Explanatory Memorandum to COM(2017)280 - Interoperability of electronic road toll systems and facilitating cross-border exchange of information on the failure to pay road fees in the Union (recast)

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dossier COM(2017)280 - Interoperability of electronic road toll systems and facilitating cross-border exchange of information on the failure to pay ...
source COM(2017)280 EN
date 31-05-2017


1. CONTEXTOFTHEPROPOSAL

• Reasons for and objectives of the proposal

Electronic toll collection systems have been deployed at national, regional or local level in 20 Member States and the number of systems is increasing constantly. The vast majority require road users to install special equipment (‘on-board units’ – OBUs) in their vehicles. While a few offer cross-border interoperability, most do not. This results in costs and burdens for users, who must equip their vehicles with multiple OBUs to be able to drive unhindered in different countries. The costs are estimated at EUR 334 million a year currently and are expected to fall to just below EUR 300 million a year by 2025 (with no new action at EU level).

The lack of cross-border interoperability also means costs for authorities, which must procure and service redundant OBUs that work nationally but cannot be used abroad. In just one national system where vehicles’ positions are established using satellite positioning,1 the one-off cost of procuring OBUs amounts to EUR 120 million and servicing costs to EUR 14.5 million per year.

To address these issues, a Directive on the interoperability of electronic road toll systems was adopted in 2004.2 A 2009 Commission Decision setting out how interoperability should be achieved in practice3 provided that specialised ‘European electronic toll service’ (EETS) providers would offer road users OBUs compatible with all electronic toll collection systems in the EU.

The objectives of the legislation remain largely unattained. Some cross-border interoperability has been achieved, but in Croatia, the Czech Republic, Germany, Greece, Hungary,4 Ireland,5 Italy, Poland, Slovakia, Slovenia and the United Kingdom, it is still the case that only national OBUs can be used to pay tolls.

Two main reasons for this have been identified:

– EETS providers face considerable barriers to entry, such as:

• discriminatory treatment by authorities (including protection of incumbents);

• long and changing acceptance procedures; and

• technical specificities in local systems that do not comply with established standards.

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The fact that current legislation does not set out sufficiently clearly the obligations of toll chargers (which manage the tolling schemes) and Member States vis-à-vis EETS


Such systems are currently deployed in Belgium, Germany, Hungary and Slovakia, but other Member States

(currently Bulgaria and Sweden) are considering their introduction.

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Directive 2004/52/EC of the European Parliament and of the Council of 29 April 2004 on the interoperability


of electronic road toll systems in the Community (OJ L 166, 30.4.2004, p. 124–143).

4.

Commission Decision 2009/750/EC of 6 October 2009 on the definition of the European Electronic Toll


Service and its technical elements (OJ L 268, 13.10.2009, p. 11-29).

5.

In the Hungarian tolling system, different OBUs can be used, but they are nearly all national. No EETS


OBUs can be used as yet.

6.

In Ireland, there are many providers of OBUs, but they are all national. No cross-border interoperability is


available as yet.

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providers has allowed the barriers to remain in place without infringing EU law. It is therefore important that these obligations are specified in detail, so that EETS services can develop in parallel with national ones;

– The EETS legislation has imposed excessive requirements on EETS providers, such

as:

• an obligation to provide their services in all Member States within 24 months of their official registration. Reportedly, this has for a long time discouraged possible providers from registering, as they feared de-registration in their Member States of establishment if they failed to cover all EETS domains in time; and

• an obligation to serve the light-duty vehicle market with expensive satellite-based OBUs (although currently no electronic tolling systems for light-duty vehicles use satellite positioning). This makes it impossible for EETS providers to offer a competitive service to owners of light-duty vehicles. Satellite-based OBUs are still more expensive than the simple microwave OBUs used by national toll-service providers and their additional functionalities and computing power are redundant in the context of tolling light-duty vehicles. As long as satellite OBUs remain so expensive, it is important to provide for a period in which an EETS market for light-duty vehicles can be established by allowing EETS providers to equip their customers with simple OBUs that are compatible with existing tolling schemes.

Another problem relates to the difficulty of enforcing the payment of tolls by owners of vehicles registered in another Member State. A Member State that detects a tolling offence by means of automatic enforcement devices cannot identify the offender on the basis of the licence plate number when the vehicle is registered abroad. There is no legal basis at EU level for the exchange of vehicle registration data between Member States for the purpose of toll enforcement. The resulting revenue leakage for national, regional and local tolling schemes amounts to some EUR 300 million a year.

It is important to monitor the development of new services and applications, in particular that of cooperative Intelligent Transport Services (ITS), to exploit early on their potential for synergies with electronic tolling. It is also important that added-value services be allowed to be offered using the same technological platform (on-board equipment) as that used for electronic toll collection.

This proposal is part of the Regulatory Fitness Programme (REFIT), which focuses on reducing regulatory burden for companies.

• Consistency with existing policy provisions in the policy area

This initiative is a recast of an existing legal act (Directive 2004/52/EC). It aims to address the shortcomings of the existing legislation to make it more effective in achieving its objectives. It also proposes that the Directive should more precisely reflect the roles of different categories of EETS market players, which are currently defined only in Decision 2009/750/EC.

• Consistency with other Union policies

By improving the framework conditions on the electronic toll collection market, the initiative will help to complete the internal market and the digital single market. Also, by making electronic tolls easier to deploy and apply, it will facilitate the wider application of the ‘user pays’ and ‘polluter pays’ principles and thus contribute to achieving the goals of the Energy Union. In particular, it will enhance the effectiveness and efficiency of the proposal to revise Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures,6 which is presented in parallel to this initiative.

Lastly, the initiative proposes a legal framework for the exchange of vehicle registration data for the purpose of toll enforcement. This will contribute to achieving goals in the fields of justice and fundamental rights. On a more operational level, the relevant provisions are consistent with Directive (EU) 2015/413 facilitating the cross-border exchange of information on road-safety-related traffic offences.7 The relevant provisions also respect the applicable legislation on the protection of personal data.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for the proposal, as for the existing Directive (2004/52/EC), is Article 91 of the Treaty.

• Subsidiarity (for non-exclusive competence)

Unsatisfactory organisation of the electronic toll collection market in Member State A will negatively affect road users registered in Member State B, and vice versa. Individual Member States have no incentive to change things unless the interests of EU citizens and businesses are taken into account. This can be achieved only through action at EU level.

As regards the cross-border enforcement of tolls, a purely intergovernmental approach has shown its limitations, with only a few bilateral agreements having been signed between Member States. Only the EU can put in place an efficient system for exchanging information on toll offenders across all Member States.

• Proportionality

The new elements (compared with Directive 2004/52/EC) have been formulated following thorough pre-screening of the full list of policy measures suggested by stakeholders in the course of the public consultation. Proportionality was one of the main evaluation criteria. Less proportionate measures, in particular strict harmonisation of electronic tolling systems in the EU, were analysed in the impact assessment and rejected.

6 Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ L 187, 20.7.1999, p. 42).

7 Directive (EU) 2015/413 of the European Parliament and of the Council of 11 March 2015 facilitating cross-border exchange of information on road-safety-related traffic offences (OJ L 68, 13.3.2015, p. 9-25).

• Choice of instrument

The initiative substantially amends the provisions of Directive 2004/52/EC and adds many new provisions. In the interest of clarity, the proposal is therefore for a new (recast) Directive of the European Parliament and of the Council.

3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER

Contents

1.

CONSULTATIONS


ANDIMPACTASSESSMENTS

• Ex post evaluations/fitness checks of existing legislation

An ex post evaluation of Directive 2004/52/EC and Decision 2009/750/EC, set out in a single Commission staff working document,8 led to the following conclusions:

– The legislation has failed to deliver on most of its objectives: for toll chargers, the

costs of electronic tolling have hardly decreased and there is still no EETS for road users;

– Little progress has been made on the interoperability of electronic tolls and, with a

few exceptions, OBUs have not been integrated with other devices. Where there is interoperability, it is mainly at national level; only a few, limited cross-border agreements have been concluded. This relative lack of cross-border interoperability is due to the uncompetitive structure of many national markets, with authorities giving a privileged market position to a single tolling system operator, and to hurdles imposed by the EETS legislation itself (in particular, the obligation on EETS providers to be able to offer their services across the EU within 24 months). Crossborder interoperability is expensive and difficult to achieve because of significant differences in the application, in individual national tolling schemes, of the three technologies allowed by the EETS legislation. It is also hampered by the lack of effective provisions on the enforcement of tolls for vehicles registered in another Member State;

– In terms of its scope, the legislation is only partially relevant, as requiring all EETS

providers to cover all types of vehicle and all toll domains in Europe is considered excessive. It would be more efficient if providers were free to respond to the needs of their customers, rather than being obliged to impose on them a full but expensive and unnecessary service;

– The legislation could generate high EU added value, as voluntary cooperation

agreements between Member States have not contributed to substantial EETS coverage of the internal market. In any case, as few voluntary cooperation agreements have been concluded, this potential has been achieved only to a very small degree; and

– The Directive refers to undefined ‘operators’ as the entities responsible for the

provision of the EETS, while the Decision refers to well-defined ‘EETS providers’. There is therefore a degree of inconsistency between the two legal acts.

The results of the ex post evaluation were fed directly into the work to identify the problems which the present initiative aims to solve.

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Insert reference when published


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• Stakeholder consultations

When preparing the ex post evaluation and impact assessment, the Commission carried out five main consultation activities:

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1) An open public consultation on the basis of an online questionnaire


The consultation was open between 8 July and 2 October 2016 (12 weeks). The questionnaire contained questions mainly relevant for the general public, giving them a chance to express their views on electronic tolling without going into technical details. However, it did allow respondents to expand on their views in response to several open questions and to upload position papers and other documents.

For the Commission, the aim of the consultation was to sound out the general public on the broad policy choices (both in the current legislation and under consideration in the framework of the legislative review). While the relatively low number of responses puts a question mark over their representativeness, they expressed significant support for all broad policy choices in the current proposal;

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2) A call for written contributions publicly addressed to all stakeholders


Stakeholders were given the opportunity to submit contributions to the ex post evaluation and impact assessment exercises. A total of 22 relevant contributions were received: nine from tolling/motorway operators, nine from transport undertakings and four from public authorities;

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3) A restricted consultation of professional stakeholders on issues relating to the ex post evaluation


The targeted stakeholder consultation was launched on 26 June 2015 and was open for responses until 1 September 2015 (10 weeks). The main objective was to gather information and data to fill the Commission’s knowledge gaps in the preparation of the ex post evaluation.

Four separate questionnaires for different EETS stakeholder groups elicited a total of 22 responses. Due to the relatively low number of large stakeholders and the good organisation of the sector, it seems reasonable to assume that these are highly representative.

The quality of the contributions was mixed, but roughly half of the answers provided hard data and ample information, which the Commission fed into its staff working document. The other half contained mainly opinions and positions which helped the Commission to understand stakeholders’ views as to the effectiveness and efficiency of the current legislation;

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4) A restricted consultation of professional stakeholders on issues relating to the upcoming proposal on the revision of the EETS legislative framework


This targeted stakeholder consultation for the impact assessment on the revision of the EETS legislative framework was launched on 5 October 2016 and was open for responses until 13 November 2016 (six weeks).

The main objective was to gather information and data to fill the Commission’s knowledge gaps in the preparation of the ‘problem definition’ part of the impact assessment, but also to sound out the stakeholder community on the policy options and possible measures that the Commission could propose.

A total of 35 responses to the questionnaire were received, i.e. considerably more than in the similar consultation for the ex post evaluation. A number of excellent contributions contained in-depth analysis of the problems, with statistics/other data and recommendations for concrete policy solutions. The responses contributed considerably to strengthening the evidence base for the impact assessment and to the drafting of potential policy measures;

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5) Reactions to the evaluation roadmap and the inception impact assessment


Stakeholders were given the opportunity to react to the published evaluation roadmap and the inception impact assessment. None did so, however.

• Collection and use of expertise

Outside experts were commissioned to support the Commission in preparing the impact assessment report. An accompanying study was produced by Ricardo.9 The impact assessment also used the results of two previous studies prepared for the Commission in the framework of the ex post evaluation: State of the art of electronic tolling10 and Expert review of the EETS legislative acts.11

• Impact assessment

The initiative is supported by an impact assessment which first received a negative opinion from the Regulatory Scrutiny Board (RSB). RSB considered that the report did not explicitly set an objective of full interoperability of the electronic tolling systems in the EU and did not explain how the options contribute to interoperability. The options did also not explain sufficiently the real trade-offs and choices to the decision-makers and the report did not sufficiently reflect the views of stakeholders and in particular Member States.

The following changes were made to the report to address the recommendations of the RSB:

- The general objective was revised to explain that the initiative aims at offering each road user access to the level of interoperable tolling services corresponding to his/her needs and requests, which includes the option of full interoperability; furthermore, text was added under the first specific objective to explain that the latter is not only compatible with the objective of achieving three layers of interoperability (technical, procedural and contractual), but also includes the goal of fostering the establishment of a competitive structure of the EETS market.

- Two new sections, 5.1 and 5.2, present the results of the pre-screening of the full list of policy measures which have been discussed with the stakeholders in the framework of the public consultation; furthermore, one of the policy options was changed from a purely harmonisation option into one that also includes market measures.

- The views of the stakeholders, with a particular focus on the Member States, were thoroughly presented in sections 5.1 and 5.2.

Presented with the revised version of the Impact Assessment report, the RSB issued a second, positive opinion with reservations. The reservations of the RSB concerned three main aspects:

9 Insert link when published.

10 ec.europa.eu/transport/modes/road/road_charging

11 ec.europa.eu/transport/modes/road/studies/doc

- The RSB was of the opinion that the impact assessment report did not identify the core measures which are essential for the envisaged results, and did not assess their interdependences.

- The RSB also indicated that the report was still not clear on how the proposed set of measures would contribute to achieving the envisaged level of interoperability in the EU and what the risks attached to the preferred option would be.

Finally, the RSB pointed to the fact that the report did not explain why intermediate solutions between the most efficient and the most cost effective have not been considered.

The following additions were made to address the reservations:

– in table 9, detailed explanations as to which measures are essential and which are

not, and of the interdependence between measures;

– a new table 19 on effectiveness in achieving the general objective and the risks that

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option 2 would not actually achieve it; and


– new text in sections 5.1.4 and 5.4 to explain why intermediate solutions between the

most efficient and the most cost-effective were not considered.

The impact assessment examined three broad policy options:

1. addressing some problems through self-regulation and others through legislation;

2. addressing all problems through legislation, keeping the ‘market-based’ approach taken in Decision 2009/750/EC; and

3. addressing some problems through full technical and procedural harmonisation of electronic toll collection systems in the EU and others through legislation.

Option 2 is the preferred option. It was chosen on the basis of its high effectiveness and highest efficiency (costs versus benefits) in achieving the objectives, with overall positive side effects.

The expected benefits are as follows:

• for road users – cumulated savings of EUR 370 million (net present value – NPV) until 2025. Most of these will benefit road transport operators, i.e. predominantly SMEs;

• for road network managers – savings of EUR 48 million (NPV) until 2025 from not having to procure redundant OBUs, and additional toll revenues (EUR 150 million a year) thanks to better rules on cross-border enforcement; and

• for EETS providers – a reduction in regulatory burden linked to entering national markets (EUR 10 million NPV until 2025, for an expected 12 providers) and market expansion, with additional revenues of EUR 700 million a year.

The expected costs are as follows:12

• for road network managers – additional costs of adapting tolling systems to new requirements (cumulated EUR 174 million NPV until 2025) and paying EETS providers an additional EUR 700 million a year (cumulated value, all road managers, all EETS providers). However, this is a budgetary neutral impact, as it will

The environmental and social costs of the initiative are not significant.

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correspond to the outsourcing of activities currently performed by the managers themselves or by their subcontractors.

Overall, the net cumulated benefit of the preferred policy option (benefits minus costs) is EUR 254 million (NPV) until 2025.

• Regulatory fitness and simplification

The initiative is expected to reduce regulatory burden for companies by a cumulated EUR 254 million until 2025 as a result of:

– a cumulated EUR 370 million reduction in regulatory burden for road users until

2025. Most of this will benefit road hauliers, the majority of which are small businesses (mostly micro-enterprises);

– a cumulated EUR 126 million increase in regulatory burden for toll chargers

(i.e. road managers), none of which are SMEs; and

– a cumulated EUR 10 million reduction in regulatory burden for EETS providers

(predominantly subsidiaries of large or very large companies).

Because SMEs and micro-enterprises predominate in the largest category of affected stakeholders (i.e. road hauliers) and the impacts for them are positive, there is no provision for exemptions or specific rules for them.

The initiative is likely to promote competition, allowing new operators to enter previously monopolistic national electronic toll collection markets. It will reduce regulatory burdens for the road haulage industry, thereby increasing its sectoral competitiveness. Also, greater harmonisation of electronic toll collection methods will benefit European equipment manufacturers, who are already global leaders thanks to strong and efficient EU standards.

The proposal contributes to the objectives of the single digital market13

• Fundamental rights

Progress towards a functioning EETS should facilitate cross-border travel and so support the free movement of goods and people. Improved enforcement, as a result of the exchange of information on the identity of toll offenders, will ensure equal treatment of national and foreign-registered road users. The proposal also introduces provisions which should allow EETS providers to be treated on an equal footing with the incumbent operators.

The main impact related to the right to protection of personal data and the right to privacy results from the establishment of a mechanism for the mandatory exchange of information between Member States on the identity of vehicle owners who are proven or suspected of committing fraud against the toll system. The mechanism is largely based on the provisions of Directive (EU) 2015/413 for the cross-border enforcement of road safety related offences. Therefore, appropriate safeguards are put in place to ensure that the proposal fully respects Article 7 and 8 of the Charter of Fundamental Rights, as well as the applicable legal framework on the protection of personal data. The data collected under this Directive should not be used for purposes other than those of this Directive. Member States should comply with the obligations on the conditions of use and of temporary storage of the data and, in a

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A digital Single Market Strategy for Europe, COME(2015) 192 final, Brussels, 6.5.2015.

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more general way, with the principles of necessity and proportionality on the use of personal data.

The proposal has been consulted with the European Data Protection Supervisor (EDPS) in two stages: first, the EDPS was consulted on the principles of the foreseen system for the exchange of information; second, the EDPS was consulted on the actual legislative text. The EDPS did not have any further comments.

4. BUDGETARY IMPLICATIONS

There are no budgetary implications for the Union.

5. OTHERELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The impact assessment sets out a detailed monitoring plan based on 11 indicators for monitoring and evaluating the effects of the legislation five years after its entry into force. A specific reporting clause has been included in the proposal to evaluate the impact of the new provisions on the cross-border exchange of information for the purpose of toll enforcement.

• Explanatory documents (for directives)

Considering the scope of the proposal and the fact that it is a recast of an existing Directive (2004/52/EC) which all Member States have transposed in full, it does not seem justified or proportionate to require explanatory documents.

• Detailed explanation of the specific provisions of the proposal

The main substantive amendments to the text of Directive 2004/52/EC are as follows:

Article 1: Subject matter and scope

In paragraph 1, a second objective is added (on top of ensuring the interoperability of electronic road toll systems): to facilitate the cross-border exchange of information on the failure to pay road fees in the Union.

In paragraph 2, subparagraph (b) is deleted to allow Member States to exchange information on those who fail to pay road fees where toll systems do not require the installation of on-board equipment. This change is necessary to allow, for instance, for cross-border enforcement of city tolls (including congestion-charging systems) and other systems using automatic number plate recognition technology for electronic toll transactions.

Paragraph 3 is amended to confirm that the EETS is provided by EETS providers, not by toll chargers.

Article 2: Definitions

An article with definitions is added to clarify the terms used in the Directive.

Article 3: Technological solutions

Paragraph 1 specifies that its provisions apply only to toll systems that require the installation or use of on-board equipment. ‘Use’ is included to confirm that portable devices used for electronic toll transactions are to be considered as on-board equipment for the purpose of the Directive. Paragraph 1 explains the technological solutions applicable to new and existing electronic toll systems.

Also in paragraph 1, the list of technologies that can be used for electronic toll transactions is moved to Annex IV. The Commission is authorised to amend the list by delegated act if a technology becomes obsolete or if a new technology, tested in the framework of pilot tests in compliance with Article 20 of Decision 2009/750/EC, should be added to the list.

Old paragraph 2 is removed, as it repeats other provisions in the Directive.

New paragraph 2 provides that on-board equipment which uses satellite positioning technology is compatible with the positioning services provided by the Galileo and the European Geostationary Navigation Overlay Service ('EGNOS') systems and may be compatible with other satellite navigation systems.

Paragraph 3 clarifies that, for the purpose of complying with the technological requirements of the Directive and in particular Annex IV, EETS on-board equipment can link to other devices installed or present in the vehicle, such as satellite navigation systems or smartphones. It also clarifies that communication between the on-board equipment and such other devices may use technologies not listed in Annex IV (for example Bluetooth).

In paragraph 3, the wording ‘and which is suitable for use in all types of vehicles, in accordance with the timetable set out in Article 3(4)’ is removed for two reasons:

– the EETS providers should not be obliged to provide the EETS to all vehicles, but be

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able to choose to provide it to heavy-duty vehicles or to light-duty vehicles only; and


– as explained in paragraph 4, on-board equipment in light-duty vehicles may be

suitable for use with the 5.8 GHz microwave technology only and thus not in certain toll-collection systems applying to heavy-duty vehicles which require equipment suitable for use with all three permitted technologies.

New paragraph 4 clarifies that on-board equipment can be integrated with other devices and serve purposes other than tolling.

In the new paragraph 4, an exemption is added to allow EETS providers serving light-duty vehicles to offer their clients on-board equipment suitable for use with the 5.8 GHz microwave technology only. This exemption applies until 31 December 2027.

Old paragraph 3 is removed, as it refers to obsolete requirements.

Article 4 is deleted.

Paragraph 1 is deleted because it has become superfluous.

Paragraphs 2 and 3 have been moved to other articles.

Paragraph 4 is deleted because Member States have no influence on the date by which EETS providers must offer the EETS.

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Article 5: Features of the European electronic toll service


Paragraph 1 refers to ‘Annex I’ rather than ‘the annex’, because new annexes are being added and all annexes therefore have to be numbered.

Old paragraphs 2, 4 and 5 are replaced by new provisions in Article 11 to adapt the regulatory procedure with scrutiny to the delegation of powers procedure, as referred to in Article 290(1) of the Treaty on the Functioning of the European Union (TFEU).

New paragraph 5 contains a specific provision to ensure that, when European standardisation bodies review EETS-relevant standards, appropriate transition arrangements will preserve the continual compatibility of interoperability constituents.

Also in new paragraph 5, the reference to Article 2(1) is replaced by a reference to Annex IV, to which the relevant provisions are transferred.

Articles 6, 7, 8, 9 and 10 and Annexes II and III

These five articles and two annexes provide for a procedure for the cross-border exchange of information on toll offenders. They result from adaptation of the provisions of Directive (EU) 2015/413 to the tolling context. The European Data Protection Supervisor (EDPS) was consulted on the draft legislative text and did not raise any objections.

The following provisions of Directive 2004/52/EC remain unchanged in the proposed initiative:

Article 16 (old Article 8), which specifies the addressees of the Directive; and

Annex I (old Annex), which specifies the items required for establishing and deploying the EETS.

^ Corrigendum, OJ L 200, 7.6.2004, p. 50 (adapted)