The European Commission has opened an in-depth investigation to verify whether compensation paid by the Polish state to Autostrada Wielkopolska S.A. (AWSA), the operator of part of the Polish A2 motorway, was in line with EU state aid rules. The measure was intended to compensate AWSA for a change in Polish law exempting heavy goods vehicles from the obligation to pay motorway tolls. At this stage, the Commission has serious concerns that the compensation, or part of it, may have provided AWSA with an undue economic advantage that may distort competition in the Single Market. The opening of the investigation gives interested parties an opportunity to submit their views; it does not prejudge the outcome.
In 2005 Poland amended its national legislation for heavy goods vehicles to cease charging them twice for the use of Polish motorways, in breach of EU taxation rules. Before, heavy goods vehicles were both liable to pay a lump-sum vignette fee and motorway tolls. The amendment exempted heavy goods vehicles from one charge, i.e. motorway tolls. Polish authorities also decided to compensate motorway operators for their loss in revenue by introducing a so-called "shadow toll" with the main objective of maintaining the financial situation of the concession holders. This was agreed with each concession holder individually. For AWSA this was to be achieved by keeping the Internal Rate of Return (IRR) for its investment in the A2 motorway at the same level as before the exemption.
In August 2012, Polish authorities notified the Commission that it had overcompensated AWSA for exempting heavy goods vehicles from the motorway toll on the A2 motorway. According to Polish authorities, AWSA overvalued its IRR by using an outdated study on traffic and revenue. This led to compensation amounts exceeding the revenue that AWSA would have been capable of generating from tolls on vehicles transporting heavy goods.
In total, the alleged overpayment according to Polish authorities amounted to PLN 895 million (around €224 million) from 1 September 2005 to 30 June 2011.
At this stage, the Commission has serious concerns that the way in which compensation was provided to AWSA may have resulted in overcompensation, providing a selective advantage to AWSA over competitors, who have to operate without such funding. Moreover, the Commission also has doubts whether AWSA was entitled to any compensation for loss of revenue due to legislative changes. This is because, according to the concession agreement concluded between AWSA and Polish authorities, the risks of traffic and the level of revenue from tolls should be borne by the concession holder. Finally, the way the compensation method was applied in the interim period of about two years during which the final shadow toll level was determined, could mean that the State took all risks with regard to traffic levels and costs during that period.
The Commission will now investigate whether its concerns are founded. Member States and interested parties will have the opportunity to submit comments within one month from the date of publication of the decision in the EU's Official Journal.
Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures requires Member States to respect certain conditions when maintaining or introducing tolls and/or user charges on the Trans-European road network. Poland brought its national law in line with the Directive by amending the national legislation on toll motorways (the Act of 28 July 2005 amending the Act on toll motorways and the National Road Fund and the Road Transport Act; Journal of Laws No 155, item 1297). The amendment abolished double charging on toll motorways by allowing heavy goods vehicles with a valid vignette to use these motorways without further charge.
On 30 June 2011, Poland introduced an electronic toll collection system "via TOLL" that replaced the vignettes. Since the system covers only selected roads and not the whole road network in Poland (as the vignettes did) there is no longer a risk of double charging. Thus, the concession holders can again charge all heavy goods vehicles entering toll motorways according to the rules set up in the concession agreements.
In December 2013, the Commission concluded that the compensation for the concession holder of the Polish A4 motorway Katowice - Krakow involved no state aid (case N 541/2010). While the basic principles of the compensation mechanism were the same as in the present case, the actual application differed and raised no competition concerns.
The non-confidential version of the decision will be made available under the case number SA.35356 in the State Aid Register on the DG Competition website once any confidentiality issues have been resolved. New publications of state aid decisions on the internet and in the Official Journal are listed in the State Aid Weekly e-News.