On 23 February 2017, the Constitutional Court rejected an application for annulment of the Decree of the Flemish Region of 3 July 2015 introducing the kilometre charge.
On 1 April 2016, the kilometre charging system for vehicles with a maximum permitted total weight over 3.5 tonnes entered into force in Belgium. In Flanders, the kilometre charge was introduced by the Decree of the Flemish Region of 3 July 2015 "introducing the kilometre charge and abandoning the Eurovignette and amending the Flemish Tax Code of 13 December 2013 in that respect" (the "Flemish Kilometre Charge Decree"). Similar regulations were issued by the Walloon and Brussels Capital Regions, in order to introduce a kilometre charge on some roads in their territory. These regional regulations implemented, among other things, the cooperation agreement of 31 January 2014 ("Cooperation Agreement"), in which some principles of the kilometre chare were determined.
In February 2016, the non-profit association Sigma lodged an application for annulment of the Flemish Kilometre Charge Decree. Sigma represents the interests of importers and specialists in materials in the field of civil engineering, construction and handling of goods. The enterprises which are member of the association use trucks falling within the scope of the kilometre charge. The non-profit association Union for General Belgian Cleaning, whose members also use vehicles subject to the kilometre charge, intervened within the procedure, also with the intention of obtaining annulment of the Decree (both associations are jointly referred to below as the "requesting parties").
Arguments of the requesting parties
The requesting parties essentially presented the following arguments:
- violation of the principle of territoriality regarding the distribution of powers between the three regions, because of the "interregional recovery assistance" they granted each other regarding the administrative penalties;
- violation of the principle of legality in fiscal matters, since the Flemish Government was authorised by the Decree to adjust the list of roads for which the kilometre charge is due, making it possible for the Government (instead of the decretal legislator) to modify essential elements of the tax; and
- violation of the principle of equality, because the definition of the vehicles subject to the charge does not make a distinction based on whether or not the vehicles designed for the transporting of goods are actually used for the transporting of goods, and because it does not make a distinction regarding the type of goods being transported.
The ruling of the Constitutional Court
The Constitutional Court rejected each of these arguments.
Regarding the territorial powers, the Constitutional Court finds that the Flemish Kilometre Charge Decree does not provide for the administrative sanctioning of infringements outside the territory of the Flemish Region. The simple authorisation to recover administrative penalties imposed for infringements of the Flemish Kilometre Charge Decree on the territory of another region and by personnel of another region does not place the measure outside the territory of the Flemish Region. In addition, the Cooperation Agreement provides for assistance between regions regarding the recovery of administrative penalties. Pursuant thereto, each region granted the other regions the authorisation to recover administrative penalties on the territory of another region. In addition, each region vested its own personnel with the mission to recover administrative penalties due to another region in the context of a road inspection. This allowed the regions to grant each other mutual recovery assistance, without infringing their respective territorial powers or autonomy.
Regarding the principle of legality in fiscal matters, the Court reiterates that any delegation by the decretal legislator of its powers to determine the essential elements of the tax is, in principle, unconstitutional. However, the Court holds that the authorisation given to the Flemish Government to adjust the list of roads subject to the charge only allows adjustment of the list established by the decretal legislator following a new name or category given to a road subject to the charge. Thus, the Flemish Government cannot broaden or limit the list of roads subject to the charge by adding or removing roads. According to the Court, it is sufficiently guaranteed that the kilometre charge or an exoneration from the charge cannot be introduced without the decretal legislator's consent.
Regarding the principle of equality, the Constitutional Court reiterates that this principle also prohibits identical treatment of categories of people who are in an essentially different situation, without reasonable justification. The Court then rejected the criticism of the requesting parties, because they were in a situation that did not essentially differ from that of other people subject to the charge:
- on the one hand, the use of the roads by heavy trucks – regardless of whether they are loaded and regardless of the type of goods they transport – does in any case give rise to costs which the kilometre charge is intended to absorb (e.g. costs in relation to traffic congestion and traffic infrastructure, the environment and traffic safety);
- on the other hand, the Constitutional Court accepted that the recovery of the charge would entail serious difficulties and costs, should the distinction sought by the requesting parties actually be made. In that case, not only would the number of kilometres driven need to be determined, but also whether the vehicle is loaded and, if so, with which goods.
And for the future…
The Constitutional Court ruled that the challenged parts of the Flemish Kilometre Charge Decree were not unconstitutional on the basis of the requesting parties' arguments.
In the meantime, the period for lodging a petition for annulment with the Constitutional Court (six months after publication in the Belgian Official Gazette) already expired some time ago for the Flemish Decree, as well as for the Walloon Decree and the Brussels Ordinance introducing the kilometre charge. A future complete annulment of the regional law regarding the kilometre charge is therefore excluded.