A Polish freight forwarder brought an action before the Cologne Administrative Court for the repayment of overpaid truck toll on the grounds that the truck toll violated the prohibition of cost overruns provided for in European law (Article 7 (9) of Directive 1999/62/EC as amended by Directive 2006/38/EC). According to this, the calculation of tolls may, simply put, be based exclusively on the underlying infrastructure costs, in particular for the operation of the transport infrastructure network. The plaintiff argued in this respect that the costs for the traffic police may not be taken into account as costs for the operation of the traffic route network. The Cologne Administrative Court did not follow this reasoning and dismissed the claim.
The Higher Administrative Court of North Rhine-Westphalia, which dealt with the matter on appeal, then referred the issue to the European Court of Justice (ECJ) for a preliminary ruling. The ECJ finally ruled in its judgment of October 28, 2020 (Case C-321/19) that police activities are the responsibility of the state and that the costs of traffic police could therefore not be regarded as costs of operation in the aforementioned sense.
The decision finally confirmed that the calculation of the truck toll over the past years was unlawful and that the companies affected may claim for compensation on the merits. However, the exact amount of the overcharges as well as the period for which the overpaid amounts can be reclaimed are still unclear. The Higher Administrative Court of North Rhine-Westphalia will have to rule on this, at least in some aspects. The court will also have to deal with the question of whether other components of the truck toll are unlawful
and can therefore be reclaimed.