Failed infrastructure charge: Federal government has to pay 243 million euros in damages due to car toll

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Toll bridge on a German motorway

Photo: Jochen Tack / IMAGO

The failed car toll has an expensive aftermath for the taxpayer. The FDP-led Federal Ministry of Transport and the operating company Autoticket, which belongs to the ticket dealer Eventim and the Austrian technology company Kapsch, have agreed to the settlement proposal of a private arbitration court. Accordingly, the federal government must pay 243 million euros in damages. The budget committee of the Bundestag waved through the agreement this Wednesday in a secret meeting, according to SPIEGEL information.

In doing so, the parties are ending a legal dispute that has been going on for years, which was ignited after the end of the car toll. On 18 June 2019, the European Court of Justice ruled that the so-called infrastructure charge is not compatible with EU law. The CSU's prestige project was designed in such a way that German motorists would not be burdened more heavily by the planned toll than before. Although the operating company was supposed to levy the levy on all users of the motorways, the German vehicle owners would have been relieved by a reduction in vehicle tax to the same extent, i.e. by the amount of the toll.

In December 2018, the then Minister of Transport, Andreas Scheuer (CSU), agreed on an operator contract with Autoticket. Subsequently, the construction of the system began. From 2020, the infrastructure charge should be levied. These plans were thwarted by the European Court of Justice.

Shortly after the ruling, the Ministry of Transport terminated the contracts with Autoticket. The operators then asserted claims in the amount of 560 million euros. The legal reappraisal of the affair took place behind closed doors, the parties argued before a private arbitration court. In March 2022, an interim arbitration award was announced, which in principle granted the operators of the court a claim for damages. Since then, it has been about the amount of payments.

In addition to damages, there are also lawyer and consultant fees

Federal Transport Minister Volker Wissing (FDP) has inherited the aftermath of the toll debacle from his predecessor. Weeks ago, he was informed of the arbitral tribunal's settlement proposal. Since then, he has consulted with his ministeriales about whether the proposal should be objected to. But in the end, insiders tell SPIEGEL, the assessment prevailed that this would only result in further, high legal fees, without any prospect of further reducing the amount. "The arbitral tribunal would probably be rather annoyed if she had to deal with the matter again," says a high-ranking employee from the Ministry of Transport.

Now they want to put an end to the payment, at least for the main proceedings. In addition to the 243 million euros in damages that have now been agreed, there are also legal and consultant costs incurred by the federal government in recent years:

• By the end of October 2022, they amounted to 15.48 million euros for the procedure for collecting the car toll before the arbitral tribunal alone.

• A further 8.8 million euros was spent on parallel arbitration proceedings dealing with the contract for the development of an automatic control system.

• In addition, the costs for litigation before administrative courts are less than two million euros, which adds up to around 26 million euros.

On the part of the operating companies, one could also have imagined another variant for an amicable settlement between the state and toll companies. The previous work would have been used in the development of a toll infrastructure for a future road toll system: "We would have preferred a modified implementation of the car toll as a climate tax for German and non-resident vehicle owners to a contentious dispute," says Michael Blum, Managing Director of Autoticket. "Nevertheless, we welcome the termination of the proceedings."

Transport experts believe that in the not so long time there will be a levy on motorists. However, this should not be regulated as a lump sum with an annual amount, but depending on the actual distance driven. For example, the truck toll is already regulated with control bridges on the motorways. A similar system for cars is already indicated if there are predominantly electric cars on Germany's roads. This is because some of their owners do not co-finance road construction because they do not pay mineral oil tax.

Taxpayers face even more costs

For these considerations alone, it was a mistake on the part of the former Minister of Transport Scheuer not to approach the toll operators and adopt the technology they had developed to date. Instead, Andreas Scheuer decided to dismiss the companies for "poor performance", among other things, in order to avoid paying damages.

It was already clear with the interim arbitration award of March 2022 that the CSU politician had failed with this strategy. The arbitrators rejected the poor performance as a reason for dismissal, as can be seen from an ad-hoc announcement by the operating companies at the time. The fact that the companies involved nevertheless agreed to the settlement in the amount of 243 million euros is also due to the fact that Kapsch and Eventim wanted to draw a line under the expensive disputes.

However, the disputes over Wednesday's decision by the Budget Committee are not yet completely over. The parallel arbitration proceedings, which concern the development of the automatic control system for the submission, continue according to SPIEGEL information. The taxpayer is therefore threatened with further costs due to the car toll messed up by Scheuer.