After Austria brought an action against Germany before the European Union Court of Justice (ECJ) on 12 October 2017 regarding the planned German car toll (Case C-591/17), the ECJ defined the toll as discriminatory on 18 June 2019. The Netherlands had joined the Austrian complaint.
Austria's main objection was indirect discrimination on grounds of nationality by compensating infrastructure costs through tax relief for owners of motor vehicles registered in Germany. As German drivers are relieved by the reduction of the motor vehicle tax, only foreign drivers would actually be burdened by the infrastructure levy.
The ECJ ruled that "the infrastructure use charge, in combination with the relief from motor vehicle tax enjoyed by the owners of vehicles registered in Germany, constitutes indirect discrimination on grounds of nationality and is in breach of the principles of the free movement of goods and of the freedom to provide services. As regards the prohibition of discrimination on grounds of nationality, the Court finds that the effect of the relief from motor vehicle tax enjoyed by the owners of vehicles registered in Germany is to offset entirely the infrastructure use charge paid by those persons, with the result that the economic burden of that charge falls, de facto, solely on the owners and drivers of vehicles registered in other Member States.”
As recently as February, Advocate General (ECJ) Nils Wahl declared the planned toll to be legal and argued that the plans of the German infrastructure levy were lawful. He advised the judges to reject Austria's complaint. Wahl explains that Austria's complaint is based on a "fundamental misunderstanding of the concept of ‘discrimination’.” The Opinion of the Advocate General is to be understood as a recommendation to the Judges. They do not have to follow the opinion.
In a first statement, the German Minister of Transport, Andreas Scheuer (CSU), stated that the toll in its current form was "off the table" and that the judgement "should be respected and accepted.”