/km to reach the average amount
of 15 cents/km will, in the view of German authorities,
fully cover the costs for the construction, development
and operation of the relevant infrastructure in the sense
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
(Eurovignette Directive) (4), in particular Article 7(9) and
(10) (5). Because of the increase of the total infrastructure

charge for road hauliers, the German authorities propose
at the same time to introduce a reimbursement system as
a partial compensation.

(9)

2.3. Amount of aid

The 2,6 cents/km toll reimbursement is the result of the
following calculation which is based on a decision of the
German authorities to compensate EUR 600 million:
Considering vehicle mileage totalling 22,7 billion km
per year (vehicles of not less than 12 tonnes), a toll of
1 cent/km produces a toll revenue of EUR 227 million
per year. Assuming a consumption of 30 litres/100 km
and EUR 0,01 excise duties per litre on fuel, 1 cent of
excise duties produces excise duty revenue of approxi­
mately EUR 68 million per year (6). A 1 cent/km toll is
therefore equivalent to about 3,3 cents of excise duties (7)
per litre to produce the same revenue. The decision to
reimburse EUR 600 million therefore results in the reim­
bursement of about 2,6 cents of the toll charge per
km (8). In order to be eligible for this reimbursement,
proof of payment of excise duties amounting to 8,6
cents (9) per litre would have to be provided.

(10)

Since the overall amount of reduction envisaged by the
toll reimbursement system is considered to be EUR 600
million per year, this compensation corresponds to a
reduction of approximately 17,6 % of the toll revenue
of about EUR 3,4 billion per year.

2.4. Duration

(11)

time-limited. However,

the
The proposed TRS is not
German authorities have indicated that,
this would
become a condition imposed by the Commission, they
can modify the Statutory Order and introducing a system
of time-limitation.

if

2.5. Beneficiaries

(12)

the TRS will be all road hauliers or
Beneficiaries of
owners of lorries using German motorways, regardless
of their nationality or residence, with vehicles of not
less than 12 tonnes. However, the toll reimbursement
depends on the payment of excise duties on fuel
purchased in Germany.

(4) OJ L 187, 20.7.1999, p. 42.
(5) This has been confirmed by a study carried out by the Ősterrei­
chisches Institut für Raumplanung, Wien, in which the conclusion
has been drawn that
the infrastructure have been
determined properly in accordance with Directive 1999/62/EC.

the costs of

(6) 227 million per 100 km; 227 × 30 : 100 = 68 million.
(7) 227 : 68 = 3,3.
(8) 600 : 227 = 2,6.
(9) 2,6 × 3,3 = 8,6 (cents).

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Official Journal of the European Union

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(13)

(14)

2.6. Legal basis

The TRS is based on Article 1 of the Law on the impo­
sition of mileage-based charges for the use of motorways
by heavy goods vehicles adopted by the Government on
22 March 2002 (hereinafter referred to as the Law). The
Law was signed on 5 April 2002, published in the
Federal Law Gazette (Bundesgesetzblatt) on 11 April
2002 (10).

credit) is generally offset against the toll debt incurred
for the vehicle liable for toll in the following year. The
party liable for toll must present — by 31 March of the
following year at the latest — the request for a toll
for a particular vehicle to the Federal
reimbursement
Office
the body
entrusted with the application of the Law and responsible
for monitoring and dealing with infringements.

for Goods Transport which is

Section 3, paragraph 2 of Article 1 of the Law empowers
the government to fix the toll rate per kilometre by
Statutory Order with the consent of
the Bundesrat
taking into account
the number of axles and the
emission class of the vehicles. Section 3, paragraph 3
empowers the German Government to fix the toll rate
per kilometre by taking into account appropriately other
traffic-specific payments made by parties liable for the
toll within the territory of the Law by Statutory Order.

(18)

If, however, the toll credit cannot be offset against a toll
debt in the following year, it will be paid out on request.
The request must be presented by 31 March of
the
following year at
to the Federal Office for
Goods Transport.

the latest

2.8. Grounds for initiating the procedure

(19) On 23 July 2003 the Commission opened the formal
investigation procedure on the following grounds:

(15) As regards the TRS, the Federal Government of Germany
has proposed a new section to be introduced in the
existing ‘Statutory Order on the fixing of the toll rate
for heavy goods vehicles’ dated 24 June 2003 (11). The
proposal is based on Article 1, section 3, paragraph 3 of
the Law. The German government has confirmed that the
the
if
only
Statutory Order
Commission takes a positive decision on the TRS.

be modified

shall

(16)

(17)

2.7. Technical aspects of the proof of payment of
excise duties

The key element for the application of the TRS is the
proof of payment of excise duties in Germany. The proof
of payment will consist of presenting appropriate filling
station receipts or fuel credit card company vouchers
from Germany,
in each case stating the registration
number of the refuelled vehicle liable for the toll. The
proof of payment of excise duties on fuel within
Germany shall also be in accordance with the current
version of the Mineral Oil Tax Law of 21 December
1992 (12).

The toll shall be reduced only against the proof that toll
payment and excise duties have been paid during the
reimbursement
same
(toll
amount accumulated in any one calendar year

calendar year. The

total

toll

(a) The Commission expressed its doubts as regards the
necessity of the intended replacement of the initially
fixed toll rate by a system of higher rates combined
with reimbursement. Therefore, Germany was asked
to provide all the arguments, counterbalancing the
higher administrative burden compared to the initial
system applied as of the date of its introduction.

(b) The Commission also expressed its doubts whether
the measure would not lead to a de facto discrimi­
foreign road hauliers. German au-
nation against
thorities were therefore asked to provide all
the
necessary information why the measure should be
considered non-discriminatory.

(c)

In addition, the Commission expressed the need to
clarify the environmental
the reimbur­
sement system since a negative environmental effect
could
common interest. The
Commission therefore invited Germany to provide
further information on this issue.

impact of

against

the

be

(10) BGBl. G 5702, 2002, Part I No 23, published at Bonn on 11 April
2002, p. 1234, modified by the Law dated 28 June 2003, BGBl. I,
p. 1050.

(11) Statutory Order on the fixing of the toll rate for heavy goods

vehicles, 24 June 2003, BGBl. I, p. 1001.

(12) BGBl. I, pp. 2150, 2185; 1993, p. 169.

(d) The Commission also could not yet conclude that the
the conditions of
it complies with

toll system as such fulfils all
Directive 1999/62/EC and that
Article 28 of the EC Treaty.

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Official Journal of the European Union

L 50/33

(e) Furthermore, the Commission criticised at that time
the lack of information as regards the relevant legal
basis for the implementation of an eventual toll reim­
bursement system and therefore asked the German
authorities to provide the Commission with e.g. a
new draft Statutory Order on the basis of Article 1
section 3 paragraph 3 of the Law.

(f) Finally, the Commission needed further clarification
whether the toll reduction system falls under the
formal procedure such as laid down in Article 8.4
of Council Directive 92/81/EEC of 19 October 1992
on the harmonisation of
the structures of excise
duties on mineral oils (13). Hence, German authorities
were asked to explain why the aid scheme was not
notified following the procedure under the Directive
92/81/EEC.

3. COMMENTS FROM INTERESTED PARTIES

(20)

the

framework of

formal opening of

the
In the
the Commission received 12 contributions
procedure,
from third parties, 10 of
them from national or
European associations (14) and 2 of them from Member
States (15). Ten contributions argue against the measure
and two contributions develop arguments defending the
aid scheme (16).

(13) OJ L 316, 31.10.1992, p. 12. Since 1 January 2004, Directive
92/81/EEC has been replaced by Directive 2003/96/EC of
27 October 2003 restructuring the Community framework for
the taxation of energy products and electricity (OJ L 283,
31.10.2003, p. 51).

(14) Belgium: FEBETRA (Fédération Royale Belge des Transporteurs) sent
on 11 September 2003 and registered on 15 September 2003
(A/29597); SAV (De Beroepsorganisatie van de Vlaamse Goederen­
transport Ondernemers en Logistieke Dienstverleners), sent on
15 September 2003 and registered on 19 September 2003
(A/30036); Danmark: DTL (Dansk Transport og Logistik), sent on
26 September 2003 and registered on 30 September 2003
(A/30852); Germany: BGL (Bundesverband Güterverkehr Logistik
und Entsorgung), sent on 22 September 2003 and registered on
23 September 2003 (A/30304); Netherlands: TLN (Transport en
Logistiek Nederland), sent on 25 September 2003 and registered
on 26 September 2003 (A/30535); Spain: ASTIC (Asociación del
Transporte Internacional por Carretera), sent on 26 September
2003 and registered on 13 October 2003 (A/31891); ATRADICE
(Asociación de Empresas de Transporte de la Región Centro), sent
on 25 September 2003 and registered on 26 September 2003
(A/30540); CETM (Confederación Española de Transporte de
Mercancías) sent on 26 September and registered on 9 October
(A/31648); FENADISMER (Federación Nacional de Asociaciones
sent on 25 September 2003 and
de Transporte de España)
registered on 2003 (A/30502); FROET (Federación Regional de
Organizaciones Empresariales de Transporte de Murcia), sent on
22 September 2003 and registered on 23 September 2003
(A/30273).

(15) United Kingdom: Permanent Representation, sent on 2 October
2003 and registered on 8 October 2003 (A/31558); Spain:
Dirección general de Transportes del Ministerio de Fomento, sent
on 24 September 2003 and registered on 26 September 2003
(A/30588).

(16) Contributions defending the reimbursement

system: BGL and

United Kingdom.

3.1. Arguments against the reimbursement measure

3.1.1. De facto discrimination of foreign road hauliers

3.1.1.1. D i s c r i m i n a t i o n o f

f o r e i g n r o a d
h a u l i e r s d u e t o t h e d i f f e r e n c e s
i n t h e l e v e l o f e x c i s e d u t i e s
i n
M e m b e r S t a t e s (17)

(21) A large number of interested parties argue that the reim­
bursement system will in practice not be given on a fair
basis independently of the nationality of road hauliers
due to the differences in the level of excise duties in
Member States. In particular, the reimbursement system
seems to be de facto discriminatory, as non-German road
hauliers will not fill their tank in Germany due to the
high excise duties on fuel in Germany and will therefore
not benefit of the TRS.

3.1.1.2. D i s c r i m i n a t i o n o f

s i n c e
r e d u c t i o n o f

f o r e i g n r o a d
t h e m e a s u r e ,
t a x
i n f r a s t r u c t u r e
G e r m a n

t h e

o f
f a v o u r s

a

h a u l i e r s
s e e n a s
t h e
f o r
( t o l l ) ,
c o m p a n i e s (18)

u s e

(22)

It was also argued that the measure, seen as a reduction
of the tax for the use of infrastructure, favours German
road hauliers since, again, road hauliers from abroad will
not fill their tank in Germany due to the high excise
duties on fuel. As a consequence, foreign road hauliers
the full
will pay a higher
infrastructure charge (i.e.
amount)
than German road hauliers benefiting from
such a reimbursement system and paying de facto a
‘reduced’ infrastructure charge.

3.1.1.3. D i s c r i m i n a t i o n o f

f o r e i g n r o a d
t h a t
h a u l i e r s
d u e
t o a p a r t i a l
t h e m e a s u r e
p r i c e
c o m p e n s a t i o n
d i f f e r e n c e
b e t w e e n
G e r m a n y a n d o t h e r c o u n t r i e s (19)

t o
l e a d s
o f

f u e l

f a c t

t h e

t h e

o f

(23)

Some interested parties specify that, as a consequence of
the aid measure, German road hauliers will be able to
reduce the price level for the transport of goods. This will
create a disadvantage to companies transporting goods
on long distance. Hence, the aid measure will indirectly
discriminate against non-German road hauliers.

(17) ASTIC, ATRADICE, CEMT, Dirección general de Transportes del

Ministerio de Fomento, DTL, FEBETRA, FROET, SAV, TLN.

(18) See e.g. ASTIC.
(19) See e.g. DTL, FROET.

(24)

(25)

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Official Journal of the European Union

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3.1.1.4. D i s c r i m i n a t i o n o f

d u e

f o r e i g n r o a d
t h a t
h a u l i e r s
t h e y h a v e
e x c e s ­
s i v e l y t o t h e h a r m o n i s a t i o n o f
m i n e r a l o i l

t o c o n t r i b u t e

t a x (20)

f a c t

t h e

t o

to

the

necessary

In addition, third parties argue that the increase of the
from 12,4 cents/km up to 15 cents/km which
toll
becomes
compensation
finance
measure will be financed by all road hauliers, including
by those who will not benefit from the toll reimbur­
sement. Hence, non-German road hauliers will have to
accept higher toll rates in order to finance the harmoni­
sation of mineral oil tax intended by German authorities.
Since interested parties consider that this is not justified,
they conclude that the measure is discriminatory.

3.1.1.8. A d i f f e r e n c e
c a n n o t ,
g r a n t i n g o f S t a t e a i d ( 2 4 )

i n t h e
i t s e l f ,

b y

t a x b u r d e n
t h e
j u s t i f y

(28) An additional argument presented by third parties is
linked to a Court decision on an Italian aid scheme
which consisted in a tax credit scheme for Italian road
hauliers and provided for compensatory payments to be
made to transport undertakings established in other
estimated
Member
consumption of diesel required for the distance covered
on
the
Commission’s decision by which the Italian Republic
the granted aid. Therefore,
was obliged to recover
in analogy to the Italian case,
interested parties argue,
that a difference in the tax burden for mineral oil
cannot by itself justify the granting of State aid (25).

The Court

confirmed

territory.

on the

States,

Italian

basis

the

of

3.1.1.5. D i s c r i m i n a t i o n

s t a t i o n s ,

f i l l i n g
i n n e i g h b o u r i n g r e g i o n s o f
G e r m a n t e r r i t o r y (21)

o f
i n

f o r e i g n
p a r t i c u l a r
t h e

Interested parties argue that the TRS does not give an
incentive to improve the transport
infrastructure, but
gives an incentive to fill the tank in Germany. As a
favour
system will
consequence,
to the detriment of non-
German filling stations
reimbursement
German filling stations. Hence,
measure has also a discriminatory effect as
regards
foreign filling stations.

the reimbursement

the

3.1.1.6. D i s c r i m i n a t i o n

M e m b e r
t h a t
i n c o m e (22)

t h e y

S t a t e s ,

w i l l

o f
d u e

t h e
l o o s e

o t h e r
f a c t
t a x

(26) As a consequence, another argument presented by
in
loose tax income due to a

interested parties is that other Member States, e.g.
neighbouring regions, will
reduced purchase of fuel on their territories.

3.1.1.7. D i s c r i m i n a t i o n

o f

t h a n 1 2 t o n n e s

l e s s
r e i m b u r s e m e n t h a s d e
e f f e c t
a m i n e r a l
r e d u c t i o n (23)

o f

o f
v e h i c l e s
s i n c e
t h e
f a c t o t h e
t a x

o i l

3.1.2. Discrimination of foreign road hauliers due to specific
administrative
mechanisms

or

reimbursement
burden (26)

(29)

(30)

(31)

First, the reimbursement, as it seems, is not linked to the
real use of motorways in Germany. As the reimbur­
sement mechanisms will, according to third parties,
accept all filling station receipts regardless of the fact
whether the vehicle used German motorways or other
roads. This will
favour mainly German road hauliers
with a mixed fleet of vehicles below and above 12
tonnes.

Secondly, third parties argue that the measure creates a
discriminatory effect because the total toll reimbursement
accumulated in one calendar year can be offset against
the toll debt incurred in the following year. This payment
mechanism advantages German road hauliers compared
to non-German road hauliers which might use German
motorways only occasionally.

Thirdly, interested parties argue that the measure is not
compatible with Directive 1999/62/EC since the reimbur­
sement
and administrative
obstacles and will
lead to the fact that many foreign
in particular occasional users, will not claim a
users,
reimbursement.

system creates

linguistic

(27)

Seen as an indirect reduction of excise duties, some
interested parties argue that the measure is considered
to be discriminatory against
fuel
using German motorways with vehicles of less than 12
tonnes.

those consumers of

(20) See e.g. TLN.
(21) See e.g. ATRADICE, ASTIC, CEMT, FROET.
(22) See e.g. ATRADICE.
(23) See e.g. ASTIC, ATRADICE, CEMT.

(32)

Finally, interested parties refer to some practical aspects
of the toll system (such as the lack of On-Board Units
(OBUs), etc.) which in their view also has an indirect
impact on the aid measure itself.

(24) See e.g. ASTIC, CEMT.
(25) In this context,

interested parties refer to Case C-6/97,
Commission [1999] ECR I-2981, in particular paragraph 21.

Italy v

(26) See e.g. ATRADICE, CEMT, FROET.

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3.1.3. Violation of Directive 92/81/EEC on the harmoni­
the structures of excise duties on mineral

sation of
oils (27)

(33)

Several third parties argue that since the reimbursement
system leads to an indirect reduction of excise duties,
Directive 92/81/EEC is violated if specific procedural
rules, such as Article 8(4) on notification procedure, is
not respected (28).

3.1.4. Negative effects on the environment (29)

(34)

It should also be mentioned that one interested party
argues that
the measure favours the consumption of
fuel
in view of the fact that the amount of reimbur­
fuel
sement depends directly on the
consumption. As a consequence, the measure would be
against the Community interest.

amount of

3.1.5. Additional arguments related to the toll system

(35)

In addition, all interested parties arguing against the aid
measure criticise the toll
such, without
sometimes clearly distinguishing the toll from the TRS.
With regard to the toll, the following main arguments
were raised by interested parties:

system as

(36)

The fact that the increased toll is levied only on vehicles
of at least 12 tonnes is discriminatory since it charges
transport of goods and favours
mainly international
transport of goods on
indirectly the mainly national
less than 12 tonnes (30).
vehicles of
In this respect,
interested parties referred to several Court cases (31).

(37) According to interested parties, the toll system infringes
Directive 1999/62/EC, in particular Article 7(4), since the
toll is considered to be discriminatory on the grounds of
the nationality of the haulier or the origin or destination
of the vehicle (32).

(27) See e.g. ASTIC, ATRADICE, CEMT.
(28) Now Article 19 of the Directive 2003/96/EC.
(29) See e.g. Dirección general de Transportes del Ministerio de

Fomento.

(30) ASTIC, ATRADICE, CEMT.
(31) See Case C-205/98, Commission v Austria [2000], ECR I-7367, in
particular paragraphs 76, 78 and 86; Case C-6/97 Italy v Commission
[1999], ECR I-2981, in particular paragraphs 15, 21, 23; Case C-
200/97 Ecotrade [1998]; Case C-90/94, Haar Petroleum [1997],
ECR I-4085, in particular paragraphs 34, 35, 37 and 40.

(32) In this context,

it

is also referred to Commission v Austria in

particular paragraphs 76, 78, 85, 86, 101 and 104.

(38)

The practical difficulties (33) of the toll system create a
disadvantage for non-German road hauliers. The lack of
efficient alternatives to the installation of OBUs also
violates Article 7(5) of Directive 1999/62/EC.

(39)

(40)

of

the

toll

costs

and its

amount of

infrastructure

Interested parties also expressed their doubts as regards
the
compliance with
the Eurovignette Directive (34). As the
Article 7(9) of
costs for the construction of the German motorways
seem to be mostly depreciated, the calculation of the
costs should mainly be related to the operating and
developing
network
the
concerned. In addition, it is argued that the toll system
is discriminatory due to the fact that the toll will be
levied by 100 % upon heavy goods vehicles of not less
than 12 tonnes while — according to information
provided by German authorities — they cause only
45 % of the costs. The exemption for private vehicles
for tourism purposes also seems to be discriminatory.
it is stated that the average toll rate of
Furthermore,
12,4 cents/km seems to be too high.
It appears that
Germany uses the higher toll rate to cross-subsidise
other transport modes which would violate both the
‘users-pay’-principle and Article 9(2) of
the Directive
1999/62/EC.

contradicts with
since

It is further argued that the German toll system, as it
17
seems,
of Directive
1999/62/EC,
artificial barriers,
distort competition within Europe and lead away from
a harmonised European model of infrastructure charging,
guaranteeing interoperability.

it will

recital

create

(41)

The German law introducing the new toll also seems to
be discriminatory to the detriment of non-German road
hauliers as regards the emission classes of vehicles.

(42)

Finally,
it is argued that the toll system violates other
Treaty provisions such as Article 28, 97, 90 and 92 (35).

(33) Such as the lack of authorised workshops for the installation of
OBUs, the non-access of road hauliers to the Internet system, the
problem of registration and re-routing and the language problem at
terminals, insufficient forms of payment (OBU, Internet, Terminal),
language problems, etc.

(34) See also Joined Cases C-430/99 and C-431/99 Sea-Land Service and
Nedlloyd Lijnen [2002] ECR I-5235, paragraph 43 of the judgment
and in particular paragraphs 85, 101 and 120 to 123 of the
Opinion of Advocate General Alber, together with the case-law
cited there.

(35) See also Haar Petroleum in particular paragraphs 34, 35, 37 and 40.

L 50/36

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(43)

(44)

(45)

(46)

(47)

3.2. Arguments favouring the reimbursement system

to avoid an overall

Paper on transport policy (36)

It is said that the aid is necessary, in the interest of the
Community and respects the principle of proportionality
by using the following arguments: The Commission’s
White
as
as well
Article 7 ter of
the Eurovignette
the new draft of
Directive (37), both allow a fiscal compensation for
traffic users charged for using the infrastructure in
taxes. The
order
measure itself does not reduce the mineral oil tax. The
excise duty is only serving as a reference to calculate the
reimbursement of the toll. In addition, it can be shown
tax in Germany is
that
in
declining due
fuel
Germany. The
therefore
considered to be a necessary measure to keep the
overall increase of charges proportionate, which is also
in the interest of the Community.

the income of mineral oil
to the
reimbursement

lesser purchase of
system is

increase of

The aid measure clearly respects the principle of non-
since German and non-German road
discrimination,
hauliers can both benefit from the aid measure. In the
view of the interested party, any discrimination which
exists stems from the inactivity of the Council, where
the harmonisation question is dormant
since 1985.
Given this lack of harmonisation on excise duties, the
TRS would only help to neutralise the disadvantages
encountered by German road hauliers. In this connection,
it can be shown that the German share of the carried
road haulage has been
tonnenage of
continuously declining from 39,0 % in 1985 to 21,6 %
road haulage is
in 2002.
becoming increasingly dominant:
In 2015, more than
half of the whole traffic volume on German motorways
will be allocated to cross-border trade of goods. It is also
said that discrimination would only appear
road
hauliers not having their office registered in Germany
had to bear higher expenses or were submitted to a
higher administrative burden for
the reimbursement
than German road hauliers, which is not the case.

In addition, cross-border

cross-border

if

Third parties also stated that the aid measure does not
lead to a distortion of competition in view of the fact
that the compensation of EUR 600 million per year only
corresponds to 17,6 % of the additional costs of the
infrastructure charge.

it

is

argued that

the measure

Finally,
cannot be
considered to be State aid since according to paragraph
tax
13 of
measures are general measures which do not constitute
State aid pursuant to Article 87(1) of the EC Treaty.

the Commission Notice 98/C 384/03 (38)

(36) Towards gradual charging for the use of infrastructure, p. 71.
(37) Proposal for a Directive of the European Parliament and of the
Council amending Directive 1999/62/EC on the charging of
heavy goods vehicles
certain infrastructures
(COM(2003) 448 final).
(38) OJ C 384, 10.12.1998, p. 3.

the use of

for

4. COMMENTS FROM THE FEDERAL REPUBLIC OF
GERMANY

In their view,

there is a direct

their nationality or

residence. Neither does

In the view of the German government, the measure
does not lead to a direct discrimination as the reimbur­
sement is made available for all road hauliers, regardless
of
the
measure leads to a de facto discrimination. First, they
argue that
link between the new
charge for the use of German motorways and the fuel
consumption which again is directly linked to the
amount of excise duties on fuel.
the
connection between toll reduction on the one hand
and the payment of excise duties on the other hand is
reasonably justified as both payments can be considered
as a contribution to the cost of
In
addition, the measure does not foresee any thresholds,
e.g. a minimum amount of toll charge or a minimum
transport volume. Furthermore, the decision whether to
fill the tank within Germany or not is a purely economic
decision which will be taken by German road hauliers as
well as by non-German road hauliers. All road hauliers
will
fill their tanks where they can see an economic
benefit. In other words, the decision where to fill the
fuel. The
tank is mainly influenced by the price of
German authorities
in
respect
Germany both the part of the excise duty on the fuel
sale price and the sales price itself are among the highest
in EU Member States.

infrastructure.

in this

argue

that

(48)

The German authorities also note that the measure is
fully in line with the territoriality principle.

(49)

The German authorities contradict the argument that the
TRS can be seen as a reduction of the tax for the use of
infrastructure and that it therefore would discriminate
against foreign road hauliers.
In the view of German
authorities, the reimbursement will be paid out to both
German road hauliers and non-German road hauliers.
The TRS will lead to a situation where both categories
will contribute to the financing of German motorways in
proportion of their use of the infrastructure.

cheaper

filling of

(50) As regards the argument of a partial compensation of the
price difference of
fuel between Germany and other
countries, the German authorities cannot see any dis­
foreign road hauliers. They agree
crimination against
that the filling of tanks outside the German territory
tanks within
may be
than the
Germany, even after having taken into account
the
amount of the reimbursement. However, this calculation
will be done by German and by non-German road
hauliers alike. According to the German authorities,
over 80 % of the German road hauliers take advantage
of
lower fuel prices in other countries. However, as
German road hauliers in general already suffer from a
very high level of excise duties which creates a disad­
vantage to their competitive position, they will not be
able to reduce their price level on the transport of goods,
more than any other road haulier availing himself of the
measure. The effect of the aid measure would therefore

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Official Journal of the European Union

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(51)

(52)

(53)

(54)

in a reduced distortion of competition
only consist
caused by the very high level of excise duties
in
Germany, but will not create any advantage to German
road hauliers allowing them to reduce the price level for
the transport of goods.

The German authorities argue that the increase of the toll
is justified in spite of
the TRS, given that not only
German road hauliers will benefit from the compensation
measure, but also non-German road hauliers. Hence,
non-German road hauliers will have to pay higher toll
rates but benefit from the TRS which will prevent an
excessive contribution of non-German road hauliers to
the harmonisation of mineral oil tax.

(55) As regards the argument that a difference in the tax
burden cannot, by itself,
justify the granting of aid,
German authorities state that the Italian case quoted by
third parties in this connection is not relevant for the
German case since the general framework and conditions
are not the same. They argue that in the past a large
proportion of the infrastructure costs in Germany have
been funded through excise duties on fuel. Heavy goods
vehicles that use federal motorways are now paying a
double contribution to infrastructure costs, in the form
of both excise duties on fuel and the toll. The TRS takes
into account
infrastructure costs contributions already
paid in Germany and will therefore only compensate
hauliers for a double payment in the interest of a fair
charging for the costs of infrastructure.

(56)

Interested parties argue that the reimbursement system
will favour German filling stations to the detriment of
non-German filling stations. The German authorities,
however, argue that
in the
the existing differences
mineral oil
tax between Member States have already
the effect of creating so-called ‘fuel tourism’, in particular
with neighbouring countries. Measures which help to
reduce these differences — such as the TRS — should
also help to reduce the so-called ‘fuel tourism’. According
to the German authorities,
it is therefore not the aid
measure which will discriminate against foreign filling
stations. On the contrary,
the aid measure will only
lead to the fact that foreign filling stations will be less
favoured than they are now.

The German authorities also argue that
the reimbur­
sement system does not foresee in a mechanism which
would allow for the acceptance of all appropriate filling
the fact of whether the
station receipts regardless of
vehicle used German motorways or other roads. On
the contrary, Germany reconfirms that receipts are only
registration
acceptable
the toll.
number of
the
that
Hence, German authorities
measure would favour German road hauliers with a
mixed fleet of vehicles below and above 12 tonnes
such as has been argued by interested parties.

if
the refuelled vehicle liable for

can exclude

the voucher

indicates

the

Third parties argue that as a consequence of the aid
in neighbouring
measure other Member States, e.g.
regions, will
to a reduced
the German authorities
purchase of
argue that measures which will
lead to a reduction of
‘fuel tourism’ are justified even if this would lead to a
lower tax income in neighbouring regions.

loose
fuel. However,

tax income due

(57) Germany also argues that since the payment mechanism
is the same for all users of German motorways, it is not
clear why the system would discriminate against non-
German road hauliers which might use the motorways
only occasionally. The total
toll reimbursement accu­
mulated in any one calendar year may be offset against
the toll debt in the following year.

(58)

The German authorities also argue that the measure is
not discriminatory against those consumers of fuel using
German motorways with vehicles of less than 12 tonnes.
According to the German authorities, it is clear that the
reimbursement is only given under the condition that the
toll on lorries exceeding 12 tonnes is paid. Therefore, the
reimbursement cannot be seen without the overall effect
of a net burden for these lorries. Since, on balance, they
will be charged more than they receive in return,
it is
difficult to argue that the reimbursement itself favours
these vehicles above 12 tonnes, or, in other words, discri­
minates vehicles of less than 12 tonnes due to an alleged
tax
facto discriminatory effect of a mineral oil
de
reduction. Hence,
in the view of German authorities,
the reimbursement can not discriminate vehicles of less
than 12 tonnes as they are not subject of the new toll
system.

The German authorities note that the measure does not
contradict Directive 1999/62/EC since the administrative
obstacles
are not
for non-German road hauliers
considered to be higher than for German road hauliers.
According to German authorities, standardised forms will
be available in an appropriate number of EU languages
and the information requested will be mainly figures, so
that
foreign hauliers will have an easy access to the
reimbursement system. The administrative burden of
keeping vouchers up to one year corresponds to other
procedures such as the VAT-reimbursement. It can also
be shown that in many cases vouchers have to be kept
until the end of the year also for other reasons such as
company audits of national tax authorities. Therefore,
Germany concludes
system
does not create administrative obstacles or practical
burdens that would lead to a discrimination against
non-German road hauliers.

the reimbursement

that

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(59) With regard to the criticism of the TRS, such as the
insufficient number of OBUs which might have an
indirect impact on the aid measure itself, the German
authorities argue that the practical aspects of the toll
do not have any influence on the TRS.

(60)

The German authorities do not consider that Article 8(4)
of Directive 92/81/EEC is violated since the measure only
reduces the level of the toll rate and is not intended to
reduce excise duties on mineral oil as stipulated in this
Directive.

(61) As regards the effect of the measure on the environment,
Germany contradicts the argument that the aid measure
fuel and therefore
would favour the consumption of
environment.
would have negative
According to the German authorities, a simple calcu­
lation shows that an increase of fuel consumption with
a view to obtaining a higher reimbursement is against all
economic logic. Higher consumption would mean that
than necessary foreseen which
vehicles drive longer
would increase time and staff-costs.

effects on the

(62) As regards the toll measure, the German authorities first
of all note that all arguments related to it are not subject
to the current State aid procedure and should therefore
be kept outside the scope of this decision. In addition,
system has been
the
Germany declares
introduced once all the technical problems have been
solved in a way that discrimination on the grounds of
nationality or inappropriate hindrance of traffic flows has
been excluded.

that

toll

(63)

To summarise, the German authorities reply to the main
arguments presented by third parties as follows:

— First, the toll

The

hauliers.

between

connection

is not discriminatory as the decision
whether to fill the tank within Germany or not is a
purely economic decision which will be taken by
German road hauliers as well as by non-German
road
toll
reduction on the one hand and the payment of
excise duties on the other hand is
reasonably
justified as heavy goods vehicles that use federal
motorways are now paying a double contribution
to infrastructure costs,
in the form of excise duties
on fuel and the toll. The TRS takes into account
infrastructure costs contributions already paid in
Germany and will avoid a double payment. The toll
respects Article 7(4) of Directive 1999/62/EC since
the toll does not discriminate against any road
haulier on the grounds of nationality.

— Secondly, the toll is not discriminatory just because it
is levied only on vehicles of at least 12 tonnes. The
threshold of 12 tonnes is reasonably founded and

the definition of vehicles

stipulated in
follows
Article 2(d) of Directive 1999/62/EC.
In addition,
the toll does not favour German road hauliers since
it cannot be shown that German road hauliers for
international transport are better off using of mixed
fleet of vehicles of below and above 12 tonnes in
comparison to non-German road hauliers allowing
them to partially compensate the toll burden within
the fleet of one company. The toll
is calculated in
such a way that it respects Article 7(9) of Directive
1999/62/EC since the weighted average toll is related
to the costs of constructing, operating and developing
the infrastructure network concerned.

— Thirdly, the new toll system will respect Article 7(5)
of Directive 1999/62/EC as a sufficient number of
OBUs, as well as other payment mechanisms (such
as terminals and the Internet) ensure that the toll is
collected in such a way that the free flow of traffic is
not hindered.

— Fourthly,

the

toll measure

violate
Article 9(2) of Directive 1999/62/EC, since it does
not prevent Member States from contributing to the
a
balanced development of
percentage of the amount of the toll.

transport networks

does

not

— Fifthly,

the German authorities note that

system will not
European model of
teeing
contradict recital 17 of Directive 1999/62/EC.

the toll
lead away from a harmonised
infrastructure charging guaran­
therefore not

interoperability

does

and

— Sixthly, German authorities note that the administra­
tive requirements for the classification of the emission
classes of
is not discriminatory
because it is limited to the necessary steps needed
in order to classify those vehicles.

foreign vehicles

— Finally, the German authorities also note that the toll
system does not violate any Treaty provision such as
Articles 28, 90, 92 and 97.

5. ASSESSMENT OF THE AID

5.1. Existence of aid under Article 87(1) of the EC
Treaty

(64) Article 87(1) of the EC Treaty says that ‘any aid granted
by a Member State or through State resources in any
form whatsoever which distorts or threatens to distort
competition by favouring certain undertakings or the
production of certain goods shall,
insofar as it affects
trade between Member States, be incompatible with the
common market’.

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Official Journal of the European Union

L 50/39

(65)

The Commission considers that the toll reimbursement,
which can be requested from the Federal Office for
Goods Transport — part of the national administration
— concerns State funds and implies a loss of State
individual
resources. The measure by itself provides
road transport undertakings with a selective advantage
over competitors as they get a compensation for the
charges for the use of infrastructure they are supposed
to bear themselves. The TRS cannot be considered as a
general measure as it is only applicable to undertakings
using vehicles of not less than 12 tonnes which are liable
for the toll and only if and to the extent that they can
provide evidence that they have paid excise duties in
Germany. Furthermore, since access to the road haulage
market has been opened up to Community operators
completely (39),
it can be assumed that public financial
aid, which favours certain undertakings performing road
transport and, more generally, road transport over other
modes, will affect trade between Member States. Any
such financial aid therefore distorts or
to
distort competition and affects trade between Member
States.

threatens

(66) On the basis of these considerations the Commission
finds that the notified TRS constitutes aid pursuant to
Article 87(1) of the EC Treaty.

5.2. Compatibility of the aid

5.2.1. Availability of relevant legal basis

(67) At the moment the Commission initiated the procedure
laid down in Article 88(2) of the EC Treaty, it was not in
the possession of any legal texts concerning the intro­
duction of the TRS. However, on 22 August 2003, the
legal basis.
German authorities provided the relevant
Therefore this lack of information no longer exists.

5.2.2. General comments about the toll

(68)

The introduction of a distance-based user charge, reco­
vering the costs of the infrastructure, is one of the key
elements of the EC common transport policy:

(69)

— First, the proposed introduction of the toll is in line
with the Commission’s thinking on a more cost-
related pricing structure in the European transport
policy White Paper (40). The White Paper contains a
chapter concerning the gradual charging for the use
of the infrastructure. The European Union is currently
made up of a Europe of tolls, where users have to

(39) Council Regulation (EEC) No 881/92 of 26 March 1992 on access
in the carriage of goods by road within the
to the market
Community to or
from the territory of a Member State or
passing across the territory of one or more Member States (OJ
L 95, 9.4.1992, p. 1) and Council Regulation (EEC) No 3118/93
of 25 October 1993 laying down the conditions under which non-
resident carriers may operate national road haulage services within a
Member State (OJ L 279, 12.11.1993, p. 1).
time

(40) European transport policy

decide, European

for 2010:

to

Commission 2001, Table 3, p. 72.

pay on toll motorways, a Europe of ‘eurovignettes’
paid by heavy goods vehicles throughout the entire
network, and a Europe where no charges are applied
at all. This situation can be improved.

— Secondly, the replacement of user charges currently
levied on heavy goods vehicles with a toll system
could lead to a fairer share of infrastructure costs
because a considerable proportion of
the cost of
motorway construction, maintenance and operation
is due to heavy goods vehicles.

— Thirdly, the toll will serve one of the objectives of the
the EC
Community as mentioned in Article 2 of
a ‘high level of
to promote
Treaty, which is
protection and improvement of the quality of the
environment’.

change

— Finally, considering the overall measure, it seems that
the same applies to the potential advantages to be
derived from shifting goods traffic from road to
more environmentally friendly modes of transport.
The
from a time-based motorway user
charge to a mileage-based charge means that short
distances become cheaper and long distances more
expensive. This result does not only meet the need
to make users bear a fairer share of the infrastructure
costs, it also takes into account the fact that only on
longer routes less polluting modes of transport (rail
and waterway) offer an alternative to road transport.

the

infrastructure,

The German Federal Government aims to make users
bear a more realistic share of road costs. The stated
aim of the toll system is to make the users pay the
and the price of 15
price of
cents/km is estimated by Germany as the amount that
‘fully covers the costs of construction, development and
operation of the relevant infrastructure in the sense of
Directive 1999/62/EC (Eurovignette)’. But this goes hand
in hand with putting a greater burden on the road
haulage industry.
the EUR 460 million
collected in Germany under the Eurovignette system (in
2002), the hauliers will have to pay infrastructure costs
of approximately EUR 3,4 billion. Although, according to
the notified proposal of
the German authorities, a
compensation of EUR 600 million could be granted,
the total charge for road hauliers is still
increasing as
this compensation would cover only 17 % of the total
toll charges of EUR 3,4 billion.

Instead of

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5.2.3. Non-application

of Article 19(1)

of Directive

(75)

2003/96/EC (41)

(70)

The Commission notes that the purchase of fuel and the
payment of excise duties by qualifying vehicles
in
Germany offer a mechanism to calculate the reimbur­
sement of the toll.

products

In view of the above, the Commission comes to the
conclusion that Article 19(1) of Directive 2003/96/EC
the taxation of
on the Community Framework for
energy
replaces
Article 8(4) of Directive 92/81/EEC is not applicable (44).
As a consequence, the German authorities do not have to
notify the aid measure under the framework of
the
procedure laid down in Article 19(1) of Directive
2003/96/EC.

electricity which

and

(71) A clear legal distinction exists between the levy of excise
duties and the levy of toll for heavy goods vehicles for
the use of infrastructure. The two systems are based on
different legal acts like the Directives on excise duties
(92/12/EEC (42)
and the Directive
1999/62/EC (Eurovignette).

and 2003/96/EC)

(72)

(73)

(74)

The Court has recognised the difference between toll and
other levies for the use of roads on the one hand, and
taxes on the other hand. According to the case-law toll is
not qualified as a tax, but as a payment for using a
service. The same reasoning goes for other levies for
the use of roads due to the direct
link between the
levy and the infrastructure that can be used (43). On the
basis of this case-law and taking into consideration that
the excise duty only serves as a reference to calculate the
there is a clear distinction
reimbursement and that
between the financial
flows of excise duties on one
side and the toll payment and toll reimbursement on
the other, the Commission considers that the current
reimbursement of
the
same time as a reimbursement of
the excise duties.
Such a qualification would lead to the situation in
two
which the
different
frameworks which would violate the
legal
principle of legal certainty.

the toll cannot be qualified at

reimbursement would

fall under

is

that

the reimbursement

linked to the
The fact
payments of excise duties cannot change the legal quali­
fication of
the reimbursement, especially taking into
account that the two financial flows are not linked. If
this were to be the case, any new condition that should
for example the limitation of the reimbur­
be added,
sement to a certain type of truck, would risk changing
the legal qualification and, as a consequence, the legal
framework, which would violate the principle of legal
certainty.

It should also be pointed out that there is no fiscal link
between the toll rate and the excise duty on gas oil. They
the
have each one their own source (the use of
motorway on the one hand, the consumption of the
mineral oil on the other hand). The revenues of the
toll will fully be used to cover the costs of construction,
exploitation and improvement of
the infrastructure,
contrary to the revenues on the excise duty on gas oil.
is generally deducted from the
The reimbursement
amount of toll payment due, or,
it is refunded using
the resources collected on the basis of the tolls.

(41) Former Article 8(4) of Directive 92/81/EEC.
(42) OJ L 76, 23.3.1992, p. 1.
(43) Case C-276/97 Commission v France [2000] ECR I-6251, paragraph
36 of the judgment and the Opinion of Advocate General Alber,
together with the case-law cited there. Agreements EU-Bulgaria and
Hungary, C-211/01, point 50 (not yet published).

5.2.4. Assessment of
market

the

compatibility with the

common

(76) According to Article 73 of the EC Treaty, aids which
meet the needs of coordination of land transport are
compatible with the Treaty.

(77)

implements Article 73 of

Council Regulation (EEC) No 1107/70 of 4 June 1970
on the granting of aid for transport by rail, road and
inland waterway (45)
the
Treaty and provides for specific exemptions for aid,
which are deemed to meet the needs of coordination
of inland transport. In particular, Article 3(1)(b) of Regu­
lation (EEC) No 1107/70 stipulates that Member States
may, until the entry into force of common rules on the
allocation of infrastructure cost, provide aid to under­
takings that have to bear expenditure relating to the
infrastructure used by them while other undertakings
are not subject to a like burden.

(78) According to the Commission’s practice in the handling
of State aid cases, three requirements must be fulfilled, so
that the aid meets the needs of coordination of transport
within the meaning of Article 73 of the EC Treaty (46)
and the requirements laid down in Article 3(1)(b) of
Regulation (EEC) No 1107/70:

(a)

the aid is necessary to enable the realisation of the
measure in the interest of
the Community and
respects the principle of proportionality;

(44) Article 19(1) stipulates that the Council, acting unanimously on a
proposal from the Commission, may authorise any Member State to
introduce further exemptions or
reductions for specific policy
considerations.

(45) OJ L 130, 15.6.1970, p. 1.
(46) See Commission Decision of 18 December 2002, N 287/02 —
Denmark (OJ C 34, 13.2.2003, p. 7), Commission Decision of
19 September 2001, N 500/01 — United Kingdom, Network
Infrastructure Managers (OJ C 333,
Grants to Licensed Heavy Rail
28.11.2001, p. 7); Commission Decision of 20 June 2001, N
219/01 — Austria (OJ C 224, 1.9.2001, p. 2); Commission
Decision of 22 December 1999, N 617/98 — The Netherlands
(OJ C 71, 11.3.2000, p. 7); Commission Decision of
(Utrecht)
8 December 1999, N 412/98 — Italy (Marche)
(OJ C 55,
26.2.2000, p. 11); Commission Decision of 8 July 1999, N
121/99 — Austria (OJ C 245, 28.8.1999, p. 2); Commission
Decision of 21 April 1999, N 588/98 — Denmark (OJ C 166,
12.6.1999, p. 6); See also Commission proposal for a Regulation of the
European Parliament and of the Council concerning the granting of aid for
the
road and inland waterway
rail,
(COM(2000) 5 final) of 26 July 2000).

coordination of

transport by

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(b) access to the aid is granted on non-discriminatory

terms;

(c)

the aid does not give rise to a distortion of compe­
tition to an extent contrary to the common interest.

N o n - d i s c r i m i n a t i o n

the
Regarding the principle of non-discrimination,
Commission considers
that all aid is by definition
selective. If a measure is not qualified as selective it is
not an aid measure in the sense of Article 87 of the EC
Treaty. If the measure has been qualified as an aid, the
Commission should assess the compatibility with the
common market. Case-law and Commission practice
have always clearly distinguished between this selectivity
inherent to all aid, which means a disadvantage for some
operators in relation to others operating in a Member
State, and possible discriminations based directly or
indirectly on nationality or on the establishment in the
in question (47). The
is not
latter
Member State
compatible with Community
law and cannot be
approved under State aid rules.

(82)

(83)

existence

is settled case-law that discrimination consists in
It
particular in treating like cases differently,
involving a
disadvantage for some operators in relation to others,
without that difference in treatment being justified by
differences.
the
However,
established in a
certain territory are in a different position vis-à-vis the
authority from undertakings established within that
it cannot be said that any mechanism that
territory,
makes access to aid more difficult to them violates the
principle of non-discrimination (48).

since undertakings not

substantial, objective

of

(79)

(80)

residence. The measure does not

accessible for all road hauliers, irrespective of nationality
or
any
thresholds, e.g. a minimum amount of toll charge or a
minimum transport volume. In addition, there is no obli­
gation to buy fuel in Germany nor is there any restriction
to do so. Therefore, the Commission considers that there
is no direct discrimination on the basis of nationality.

foresee

Though there is no direct discrimination, the question
arises whether this link leads to a de facto, indirect dis­
crimination on the basis of nationality. A difference in
treatment exists between road hauliers who fill their tank
in Germany and road hauliers who fill their tank in
another Member State. This difference is caused by the
link between the toll reimbursement and the payment of
excise duties in Germany.

If this difference in treatment produces different effects
on German hauliers, on the one hand, and hauliers from
other Member States, on the other hand, favouring the
former over the latter, and does not reflect an objective
difference in the respective situations, it would imply a
the principle of non-discrimination. The
violation of
question is therefore whether the link between the toll
reimbursement and the payment of excise duties can be
justified by objective differences. In order to answer this
question, the Commission will start examining how this
link will work out in practise and which hauliers will
benefit from it.

(81)

In the case at hand, the TRS provides for offsetting the
toll only on presentation of German refuelling receipts
and vouchers in order to proof that excise duties have
been paid in Germany. In this condition the Commission
doesn’t see any violation of the principle of territoriality
mentioned in recital 20 of Directive 1999/62/EC. The
TRS imposes the same conditions on all hauliers and is

(47) Case C-156/98 Germany v Commission [2000] ECR I-6857, para­

graphs 86 and 87.

(84)

Located in the core of Europe, the German motorways
are already highly frequented by non-German road
hauliers. While
in 1998 22,1 % of heavy goods
vehicles of German motorways were non-German, this
share has risen to an estimated 25,5 % in 2004. EU-25
vehicles represent almost 92 % of the non-German heavy
goods vehicles on the German motorways (49).

(48) Case C-351/98 Spain v Commission [2002] ECR I-8031, paragraph
‘It must first of all be pointed out that the Commission’s
57:
argument that there is discrimination against undertakings from
other Member States, since the mechanism makes access to aid
is without foundation. […]. A measure
more difficult for them,
to support investment adopted by a public authority can by defi­
nition apply only in respect of
is
responsible
criticised for not
and the
extending the benefit of the measure to undertakings not estab­
lished in its territory, since such undertakings are in a wholly
different position vis-à-vis the authority from undertakings estab­
lished within the territory. That statement does not, however, mean
that such a measure of support cannot be classified as “aid within
the meaning of Article 92(1) of the Treaty if it fulfils the conditions
laid down by that provision.”’

the territory for which it

authority cannot be

(85)

Since fuel prices are currently higher in Germany than in
most neighbouring countries,
this encourages neither
German nor non-German hauliers engaged in inter­
national transports to fill their tank in Germany.

(49) Source: Report on the economic effects on road hauliers of the
German reimbursement
system for
heavy goods vehicles, 21.4.2005, MVV Consultants and Engineers.

system linked to the toll

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Official Journal of the European Union

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(86)

The decision whether to fill the tank within Germany or
not is an economic decision which will be taken under
the same conditions by both German road hauliers as
non-German road hauliers. Within the limits of
their
itinerary, all road hauliers will fill their tank where they
can see an economic benefit. After introduction of the
TRS, the road hauliers that will fill their tank outside
Germany would not benefit
from the compensation,
but might have an economic advantage to do so. They
will use the possibility of benefiting from the TRS if the
price per km resulting from German fuel plus a reduced
toll rate is lower than the price per km resulting from
fuel outside Germany plus the full toll rate.

(89)

from the TRS as a result of

In view of the foregoing, the Commission foresees that,
taken into account the current level of fuel prices in the
Member States, a very large portion of non-German
vehicle kilometres (51) on the German motorways will
the link
not benefit
between the TRS and the payment of excise duties in
Germany. Such a percentage will obviously be lower in
the case of German hauliers. In addition, occasional users
of German motorways, particularly from other Member
States, may refrain from requesting the TRS because of
administrative burdens and would be further penalised in
comparison with regular users, particularly German users.

(87)

In practise the benefits of the TRS will mainly concern
two groups of hauliers (relative benefits as the toll will
increase to an average of 15 cents/km) (50):

(90)

— Those hauliers engaged only in national transport and
economically forced to use the motorways. These
hauliers are predominantly of the German nationality,
though this market segment is open to all EU-15
Member States (cabotage) and will be open to the
new Member States after expiry of transitional regu­
lations.

— All hauliers, German or non-German, who perform
international transports from, to or through countries
with a relatively high fuel price level. Such a situation
would concern,
in particular, hauliers established in
France, Belgium and the Netherlands, a group of
countries, which perform 32 % of all non-German
vehicle kilometres on the German motorways.

(91)

(88)

The German authorities have themselves admitted in
their observations that a percentage close to 20 % of
German road hauliers, presumably those that perform
their activities mainly on the national market and partic­
ularly in the central regions of Germany, do not take
advantage of lower fuel prices in other countries. On
the contrary, hauliers established in other Member
States will generally buy fuel not only and not predomi­
nantly in Germany, but in other Member States, notably
in those with lower fuel prices, even if they perform part
of their activity in Germany or even on the German local
market, availing themselves of the freedom to perform
cabotage transport.

(50) See also Report on the economic effects on road hauliers of the
German reimbursement system linked to the toll system for heavy
goods vehicles, 21.4.2005, MVV Consultants and Engineers.

This being the case, the Commission stresses that a road
haulier using a German motorway and buying his fuel
outside Germany is using the German road infrastructure
in exactly the same way as a road haulier who fills up his
tank in Germany. It can therefore be concluded that the
link between the toll reimbursement and the amount of
the excise duties paid in Germany resulting in different
levels of toll cannot be justified by differences in the use
of German motorways. As a result of this link, some
hauliers, which are predominantly non-German as
demonstrated in paragraphs 86 and 87, will have to
pay more toll than others while transporting the same
heavy goods the same distance on the same motorway.
In addition, the system in question will favour national
transport, largely performed by hauliers that buy fuel in
Germany over
States,
performed by hauliers that will more often buy fuel in
other Member States, which is another form of discrimi­
nation forbidden by Community law (52).

between Member

transport

in Germany. However,

Linking the toll reimbursement to the amount of the
excise duties paid in Germany may indicate that
the
system is conceived as a compensation for a high level
the
of excise duties on fuel
Commission practice and Court jurisprudence are very
the difference in the tax burden
clear on this point:
cannot by itself (53)
justify the granting of State aid.
Granting an aid cannot be justified when the aid is
meant to compensate some national operators for their
comparative disadvantage resulting from regulatory or
fiscal differences compared to other Member States.
State aid is not a suitable instrument for levelling out,
in favour of certain operators, differences in levels of
taxation between the Member States. As a consequence,

(51) The indicator for the use of

the motorway by vehicles is the

transport performance measured in vehicle kilometres

(52) Case C-381/93 Commission v France [1994] ECR I-5145, paragraphs
[2003] ECR I-1291,

17 to 21, and Case C-92/01 Stylianakis
paragraph 25.

(53) See footnote 25. See also Case C-298/00 P Italy v Commission
[2004] ECR I-4087, paragraphs 61 and 62, Case C-382/99, Ne-
therlands v Commission [2002] ECR I-5163, paragraphs 60 to 66, C-
6/97 Italy v Commission [1999] ECR I-2981, paragraph 22.

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Official Journal of the European Union

L 50/43

the fact that the level of excise duties is high in Germany
— and thus diesel prices — in Germany and a need is
perceived to alleviate an alleged competitive disadvantage
for German hauliers, does not justify the link between
the TRS and the payment of excise duties. In addition,
petrol prices are also high in other Member States and
hauliers from those Member States, that for geographical
and operative reasons are less likely to buy fuel
in
Germany, will not benefit
from the compensation to
the same extent as German hauliers.

(95)

In the light of these arguments, the Commission comes
to the conclusion that the aid measure does not respect
the principle of non-discrimination as the measure results
in a de facto discrimination against foreign road hauliers
for this reason already, must be considered as
and,
incompatibile with the common market.

(96)

In addition, the aid measure does not respect Article 7(4)
of Directive 1999/62/EC either, which stipulates that toll
and user charges may not discriminate, directly or
indirectly, on the grounds of nationality of the haulier
or the origin or destination of the vehicle.

(92)

the destination of

The fact that the German authorities argue that currently
50 % of the revenues of the excise duties is ring-fenced
for infrastructure and the TRS is needed to avoid that
hauliers will pay twice for the infrastructure does not
prejudice to this conclusion. First, the final destination
of tax revenues is not relevant in order to assess whether
there is discrimination between German hauliers and
hauliers from other Member States. The difference in
the tax burden cannot justify the granting of aid,
irre­
spective of
tax revenues. Secondly,
only 50 % of
the revenues are ring-fenced for infra­
structure and of this 50 %, a large share will be used
the
to fund the infrastructure costs of
German road network for which no toll
is required.
Therefore, it cannot be held that — as the German au-
thorities argue — hauliers that both pay toll and excise
duties are paying a double contribution to the costs of
infrastructure,
are only
marginally used to fund infrastructure for which toll is
required. Consequently, the fact that the revenues of the
excise duties are partially being used to fund infra­
structure cannot justify the link between the toll reim­
bursement and the payment of excise duties either.

excise duties

the rest of

revenues

as

(97)

(98)

(93)

In addition, it has to be noted that the character of a toll
and an excise duty is different. Toll is a payment for the
use of a service, and an excise duty is a tax. As already
pointed out in Chapter 5.2.3 of this Decision, the events
giving rise to a perception are different:
the use of
highway in the case of a toll, and the consumption of
the mineral oil in the case of excise duties.

This provision is only a particular expression of a general
principle of Community law and,
in particular, of
transport law, namely the prohibition of any discrimi­
nation based on nationality, place of establishment or
the starting point or destination the transport. This
principle
the
Community judges (54), including in the specific case of
road tolls (55).

consistently

applied

been

has

by

In accordance with a well-established case-law, it is clear
from the general scheme of the Treaty that a procedure
concerning the compatibility of State aid with the
common market must never produce a result which is
contrary to the specific provisions of the Treaty (56). The
those aspects of aid which
Court has also held that
contravene specific provisions of the Treaty other than
Articles 87 and 88 may be so indissolubly linked to the
object of the aid that it is impossible to evaluate them
separately (57). For
the
measure at stake would violate the principle of non-dis­
crimination and,
in particular, Article 7(4) of Directive
1999/62/EC. This violation is inherent in the mechanism
of the TRS and therefore is indissolubly linked to it. This
the
constitutes
Commission to declare the aid incompatible with the
common market.

the reasons explained above,

that must

another

reason

lead

(94)

In view of the above, the Commission does not see an
objective justification for linking a reduction in toll fees
to the amount of excise duties paid on German territory.
As a consequence, there is no objective justification that
the difference in treatment between
could support
hauliers that
their tank in Germany and hauliers
that fill their tank outside Germany will be subjected to
since they are objectively in the same situation.

fill

(99)

The Commission reminds the German authorities that, in
case they consider the overall charges for road hauliers in
Germany too high, they could modify, within the limits
of existing harmonisation measures on Community level,
the vehicle tax or the level of excise duties. These are
horizontal and general measures that would in principle
result neither in a direct nor in a de facto discrimination.

(54) Case C-18/93 Corsica Ferries Italia [1994] ECR I-1783, paragraph 35;

Stylianakis, paragraph 25.

(55) Commission v Austria, paragraphs 74 to 88 and 109 to 115.
(56) Case 73/79 Commission v Italy [1980] ECR 1533, paragraph 11.
(57) Case 74/76 Iannelli & Volpi v Meroni [1977] ECR 557.

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N e c e s s i t y a n d p r o p o r t i o n a l i t y

(100) The Commission considers that the necessity of the aid
has not been demonstrated. The German authorities
argue that the measure has to be seen in the light of
the transition actually being undertaken by the German
authorities from a tax-based motorway charge to a
mileage-based user charge. The Commission understands
the wish to introduce transitional measures in view of
road hauliers,
the total charges
the increase of
however notes that the level of the toll has been fixed
at a lower
i.e. at 12,6
cents/km instead of 15 cents/km. Refraining from the
intended increase of
the toll rate would be a more
straightforward way of compensating in a transitional
period than increasing the toll rate up to 15 cents/km
and at the same time, introducing the TRS and reimburse
2,6 cents/km. Moreover, the currently applicable lower
rate equally applies to all road hauliers that use German
therefore non-discriminatory. The
motorways and is
intended reimbursement would change this balance,
which is not necessary to achieve the intended goal.

than initially planned,

level

for

(101)

for

card

credit

company

In addition, the German authorities have not provided
arguments in favour of the TRS which would counter­
balance the higher administrative burden,
road
hauliers, of the technically complicated introduction of
the TRS as compared to simply maintaining the lower
filling station
toll rate. Road hauliers should present
receipts or
from
Germany, each stating the registration number of the
concerned vehicle, and request for a toll reimbursement
within the deadline each year. Such a burden is likely to
be particularly heavy for occasional users of German
motorways, particularly from other Member States. The
Commission reminds the German authorities that they
the toll at any time,
could increase the level of
the Directive
provided
1999/62/EC are taken into account, at
the moment
they consider it necessary.

provisions

vouchers

that

the

of

(102)

In view of these arguments, the Commission concludes
that the aid measure does not respect the principle of
necessity either, which again constitutes a sufficient
ground to declare it
incompatible with the common
market.

D i s t o r t i o n
t o t h e c o m m o n i n t e r e s t

c o m p e t i t i o n

o f

c o n t r a r y

(103)

In view of the foregoing, the Commission considers that
the last condition of Article 3(1)(b) of Regulation (EEC)

is not

the aid should not give rise to a
No 1107/70 that
distortion of competition to an extent contrary to the
common interest
fulfilled, either. As explained
above, the aid will unduly favour German hauliers over
their competitors from other Member States, which goes
against the correct functioning of the common transport
freedom to provide
market and the very principle of
transport.
aid must be
the
too,
this
declared incompatible with the common market.

reason,

For

the EC Treaty.

(104) Finally, it should be noted that the German authorities
have not invoked any compatibility grounds other than
the
Article 73 of
in
Commission confirms
paragraph 57 of the decision to open the formal inves­
tigation procedure: the aid cannot be declared compatible
in accordance with Article 87(3)(a),
(b) and (c), nor
indeed by virtue of any other derogation.

its preliminary assessment

In any event,

6. CONCLUSION

the TRS is an aid
(105) The Commission concludes that
conditions of
the
fulfil
measure which does not
Article 73 and Article 3(1)(b) of Regulation (EEC) No
1107/70 and is
incompatible with the
common market,

therefore

HAS ADOPTED THIS DECISION:

Article 1

The aid which the Federal Republic of Germany is planning to
implement and which is based on Section 3, paragraph 2 of
Article 1 of the Law on the imposition of mileage-based charges
for the use of motorways by heavy goods vehicles is incom­
patible with the common market.

Article 2

This decision is addressed to the Federal Republic of Germany.

Done at Brussels, 25 January 2006.

For the Commission

Jacques BARROT
Vice-President