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New road tolls

Over the next few months, a legal regime may come into existence in Poland for providing new types of toll collection and settlement services.

Intensive work is currently underway in Poland on setting up a new general toll collection system. Poland is also preparing to introduce legislation that will allow the setting up of a European Electronic Toll Service (EETS) for road use. Over the next few months, a legal regime may come into existence in Poland for providing new types of toll collection and settlement services. This is good news for every driver — navigating through toll road sections may become much simpler. Also, businesses should take a close look at the new regulations, because the implementation of EETS will create public procurement opportunities associated with this infrastructure project.

Work on setting up a new general electronic toll collection system for toll road sections is the result of the failure of the traditional toll collection method. In turn, the basis for creating the European Electronic Toll Service is the European Parliament and Council Directive 2004/52/EC of 29 April 2004 on the interoperability of electronic road toll systems across the EU („Directive”). Although the Directive has been in force for over 10 years, it only became possible to create an EETS in practice after the European Commission issued a decision on 6 October 2009 defining the European Electronic Toll Service and its technical components („EETS decision„). The new universal system of electronic toll collection and EETS are formally independent initiatives, but in practice the new toll system will probably be part of EETS, and therefore they have many common elements.

The primary objective of EETS is to create a universal, electronic system for collecting tolls for paid road sections across the EU. This system does not assume the creation of a new pan-European single toll collection system. It assumes only the creation of a solution that enables the integration of multiple systems, operating independently in different Member States. In this sense, EETS is independent of the existing toll systems in individual Member States. From a driver’s perspective, EETS will ultimately be very attractive, because no matter where in the EU the driver uses a toll road, and whether the road operator is a public or private entity, the driver will be required to pay a fee to a single entity, with whom he has entered into an EETS agreement. The actual fee will be charged according to the rules and rates set by individual road operators (EETS is therefore not expected to introduce a harmonized EU-wide rate for road use). The creation of EETS is a major technical and legal challenge. In 2012, 12 Member States were covered by a system of fees for private car journeys and 22 Member States were charging for heavy goods vehicles. These systems operate on the basis of various technologies. In many cases, tolling is still not automated. Consolidation of such diverse systems is a major challenge, made even more complicated by the fact that the electronic fees system may be ultimately based on very different technological solutions. Although the above-mentioned Directive introduces certain technological limitations, it still allows the use of various technical solutions (satellite positioning, solutions based on the mobile communications GSM-GPRS standard and solutions based on 5.8 GHz microwave technology). In accordance with art. 2 of the Directive, the new electronic toll collection systems introduced in Member States after 1 January 2007 and equipment for installation on-board should be based on one of the above technologies envisaged by the Directive. This also applies to the new Polish toll collection system, whose concept is currently being developed (at this stage it is expected that the system will be based on 5.8 GHz microwave technology and on-board equipment). The currently operational viaTOLL electronic fee collection system in Poland complies with the requirements laid down by the Directive (which is based on 5.8 GHz microwave technology and requires appropriate on-board equipment). Its use is still limited geographically and in practice it only covers vehicles exceeding 3.5 tonnes.

From a legal point of view, EETS requires the creation of a network of contractual relationships that enable the efficient processing of payments for journeys while not unduly disrupting drivers. The legal structure for EETS envisaged in the Directive and in the EETS decision assumes that drivers will enter into agreements for access to EETS with entities referred to as ‚EETS providers’. Under such agreements, drivers will be able to use all toll roads participating in the EETS, regardless of which Member State they are in (ultimately all toll roads using an electronic toll collection system are to participate in this). Charges for journeys are collected electronically, and their settlement takes place between the driver and the EETS provider, with whom the driver has entered into an agreement for access to EETS. There is no need to settle journeys individually with each toll road operator. The EETS provider is responsible for proper settlements with operators. This is undoubtedly a great convenience for drivers and the primary benefit of EETS.

The technology deployed in EETS is primarily used to record journeys, and automatically calculate tolls. Another issue is organizing the payment method. Both the Directive and EETS decision leave it to the EETS providers to determine the principles for  payment. The system can be organized either on a pre-paid or post-paid basis. It is also possible to conceive solutions providing for payments using NFC technology in smartphones and on-board equipment used for recording journeys. Such solutions are suggested in the European Parliament paper on the technology options for EETS in Europe, published in December 2014.

Advanced work is currently underway in Poland on a draft law amending the law on public roads and toll motorways and the National Road Fund. This draft law aims to implement the provisions of the Directive and the EETS decision in Poland. At this stage, it is difficult to predict the final version of the regulation, especially since in the course of legislative work, at least one controversial issue was identified from the future system operational perspective. The different administrative bodies involved in the legislative process are disputing whether, according to the EETS decision, the EETS provider should be liable to the toll road operator for payment of the fees by the user. In other words, whether the EETS provider will be responsible for paying the tolls, even if it does not receive them from the user. The dispute demonstrates that the EETS decision is not conclusive in this regard. The ultimate choice of interpretation of the EETS decision may be of fundamental importance for the future of EETS. It is clear that imposing a guarantee liability on the EETS provider will have a major impact on the shape of agreements with users, and thus the attractiveness of the EETS. In the worst case, the imposition of such liability may even lead to a lack of interest in providing EETS services.

Apart from the above concerns, introducing provisions in Poland permitting the provision of EETS in conjunction with the continuing work on setting up a new system for the use of toll roads in Poland will contribute to the emergence of a new and attractive market for providers of equipment necessary to provide the toll collection service (mainly on-board equipment and devices requiring to be installed in traffic lanes) as well as settlement service providers.

Krzysztof Wojdyło, New Technologies Practice and Payment Services Practice, Wardyński & Partners

The article is a part of the New Technologies Newsletter, March-April 2015