The Federal Ministry of Transport wants to consider an arbitration decision in the dispute over the toll for broken down passenger cars. A “partial arbitration award” has been rendered, a ministry spokesman confirmed in Berlin on Saturday in response to an investigation.
“What is being addressed are certain aspects of the grounds for the claim, but not the amount of the claim. The court also discussed possible claims for damages by the federal government.” The procedure is confidential, he said, and a decision must now be made on how to proceed.
The evening before, the operating companies actually affected CTS Eventim and Kapsch TrafficCom had announced that the arbitral tribunal had recognized a claim for damages and reimbursement of costs against the Federal Republic. The amount of the claim will now be decided in the second phase of the arbitration procedure.
The toll for passenger cars – a prestige project of the CSU – had been stopped by the European Court of Justice (CJEU) in June 2019 as illegal. The targeted operators are seeking 560 million euros in damages after the federal government canceled the contracts following the ruling. The federal government and the responsible Minister of Transport at the time, Andreas Scheuer (CSU), had rejected the claims, and the arbitration procedure followed. In the meantime, the Ministry of Transport is led by Volker Wissing (FDP).
The arbitral tribunal had confirmed that the claims filed by their Autoticket joint venture, which was founded for the toll, “substantially exist”, Kapsch and CTS Eventim announced. This is the result of the interim arbitration award, which was communicated to the operating parties on Friday.
Accordingly, the Federal Ministry of Transport was not allowed to withdraw from the contract “unilaterally and without compensation”. The arbitral award also rejected the alleged reason for the termination, namely “poor performance”.
Scheuer had repeatedly stressed that the operators were not entitled to compensation. They failed to perform the contract and, even after termination, breached the contracts intentionally and as a breach of trust. These had therefore been removed for several valid reasons. In this case, the contractual situation was “in favor of the federal government”.
The operating companies, on the other hand, had argued that in this case the termination of the contract, their subsidiary Autoticket was entitled to the loss of profit over the duration of the contract – twelve years were envisaged. In addition, the operating agreement provided compensation for “termination costs”, which also included claims for damages from subcontractors.
Scheuer’s actions were investigated by a Bundestag committee during the last legislature. The opposition at the time accused him of violations of the budget law and public procurement and warned of millions in costs for taxpayers due to the termination of the contract. Scheuer had always denied the charges.
The committee also took aim at the fact that Scheuer had already concluded the operator contracts at the end of 2018, even before there was definitive legal certainty at the ECJ. The U committee’s final report, submitted in 2021, said the risk of a complete passenger car toll failure before the ECJ “should have been given greater weight in the risk assessment”. At the same time, it was stated that “no instances of lying, deliberate concealment or manipulation” by the ministry or the minister could be credibly proven.
Image by Tom Wieden