A ruling by the European Court of Justice (ECJ) on October 28, 2020 has caught the attention of the entire freight forwarding industry: the German truck toll has been too high for years and freight forwarders can claim money back.
What is it about?
The toll rates are determined on the basis of a complex calculation in a value cost report and published as an annex to the Federal Trunk Road Toll Act (BFStrMG). A Polish haulage company had filed a complaint against the calculation of the toll rates in German administrative court proceedings and demanded a refund of tolls that it had paid in 2010 and 2011. In principle, the following applies: the determination of toll charges must be based on the costs of the road. In the relevant period, however, traffic police costs accounted for 3.8% of the toll rate. The competent court of appeal (OVG Münster, 9 A 118/16) asked the ECJ in the context of a so-called referral procedure whether the calculation including the costs of the traffic police is compatible with EU law.
What did the ECJ decide?
According to the ECJ ruling, the inclusion of traffic police costs in the calculation of toll rates is unlawful. As these costs have been and are still included in the German toll rates, it can be assumed that the toll has been calculated too high for years.
The ECJ has ruled that even minor errors (such as 3.8% in the specific case) lead to the toll being unlawful.
It has also been decided that it is not sufficient if the costs were calculated correctly as a result (e.g. because other calculation items were underestimated in the forecast).
Finally, the ECJ has ruled that toll payers should be able to invoke the directive directly.
The ECJ rejected an application by the Federal Republic of Germany to limit the temporal effect to the future. This means that overpaid tolls can be reclaimed and the calculation does not only have to be corrected for future tolls.
What claims are there now?
Toll payers should be able to claim a refund for overpaid tolls.
The following questions arise:
1. from what period can a refund be considered, for what period is the statute of limitations to be assumed?
The question of the statute of limitations is generally governed by German law. Claims for reimbursement are time-barred if they are not asserted by the end of the third calendar year following the year in which the claim for reimbursement arises. As the toll is usually debited automatically by Toll Collect, the refund claim arises at the time of debiting. This means that tolls debited before 2017 can no longer be reclaimed due to the statute of limitations. Tolls debited in 2017 must be reclaimed by the end of 2020. This also applies if a toll was only debited at the beginning of 2017 for a journey made at the end of 2016.
For the sake of completeness, the following should be added: Although it is not likely, it is also not completely out of the question that the courts will come to the conclusion that claims dating back more than three years are not yet time-barred for various reasons, e.g. European law considerations regarding the effective enforcement of EU law. Freight forwarders could then possibly even demand reimbursement of tolls paid back to 2005! However, this would have to be clarified by the courts in the event of a dispute. If the courts were to rule in favor of toll payers in the future, repayment claims for the years 2005 to 2016 would not yet be time-barred and could be asserted by toll payers at a later date.
2. can a haulier reclaim the entire toll or only the part attributable to the costs of the traffic police? How much is this part?
The ECJ and EU law do not require the entire toll to be repaid if an item has been wrongly included in the calculation as a cost item. Only the part that was wrongly included in the toll rate would have to be refunded. In the years 2010-2011, which was the subject of the specific court case, this was 3.8%. However, as the toll rates were recalculated for subsequent years, the portion to be refunded may be higher or lower. Only an analysis of the valuation reports can clarify the specific percentages. With regard to the wrongly included costs of the traffic police, it will probably be 3 to 4% of the toll paid per year.
Although it is not likely, it cannot be ruled out from the outset on the basis of German law that the entire toll could even be considered unlawful due to the calculation error. However, this would also have to be clarified by the courts.
Practical recommendation: Urgent need for action on tolls from 2017!
Due to the impending statute of limitations, toll charges that were debited in 2017 must be reclaimed this year by 31.12.2020! As a precaution, it is advisable to reclaim all toll fees paid in 2017. However, you can only expect a refund of 3 to 4%.
For tolls paid after 2017, the statute of limitations for reimbursement does not expire at the end of 2020. If claims for reimbursement of tolls paid before 2017 are not already time-barred, they will not expire acutely at the end of this year. There is therefore currently only an acute need for action for tolls that were debited in 2017.
3. how and to whom should the refund be claimed?
The correct procedure is an application for reimbursement to the Federal Office for Goods Transport (www.bag.bund.de) in accordance with Section 4 (2) sentence 2 BFStrMG.
The application must be made in writing, i.e. by signed letter. A simple e-mail is not sufficient.
The application must be received by the authority by 31.12.2020 at the latest due to the impending statute of limitations. It is therefore essential that you use a method of delivery with proof of receipt (e.g. courier or registered letter/return receipt).
The application must be submitted in German.
Proof of payment of the toll should be enclosed with the application. The corresponding statements have been sent to toll payers by Toll Collect.
Advice and support
Several service providers and associations offer their support with reimbursement, e.g. the Bundesverband Güterverkehr und Logistik (BGL) e.V. for its members if they have registered before December 4, 2020. Many lawyers are also competing for mandates in this area. However, there should not yet be any need for legal advice in the official reimbursement procedure, as this is not initially about legal issues, but about meeting a deadline and listing tolls paid; toll payers can easily do this themselves.
The author and your usual contacts in the traNsport & logistics competence team will be happy to answer any questions you may have!
Gisela Hebrant, LL.M.
hebrant@tigges.legal
+49 211 8687 185