On 5 February 2016, the Supreme Court upheld the Eastern High Court ruling in the so-called road charge case. The Supreme Court ruled in favour of the Municipality of Slagelse that Forsyningssekretariatet could not decide on the municipal fixing of road charges based on the law with immediate effect. For more information on what municipalities and supply companies should be aware of after the ruling:
WHAT DO MUNICIPALITIES HAVE TO BE AWARE OF?
As a consequence of Forsyningssekretariatet's invalid decision, the municipalities have either repaid the road charge to the waste water company or set off its block grants based on the so-called 40/60 rule.
Municipalities that have made set-off against the block grant (and have concluded a suspension agreement with Forsyningssekretariatet) have already received repayments from the Ministry of Social Affairs and the Interior based on the Eastern High Court ruling.
The municipalities that have subsequently paid road charges to the waste water companies based on Forsyningssekretariatet's decisions may, in specific circumstances, claim repayment from these companies. To which extent this is possible depends on a specific assessment of the detailed circumstances of the repayment, including whether the municipality has reserved the right to repayment, and whether a suspension agreement has been concluded in relation to the rules on time-barring.
WHAT DO WASTE WATER COMPANIES HAVE TO BE AWARE OF?
As mentioned above, waste water companies may be obligated to repay a subsequent payment of road charge to the municipality. In that case, it should be considered how this expense is to be handled in relation to the price gap, including whether the amount to be paid to the municipality may be included in the price gap as a 1:1 expense.
FUTURE FIXING OF ROAD CHARGES
The Supreme Court ruling may also give rise to discussions between the municipalities and the waste water companies as to the model upon which the future road charge is to be based. The Supreme Court ruling concerned road charges paid in the period prior to the separation of waste water supplies from the municipalities when the municipalities fixed the road charges themselves.
After the coming into force of the Water Sector Act and the consequential changes in the Payment Services Act, the individual waste water company is to lay down the principles of the calculation of the road charge in its payment regulation. The municipality then has to approve the payment regulation, including the principles of the calculation of the road charge.