HGV-Toll - How do I get refunded?
> November 2020

The European Court of Justice (CJEU) has decided in its judgment of 28 october 2020 that the calculation of the HGV-toll in Germany was incorrect in such cases at least in which the toll had been levied for the calculation period 2007 to 2012 on the basis of the 2007 road cost report.

In the preliminary ruling of the higher administrative court (OVG) for the federal state of North Rhine-Westphalia in Münster, the CJEU ruled in the case C / 321 / 19 that only infrastructure costs should be taken into account when setting tolls, i.e. expenditure on the construction, operation, maintenance and development of the transport infrastructure network concerned. Still, the costs of police activities (traffic police), which were also taken into account, are the responsibility of the Federal Republic of Germany, as it hereby exercises sovereign powers and does not merely acts as road infrastructure manager. Therefore, the costs of traffic police can not be regarded as operating costs within the meaning of the Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures.

This means that the relevant legal basis for collecting this part of the tolls is (materially) ineffective from the moment it entered into force.

But how do I get my refund? Is there anything I must be aware of?
In principle, the claim for reimbursement of the partly unlawfully levied toll is based on section 4 para 2 of the Federal Highway Toll Act (BFStrMG) in conjunction with section 21 of the Federal Fee Act (BGebG). It is regulated in § 21 BGebG that wrongly raised fees (toll is a fee) are to be refunded immediately.

There is, however, a limitation regarding the unjustly levied fees. Such unjustly levied fees are only be refunded as long as their assesment is still appealable. As a rule, the latter is not the case, unless one has already lodged an objection to every toll charge notice in the past.

Moreover, one must know that the German administrative law means only the formal wrongfulness with its sentence "wrongly raised fees", but not the material inefficacy, as determided by the EuGH. As long as the decision on costs on which the payment has been based is valid, there is a legal reason for the payment even if the decision itself is materially unlawful. Then the materially unlawful fees are "rightly charged".

However, the legal ground may still lapse even after the decision on costs has become final if the decision is revoked or must be revoked. Therefore, there is always a claim to reimbursement of costs even after the decision on costs has become final, if, at the same time, the party liable to pay the costs is entitled to have the decision altered, such as by reopening the procedure under section 51 of the Administrative Procedure Act (VwVfG) or to have the procedure withdrawn (section 48 VwVfG) or revoked (section 49 VwVfG) (cf. BVerwG decision of 7 July 2004 - 6 C 24/03, Beck RS 2004, 25337).

Pursuant to section 21 para 2 BGebG, the statute of limitations applies if the claim for reimbursement has not been asserted by the end of the third calendar year following the year in which the claim arose. In the present cases, however, the claim for reimbursement does not arise until the incorrect toll calculation has been amended, e.g. by taking up the procedure under section 51 VwVfG.

Therefore, do not rely on merely requesting the reimbursement of the toll fees, but do at the same time also apply for the proceedure’s resumption according to section 51 and, alternatively, for its withdrawal (section 48 VwVfG) or its revocation (section 49 VwVfG). The Federal Office for Goods Transport in Cologne is responsible for all procedures.