On 21 November 2024, the Court of Justice handed down its judgment Case C‑61/23, «Еkоstroy» EOOD v Agentsia «Patna infrastruktura, on the interpretation of Article 9a of Directive 1999/62/EC. The request has been made in proceedings between «Еkоstroy» EOOD (“Еkоstroy”), an undertaking established in Bulgaria, and Agentsia «Patna infrastruktura» (Bulgarian Road Infrastructure Agency, API) concerning a financial penalty imposed on Ekostroy for the use of a section of motorway without having paid the required toll amount as well as the possible payment of a flat-rate compensatory road charge.

On 18 January 2022, the use of a heavy goods vehicle belonging to Ekostroy was detected on a motorway covered by the tolled road network of Bulgaria. Since, however, the actual technical characteristics of the vehicle checked did not correspond to those which Ekostroy had indicated on the same day in its toll declaration, API imposed a financial penalty as well as a road charge on the ground that it was not possible to establish the actual distance travelled by the vehicle, from which Ekostroy could have been exempted in return for payment, within 14 days of receipt of the electronic form, of a compensatory road charge.

Ekostroy contested the electronic form before the Rayonen sad – Svilengrad (District Court of Svilengrad), which however dismissed its action. Ekostroy, therefore, brought an appeal before the Administrativen sad – Haskovo(Administrative Court of Haskovo; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether Article 9a of Directive 1999/62 must be interpreted as meaning that the requirement of proportionality to which it refers precludes a system of penalties that provides for the imposition of a flat-rate fine or financial penalty for all offences, whatever their nature and gravity, under the rules on the obligation to make prior payment of the toll for use of a road infrastructure, with the possibility of being exempted from those penalties by paying a flat-rate “redress charge”.

According to the Court, the imposition of flat-rate fines or financial penalties for all breaches of certain obligations laid down by law, without adjustment of the amount of the fine or financial penalty in line with the seriousness of the breach, appears to be disproportionate in the light of the objectives pursued by Directive 1999/62, notwithstanding the fact that the national legislation concerned provides for the possibility of being exempted from the administrative criminal liability incurred by paying a redress charge. The latter, indeed, is fixed at a flat-rate amount, which does not appear to be adjustable according to the gravity of the offence.

Marco Stillo