Both Flanders and Germany are considering tolling systems applicable to private vehicles using the Flemish respectively German roads. Both plans, moreover, seem to have one thing in common: the tolls need to apply to all private vehicles. Those people, however, who pay Flemish and German road taxes, are entitled to a reduction in their taxes in return for the tolls paid. The European Commission has now launched an infringement case against Germany to address this issue. It holds that such a road charging system constitutes indirect discrimination on grounds of nationality. This ITEM article will explain the legal background in greater detail.
Discrimination on grounds of nationality is prohibited under article 18 of the Treaty on the functioning of the European Union. Indirect discrimination is also caught by this prohibition: legally, equal treatment exists, but in fact an unlawful distinction arises nevertheless. This is the case here: every private car owner is to pay the tolls, but the driver who is subject to road taxes in Germany and Flanders is entitled to a reduction. Hence, for the most part, particularly Germans and Belgians will not suffer (extra) from the tolls whereas foreign users, such as Dutch people living in the border regions or persons who happen to be passing by, will have to pay.
That is not to say that it is by definition inadmissible: indirect discrimination can be justified “only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions”. Similarly, the Court of Justice ruled in the Gottwald case that Austria in principle had acted admissibly by exempting disabled persons resident in Austria from the generally applicable toll system whereas such an exemption did not exist for disabled persons who were resident in other EU Member States.
Austria claimed that the measure was intended to promote the mobility and integration of disabled persons, as they have fewer opportunities to use the public transport. The exemption from the tolls, moreover, was granted to all disabled people that needed to be on Austrian territory (for instance because of work) on a regular basis (rather than exceptionally). Within that context, the Court considered the indirect discrimination admissible.
The case will hence focus in particular on the issue of proportionality of the measure which heavily depends on the model of the toll collection. Take, for instance, the German model. The underlying idea for the measure seems to be the, in itself, reasonable “user pays” principle. The system, however, whereby foreign users pay for short-term use (e.g. a 10-day vignette) is inconsistent with the system whereby residents pay by means of a “flat fee” (road taxes minus the price of an annual vignette). For, on the one hand, there is a risk that a one-time tourist who passes through Germany will have to buy a “10-day vignette” – and hence will pay for a lot more than he uses. On the other hand, a “flat fee” for residents (the remaining road taxes after deduction of the tolls) could lead to the situation whereby the greater the intensity with which they use the roads, the less they, in essence, pay per kilometre.
In Flanders, it was even suggested that with the introduction of tolls for foreigners, the road taxes for residents could be abolished altogether: this does no credit at all to the “the user pays” principle.
Both the plans of Germany and Flanders, hence, may be questionable from a legal perspective. As long as there is no proportionality between the actual use and the tolls, such a system will be contrary to EU law – at least it is argued here. More generally, one may wonder whether we should work with co-existing national toll systems at all: indeed, it seems reasonable to have the Dutch pay for the use of Flemish roads – but then the same should apply to the Flemish who come to the Netherlands. In that context, it is worth considering a European toll system, for which plans are already being made tentatively.
 S. Dölcken, ‘Vrij verkeer, tegen betaling’, De Limburger of 18th May 2016.
 IP/15/5200, ‘Commission launches infringement case on the introduction by Germany of a new road charging scheme for private vehicles ("PKW-Maut")’, available at: http://europa.eu/rapid/press-release_IP-15-5200_en.htm.
 Case C-103/08, Gottwald, ECLI:EU:C:2009:597, § 30.
 Case C-103/08, Gottwald, ECLI:EU:C:2009:597.
 M. Breitinger, ‘So funktioniert die Pkw-Maut’, Zeit 27th March 2015, http://www.zeit.de/mobilitaet/2015-03/pkw-maut-infrastrukturabgabe.
 De Standaard, ‘ANWB: “Tol heffen? Slecht plan, minister Weyts”’, 16th May 2016.
 J. Fioretti, ‘EU-wide toll could end road spat with Germany – transport chief’, Reuters 30th January 2016: http://uk.reuters.com/article/uk-eu-transportation-idUKKBN0L325B20150130 .
By: Alexander Hoogenboom