ELVIS Demands Refund of 380 Million Euros in German Toll Fees

The European Freight Alliance of International Forwarders AG (ELVIS) is demanding the return of overpaid truck tolls amounting to millions from the Federal Office for Goods Transport (BAG) as part of a model procedure. Around 160 ELVIS partners have already joined the proceedings. During the relevant period from January 1, 2017, to October 27, 2020, these companies paid a total of 380 million euros in truck tolls – and according to the most conservative estimates, overpaid by between three and seven percent. The model procedure was initiated this month, and a multi-year duration is expected.

(Alzenau) “The fact that the BAG refuses to refund overpaid fees despite a ruling of unconstitutionality by the highest court borders on highway robbery and is unacceptable. Therefore, in the interest of our partners, we have decided to assert the claims in a model procedure, if necessary, even in court,” says Nikolja Grabowski, board member of ELVIS AG.

The background is a decision by the European Court of Justice (ECJ) from October of last year (Judgment of October 28, 2020, Case No. C-321/19). According to this ruling, only infrastructure costs may be considered when setting toll fees, specifically those for the construction, operation, maintenance, and expansion of the relevant transport network. However, the federal government had also charged transport and logistics companies for traffic police costs. The ECJ deems this unlawful. Police activities fall under the responsibility of the state, which exercises sovereign powers and does not merely act as an operator of road infrastructure. Therefore, these costs cannot be considered as operating expenses within the meaning of the directive on the collection of fees, ruled the ECJ.

Numerous ELVIS partners subsequently submitted requests for a partial refund of the truck tolls, just like many other companies. However, it became apparent that the BAG is not willing to provide a refund and cites protection of trust: Before the ECJ ruling, it could not have been known that the toll was over-calculated. The federal government had always sent the road cost assessments, on which the toll rates are based, to the European Commission from a certain point onward. No objections had ever been raised from there.

Narrowly Limited Exceptions in EU Law

In this regard, attorney Prof. Dr. Moritz Lorenz from the law firm Arnecke Sibeth Dabelstein, who represents ELVIS in the proceedings, states: “Such protection of trust in favor of a member state is granted in EU law only in narrowly limited exceptional cases. And those do not exist here.”

For this reason, ELVIS now wants to have the legal opinion of the BAG reviewed in court. To prevent all ELVIS partners from having to sue the federal office individually, the alliance has initiated a model procedure. A request from one company will be highlighted as a representative case. The BAG will initially decide on this, and if rejected, then the administrative court will take over. The outcome of the court proceedings will subsequently be applied to all other participants by virtue of a model procedure agreement.

Other Affected Companies Can Join

So far, around 160 ELVIS partners who paid approximately 380 million euros in truck tolls during the relevant period have joined the model procedure, which is expected to last several years. The most conservative estimates suggest a refund of three to seven percent. Grabowski: “There is still an opportunity for affected companies to join the proceedings.”

Photo: © ELVIS