Judgment of the Court (First Chamber) of 28 October 2020 (request for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — BY, CZ v Bundesrepublik Deutschland

(Case C-321/19) (1)

(Reference for a preliminary ruling - Directive 1999/62/EC - Directive 2006/38/EC - Charging of heavy goods vehicles for the use of certain infrastructures - Article 7(9) - Article 7a(1) and (2) - Tolls - Principle of the recovery of infrastructure costs - Infrastructure costs - Operating costs - Costs related to traffic police - Cost overrun - Direct effect - Ex post justification of an excessive toll rate - Limitation of the temporal effects of the judgment)

(2020/C 433/13)

Language of the case: German

Referring court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

Parties to the main proceedings

Applicants: BY, CZ

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

Article 7(9) of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures, as amended by Directive 2006/38/EC of the Parliament and of the Council of 17 May 2006, must be interpreted as meaning that costs related to traffic police do not fall within the concept of ‘costs of operating’ within the meaning of that provision.

Article 7(9) of Directive 1999/62, as amended by Directive 2006/38, must be interpreted as precluding the weighted average tolls from exceeding the infrastructure costs of the infrastructure network concerned by 3,8 % or by 6 % as a result of what are not insignificant calculation errors or because costs that do not fall within the concept of ‘infrastructure costs’ within the meaning of that provision have been taken into account.

An individual may directly rely, before national courts, on the obligation to take into account only the infrastructure costs referred to in Article 7(9) of Directive 1999/62, as amended by Directive 2006/38, that is imposed by that provision and by Article 7a(1) and (2) thereof, against a Member State where that Member State has failed to comply with that obligation or has failed to transpose it correctly.

Directive 1999/62, as amended by Directive 2006/38, read in the light of paragraph 138 of the judgment of 26 September 2000, Commission v Austria (C-205/98, EU:C:2000:493), must be interpreted as precluding an excessive toll rate from being justified ex post by a new calculation of the infrastructure costs that is produced in the context of judicial proceedings.

(1) OJ C 220, 1.7.2019.