Road user charging and European borders

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Belgium is adopting a distance based charge for HGVs across its entire road network. Wouter van Haaften looks at the challenges of such a unilateral approach

From the first of January 2016 a Kilometre Charge in Belgium for all vehicles with a maximum mass of 3.5 tonnes or more will be introduced on all roads. Not just on motorways or main roads, like for instance in Germany, or as foreseen in France, but every road in Belgium. And because the only way to pay for the charge is via an on-board-unit in the vehicle, consequently from that date each vehicle should have such an OBU while driving through Belgium.

That makes sense. If you cannot pay without the on-board-unit you must have it when you have to pay while driving on charged roads. However, while the charge will be introduced on all roads, only the motorways and some main roads (Eurovignette+ network) will be actually charged with a tariff per kilometre higher than zero.

All other roads are ‘potentially’ charged, but for the time being with a points, and will require a guarantee of approximately 100 euros – to be reimbursed when the OBU is returned in good order. The result is that before entering Belgium with a truck, you will first have to invest 100 euros in an OBU, even if you are not actually going to drive any charged roads. It seems that here the impact of not having the legal scrutiny that comes with the establishment of a formal law shows.

Let’s take an example to illustrate the impact of the measure in practice. A regional transport company that serves customers in the border areas of Belgium as of 2016 will be forced to obtain an OBU, at the cost of 100 euros, in its border crossing vehicles, even if they will never drive on roads that are actually charged.

Many legal issues pop up in this scenario. How does the obligatory payment of the 100 euros guarantee impinge on the free movements of goods in the EU? How does a refusal to install an OBU in a vehicle that will never drive on an actually charged road relate to the enforcement instruments of the kilometre charge itself? And how will the authorities in the neighbouring countries respond as they become aware of the extra and useless burden that will be imposed upon their transport companies?

Perhaps all these questions will appear to be answered once the draft legislation on the Belgian Kilometre Charge is published. But until then my legal mind will not be at ease.

In 1999 a European Directive was defined to introduce a set of rules on distance-related tolls and time-based user charges HGVs above 3.5 tons.

These rules stipulate that the cost of constructing, operating and developing infrastructure can be leveraged through tolls and “vignettes” to road users.

The European Commission reckons the most important framework conditions are:

*Tolls must be levied according to the distance travelled and the type of vehicle and its emission class;

*The directive does not permit tolls and vignettes at the same time for the use of a single road section. Only as an exception tolls can be levied for the use of bridges, tunnels and mountain passes on networks where vignettes are applied;

*National tolls and vignettes must be non-discriminatory, excessive rebates on tolls are forbidden;

*Charging schemes should cause as little hindrance as possible to the free flow of traffic, avoiding mandatory checks at the EU’s internal borders;

*Maximum average tolls must be set in relation to the costs of constructing, operating and developing the infrastructure concerned.

*Tolls may also include an “external cost charge” which reflect the cost of air and of noise pollution.

*Revenue should be used to develop the trans-European network.

Switzerland introduced the kilometre charge in 2001, a performance-based “Heavy Vehicle Fee” calculated on distance, weight and emission class. Four years later, Austria followed and Germany introduced its LKW-Maut for trucks over 12 tonnes in 2005 which is not state-owned as in Switzerland and Austria. The Czech Republic, Slovakia and Poland have also implemented similar pricing systems.

Member States are allowed to co-operate, and Belgium, Denmark, Luxembourg, the Netherlands and Sweden have a common system of user charges for HGVs above 12 tonnes called the “Eurovignette” system. This allows hauliers to use motorways of any of the participating countries for a given period once the fee is paid.

Other roads are ‘potentially’ charged… with a zero rate. This leads to a situation where in fact you also need an OBU in case you don’t have to rate. This leads to a situation where in fact you also need an OBU in case you don’t have to pay. How come?

The Belgian Regions have decided on an obligatory OBU for all goods vehicles over 3.5 tonnes, regardless of whether they drive on roads they have to pay for or not.

The OBU is available at service Wouter F. van Haaften is a senior researcher at the University of Amsterdam’s Faculty of Law.

Article taken from the July 2013 issue of RUC Magazine