Admissibility of including congestion costs in the cost coverage calculation of the performance-related heavy vehicle fee

Facts

The Federal Customs Administration assessed the ASTAG Swiss Commercial Vehicle Association for the performance-related heavy vehicle fee (HVCO) for the period from January 1, 2008 to January 31, 2008 and set it at a total of CHF 188.15. The ASTAG lodged an objection, which was rejected. The Federal Administrative Court overturned the objection decision and referred the matter back to the lower court for determination of the fee in accordance with the considerations. The Federal Customs Administration appealed to the Federal Supreme Court.

The appeal essentially concerns the question of whether the increased HVCO tariff decided by the Federal Council on September 12, 2007 and coming into force on January 1, 2008 is compatible with higher-ranking law. In particular, it is about the compatibility of the increased rates in Art. 14 HVCO with the requirement of Art. 7 HVCA for cost coverage.

Considerations

The Federal Supreme Court examined the interpretation of Art. 7 HVCA and came to the conclusion that the requirement of cost coverage has a central and independent significance in determining the fee tariff. It found that congestion costs are to be considered as external costs within the meaning of Art. 7 HVCA, as they are to be considered from the perspective of heavy traffic as the cause of congestion and corresponding follow-up costs.

The court pointed out that the heavy vehicle fee is intended to impose on heavy traffic the (not already otherwise covered) costs that it causes to the general…