17 April 2019

The new Directive (EU) 2019/520 of the European Parliament and of the Council of 19 March 2019 "on the interoperability of electronic road toll systems and facilitating cross-border exchange of information on the failure to pay road fees in the Union" enters into force on 18 April 2019.

The Directive, commonly called the "EETS Directive" (European Electronic Tolling Service Directive), needs to be transposed by the Member States of the European Union (EU) by 19 October 2021 at the latest and repeals the current EETS Directive (2004/52/EC) with effect from that date.

The Directive primarily amends and clarifies the provisions with respect to:

  • the rights and obligations of EETS providers (the service providers who provide electronic tolling services for the EETS users, who are the persons subject to the charge), inter alia by easing the rules regarding access to EETS domains (the toll domains) to provide electronic toll services and by specifying the rules regarding the remuneration to which EETS providers are entitled; and
  • the obligations of toll chargers, in particular with regard to more transparency vis-à-vis EETS providers and EETS users.

In addition, the Directive introduces a system for exchanging information between Member States to allow for identification of the person and the vehicle subject to the charge in case of failure to pay the toll.

EETS providers: access to toll domains and remuneration

Currently, EETS providers have to service all electronic toll domains in the EU. This is not realistic in practice and is also very costly, while the users – who are ultimately paying for this – do not benefit from full domain coverage.

The new Directive allows for more limited domain coverage.

EETS providers will be obliged to conclude contracts covering all EETS domains in a given Member State within 24 months following the conclusion of the first contract in that Member State, and to conclude contracts covering all EETS domains on the territories of at least four Member States within 36 months of their registration. Furthermore, EETS providers will have to make information publicly available about the EETS domains they service and their contracting policy towards EETS users.

The current EETS Directive (2004/52/EC) and EETS Decision (2009/750/EC) do not contain any separate provisions with respect to the remuneration to which EETS providers are entitled. The remuneration is only implicitly mentioned in the provision with respect to the conciliation body which is competent to verify whether the contractual conditions imposed by a toll charger on EETS providers are non-discriminatory and fairly reflect the costs and risks of the parties. The same goes for Annex IV to the EETS Decision with respect to the content of the EETS domain statements; these must include details of the commercial conditions, which are the remuneration conditions.

The new Directive explicitly specifies in a separate provision the right of an EETS provider to be remunerated by the toll charger. The following principles have to be taken into account:

  • the methodology for defining the remuneration of the EETS providers must be transparent, non-discriminatory and identical for all EETS providers accredited for a given EETS domain, and it must be published as part of the commercial conditions in the EETS domain statement;
  • the methodology for calculating the remuneration of EETS providers follows the same structure as that for calculating remuneration in respect of comparable services provided by the main service provider; and
  • the level  of remuneration paid to EETS providers may differ from that for  the main service provider provided that the difference is justified by: (1) the cost of specific requirements and obligations of the main service provider that are not imposed on the EETS providers; and (2) the need to deduct from the EETS providers' remuneration the fixed charges imposed by the toll charger based on the costs for the toll charger of providing, operating and maintaining an EETS-compliant system in its toll domain, including the costs of accreditation, where such costs are not included in the toll.

Toll chargers: obligations regarding transparency vis-à-vis EETS users and EETS providers

Besides the aforementioned transparency with respect to the remuneration of EETS providers, all rebates or discounts on tolls offered by a Member State or a toll charger to users of on-board equipment are also required to be transparent and to be publicly announced. Furthermore, they must be available on the same terms to clients of EETS providers.

The EETS domain statement and any subsequent amendments must be published with sufficient notice to allow accredited interested EETS providers to adapt their interoperability constituents to the (new) specifications and to allow for (re)accreditation of interested EETS providers by no later than one month before the operational launch of the (modified) system.

Decisions of a Member State or a toll charger concerning the assessment of conformity to specifications or suitability for use of interoperability constituents must set out in detail the reasons on which they are based. Notification must be sent as soon as possible to the manufacturer or EETS provider concerned or their authorised representatives, together with information on the remedies available and the time limits allowed for the exercise of such remedies.

Procedure for exchange of data between Member States

Each Member State must designate a national contact point with the power to conduct automated searches on data relating to vehicles and data relating to the owners or holders of vehicles in order to allow for their identification.

The exchange of data between Member States may only take place between national contact points and is carried out using the European Vehicle and Driving Licence Information System (Eucaris) software application and amended versions of this software.

The Member State in whose territory there was a failure to pay a road fee is only permitted to use the data obtained in order to establish who is liable for the failure to pay that fee. The Member State decides whether or not to initiate follow-up proceedings in relation to the failure to pay and must inform the identified owner or holder of the vehicle suspected of failing to pay the road fee in this respect, also mentioning the legal consequences of such non-payment within the territory of the Member State in which there was a failure to pay a road fee.

Miscellaneous

The provisions with respect to the technology to be used (satellite positioning, mobile communication and 5.8 GHz microwave technology) and regarding the conciliation body remain unchanged in essence. EETS providers are, however, permitted, until 31 December 2027, to provide users of light-duty vehicles with on-board equipment suitable for use with 5.8 GHz microwave technology only – without prejudice, however, to the right of Member States to introduce electronic road toll systems for light-duty vehicles based on satellite positioning or mobile communication.

The provisions with respect to the EETS domain statements are also essentially unchanged. The Commission will, however, adopt implementing acts by 19 October 2019 at the latest to lay down the minimum content of the EETS domain statement, including:

  • the provisions with respect to the fixed charges imposed by the toll charger based on the costs for the toll charger of providing, operating and maintaining an EETS compliant system in its toll domain (where such costs are not included in the toll), the costs of accreditation and the (bank) guarantee that a EETS provider needs to give;
  • the procedural conditions, including commercial conditions, referring to the remuneration of the EETS provider;
  • the procedure for accreditation of EETS providers; and
  • the toll context data.