For whom the road tolls?

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The European commission included provisions on road charging for cars in its revision of the Eurovignette Directive last year. The current directive only covers trucks. [Virginia Department of Transportation / Flickr]

The European Commission’s proposal to phase-out of car vignettes is fully in line with the treaties and the EU executive has every right to table legislation to that effect, argues Samuel Kenny.

Samuel Kenny is freight policy officer at sustainable transport group, Transport & Environment (T&E).

In 2016 Europe’s transport chief, Commissioner Violeta Bulc, became embroiled in a battle between Austria and Germany. At the centre of the dispute was Germany’s plan to introduce the much discussed PKW-Maut, which Austria saw as being discriminatory against non-Germans. This led the commissioner to include provisions on road charging for cars in its revision of the Eurovignette Directive last year – the current directive only covers trucks.

The core of her plan is that from the early 2020s onwards, European car tolling systems would have to comply with a series of common EU rules. The most contentious of the proposed rules is that from 2028 car tolling can no longer be based on time-based sticker schemes (vignettes).

The FIA, which represents automobile clubs in Brussels, is deeply unhappy about the Commission’s proposal. To support its campaign against extending the eurovignette to cars (which it seems to see as the “thin end of the wedge”), it commissioned a legal analysis from Tübingen University, Germany, which argues the Commission is “encroaching on member states’ sovereignty” and is basically illegal.

That’s a big claim and one that touches a sensitive nerve. But is it also true?

The core of the study’s argument is that the Commission’s plan to phase out stickers is a case of “competence creep” which goes against the subsidiarity principle, that it is unnecessary since the EU treaties already have provisions on non-discrimination, and that there’s no added value in a common EU framework for cars.

When it comes to developing new laws, EU action is indeed limited by the treaties and, in particular, the “subsidiarity principle” which limits the EU’s ability to act to situations where national action alone cannot achieve the desired objectives. So has the Commission overstepped its authority here?

Fifteen EU countries will be forced to change road toll laws under draft rules

Eight EU countries will be forced to change how they charge passenger cars that use public roads by 2023 and nine countries will need to change their systems for trucks, according to draft European Commission plans.

Firstly it is hard to argue that cars are not a cross-border or European issue when the clear intention of every vignette system is to “make foreigners pay”. If governments simply wanted their own citizens to contribute to road maintenance, fuel or vehicle taxes would be more than adequate. So the fact that vignettes are explicitly targeted at foreigners – overwhelmingly made up of other EU nationals – makes them a European, and not a purely national, issue.

Secondly, it is clear that the way vignette systems are designed is almost always discriminatory. Short-duration vignettes are disproportionately more expensive than an annual vignette, the idea being to punish infrequent (foreign) users and reward frequent (national) users. This explains why the German scheme met with fierce opposition from most neighbouring countries (and motorist associations). As the Tübingen professors rightly highlight, direct or indirect discrimination against foreign road users through tolls or vignettes is already prohibited under Articles 18 and 20 of the EU treaty.

Bizarrely though, that leads them to the conclusion that the Commission should not take action. We would argue the opposite. The proposed phase-out of vignettes is fully in line with the treaties and the Commission has every right to propose legislation that ensures the treaties are respected.

The FIA also argues the Commission has no right to mandate tolls. But that’s besides the point because the Commission hasn’t done that. What it says is that if countries want to charge foreign drivers, over time, they’ll need to stop using discriminatory vignettes and transition to a system that is inherently non-discriminatory, i.e. you pay per kilometer travelled which is in line with the “polluter pays” principle, itself enshrined in the EU treaty.

The final argument is that there is no added value in having an EU framework for passenger car road charging. But the history of truck tolling tells a different story. There the EU initially failed to adopt a proper common framework for tolls. The result is a series of different tolling regimes with different rules, incompatible technologies and contradictory market signals. Trucking companies have been begging the Commission for years to intervene (which the it finally did with the 2017 European Electronic Road Toll Service and Eurovignette amendments for trucks). So surely there is value in the EU trying to prevent a similarly confusing situation for passenger cars.

The more you look at the FIA’s legal case, the thinner it becomes. There is nothing in the treaties – or indeed in the Tübingen University analysis – that makes the Commission proposal illegal. The FIA may dislike the proposal. And perhaps member states and MEPs will agree it is not opportune. That happens all the time. But that, of course, has nothing to do with it being an illegal proposal.