The secret court of arbitration will soon decide how many million euros the federal government has to pay because it unfairly terminated the car toll operator in 2019.
(Photo: imago images/Jochen Tack)
Berlin. The infrastructure tax (ISA), also known as the “car toll”, which failed in 2019, is likely to cost taxpayers dearly. This emerges from a document that the Federal Ministry of Transport keeps under lock and key, but which is available to the Handelsblatt.
The document contains the “rough estimate of potential compensation” for the toll companies should the federal government terminate the contracts “for regulatory reasons”, as the title suggests. Specifically, it is one of four calculations by the auditors from Pricewaterhouse Coopers (PwC) on behalf of the federal government. However, the document is not binding.
The calculations were made around the day the European Court of Justice (ECJ) declared the German toll plans null and void. As a result, the then Federal Minister of Transport Andreas Scheuer (CSU) – and now his successor Volker Wissing (FDP) – faced claims for damages from the companies that Scheuer had commissioned before the ECJ ruling to set up and operate the car toll system.
The companies are Kapsch Trafficcom AG and CTS Eventim. Scheuer brought her on board at the end of 2018, although the court proceedings before the ECJ were still ongoing. The Minister at the time wanted to collect a good half a billion euros net per year from the toll – primarily from foreign vehicle owners.
But the plan failed because of EU law, which many Scheuer experts had previously predicted.
chaos in a short time
Scheuer then had to work with the federal lawyers to assess whether he should quickly terminate the contracts with Kapsch Trafficcom AG and CTS Eventim and what that would mean. As a consultant to the federal government, PwC also had to act in a hurry and within a short time presented several assessments with the current status of work. The consultants first presented two assessments, one at 3.30 p.m. and the other at 8.30 p.m.
The then Federal Transport Minister Andreas Scheuer (CSU) was faced with claims for damages from some companies.
(Photo: dpa)
The next morning, the companies received the notice – for regulatory reasons and because of alleged poor performance. A regulatory reason is, for example, the court judgement. At 3:30 p.m., PwC presented another calculation based on the current work status. The last calculation then followed on June 20 at 2:45 p.m. – this is available to the Handelsblatt.
The three pages of the last document show: The claim of the companies based on the “final” offer of the companies and “the final economic feasibility study of December 18, 2018” totals “around EUR 480 million to EUR 776 million gross”. , as stated in the paper. After deducting the sales tax due, it would still be around 630 million euros. The companies are demanding EUR 560 million gross from the arbitral tribunal. So this seems realistic.
According to PwC, 446 to 740 million euros result from the operator contract for toll collection alone. Of this, 238 to 441 million euros are “lost profits of the operator (present value)”, depending on discounting. According to the documents, it is “exemplary” with a discount rate of three percent 375 million euros. The auditors also took into account agreed variable remuneration.
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In order to dissolve contracts with subcontractors, they calculated compensation from 209 to 298 million euros. With an interest rate of three percent, it is 270 million euros. There would also be compensation for initial work on automatic controls (30 million) and mobile controls (four to five million).
Companies are demanding 136 documents from the federal government – so far in vain
The ministry doesn’t want to know anything more about the estimates. It was “not official information” but “drafts” that the auditors later “withdrew”, the Handelsblatt now received as an answer. There is also no right to information about the ongoing court proceedings.
According to a document, the claims of the companies against the federal government total around 480 million to 776 million euros.
(Photo: dpa)
It’s not just about the arbitral tribunal, which has been meeting in secret since the end of 2019. In March of last year, it decided that the claims filed by the Autoticket joint venture founded by Kapsch and CTS Eventim “basically exist”, as both companies announced at the time.
The Federal Ministry of Transport was therefore not allowed to withdraw “unilaterally and without compensation” from the contract it had concluded at the end of 2018 to have the toll levied. The alleged reason for termination of “poor performance” was also rejected with the arbitral award.
Since then, the court has been discussing the amount of damages. The judgment of another court shows how severe the situation between the parties is: Since the arbitration court is only concerned with the amount of damage, Kapsch and Eventim sued the Berlin Administrative Court three months after the first arbitral award for the release of a total of 136 documents – electronic ones Messages to internal logs and status reports “on the infrastructure fee project” as well as the PwC calculations. The companies were right. However, the federal government has appealed, as the ministry explained to the Handelsblatt.
The companies are concerned with “information relating to the facts at issue in the arbitration proceedings”, as the administrative court’s judgment says. According to this, the companies have been requesting documents from the federal government since the beginning of the arbitration proceedings and have only been able to view them to a limited extent.
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According to the verdict, the ministry, which is now headed by FDP politician Volker Wissing, argues that the companies are “solely concerned” with “undermining” the arbitration agreement.
The ministry explained to the Handelsblatt that the PwC calculations had been classified as classified information “Confidential”, “since unauthorized access could be detrimental to the interests of the federal government”.
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