Request for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany) lodged on 18 April 2019 — BY and CZ v Federal Republic of Germany

(Case C-321/19)

Language of the case: German

Referring court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

Parties to the main proceedings

Applicants: BY, CZ

Defendant: Federal Republic of Germany

Questions referred

Can an individual toll-payer rely, before national courts, on compliance with the provisions regarding the calculation of the toll under Article 7(9) and Article 7a(1) and (2) of Directive 1999/62/EC as amended by Directive 2006/38/EC 1 (regardless of the arrangements in Article 7a(3) in conjunction with Annex III thereto), if, in the statutory determination of tolls, the Member State did not fully comply with those provisions or incorrectly implemented them to the detriment of the toll-payer?

If Question 1 is to be answered in the affirmative:

(a)    Can traffic police costs also be treated as costs of operating the infrastructure network within the meaning of the second sentence of Article 7(9) of Directive 1999/62/EC as amended by Directive 2006/38/EC?

(b)    Does an overrun of the infrastructure costs which can be taken into account in the weighted average toll in the range of

(aa)    up to 3.8%, in particular when account is taken of costs which cannot in principle be taken into account,

(bb)    up to 6%

lead to a breach of the cost overrun prohibition under Article 7(9) of Directive 1999/62/EC as amended by Directive 2006/38/EC, with the result that national law is, to that extent, not applicable?

If Question 2(b) is to be answered in the affirmative:

(a)    Is the judgment of the Court of Justice of 26 September 2000 (C-205/98, 2 paragraph 138) to be understood as meaning that a substantial cost overrun can ultimately no longer be offset by an ex post calculation of costs filed in judicial proceedings, which is intended to prove that the fixed toll rate ultimately does not actually exceed the costs which can be taken into account?

(b)    If Question 3(a) is to be answered in the negative:

Is an ex post calculation of costs after the end of the calculation period to be based entirely on the actual costs and the actual toll revenue, that is to say, not on the assumptions made in this regard in the original predictive calculation?

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1 OJ 2006 L 15, p. 8.

2 OJ 2000 C 335, p. 10.