Car toll: Federal Court of Auditors tightened criticism of car toll

The Federal Court of Auditors holds to its criticism of the Ministry of Transport undiminished. In a final inspection report on the car toll, the inspectors allege that the Ministry of Andreas Scheuer (CSU) violated public procurement and budget law. In addition, the high claims for damages that the federal government had granted to the operating companies Kapsch TrafficCom and CTS Eventim were "not appropriate".

A few weeks ago, the Federal Court of Auditors had sent the Ministry a first version of the review report and asked for an opinion, as the SPIEGEL reported at that time. The Federal Ministry of Transport (BMVi) had rejected the reviewers' criticism and declared its actions "admissible or appropriate in all areas".

The examiners included the ministry's statements in their final report. However, the Court of Auditors did not convince: "He stays with his criticism", the summary states. On 28 pages, the inspectors practice some scathing criticism of the actions of the Ministry of Transport. The BMVI had argued in its defense sometimes contradictory and can not substantiate allegations with documents.

Hundreds of millions of euros in a kind of shadow household

The ministry violated public procurement law when awarding the operating agreement, the Court said. In October 2018, only a single bidder had submitted a final offer for the collection of the car toll, which later became the operator consortium of Kapsch TraficCom and CTS Eventim. The offer of the two companies, however, was one billion euros above the sum that the Bundestag had made available for the project.

The ministry subsequently conducted "educational and negotiation talks" with companies to push supply below the $ 2 billion mark. The Federal Court of Auditors considers this to be "contrary to procurement law" because negotiations on final bids are "generally not permitted". Furthermore, the "financial amount of the offer" had led the BMVI to "rethink the project as a whole", the report said.

In addition, the Ministry had violated budgetary law, as the complainant bid submitted by tenderers only formally complied with the approved appropriations. However, the contract contained "other elements of compensation" which would have led to "expenses of tens of millions in future years". Among other things, it involved the shared use of the toll terminals of the toll truck operator Toll Collect and a separate reimbursement of the postage costs of the operator. So Minister Scheuer stored hundreds of millions of euros in a kind of shadow budget to save the CSU prestige project.

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Oliver Berg / picture alliance / dVirkehrsminister Scheuer and his ex-Secretary of StateThe tricky Mr. toll

It turned out differently: On 18 June, the European Court of Justice declared the German car toll unlawful. Already dealing with the risk of a negative ECJ ruling was doubtful, complain the auditors. The Ministry could not provide documentation on how to assess the risk of complete failure. The ministry referred to risk workshops it had conducted where the topic had been discussed. "Evidence for this could not deliver," said the examiner.

In addition, the topic was discussed in the regularly meeting overall project management group, it was said by the Ministry. But even this argument did not apply to the examiners. Finally, the risk of "delaying" the project through the infringement procedure was categorized as a "major problem" and the traffic light was set to "Yellow level of risk". "The BMVI did not classify the ECJ risk as low, as stated in the opinion, as low."

So the ministry was well aware that the infrastructure levy, according to the official title, could fail. Nevertheless, the contract was signed on December 30, 2018 before the decisive judgment of the European Court of Justice. In order for the companies to even embark on this adventure, the federal government promised high damages in the event of a negative verdict by the Luxembourg judges.

Ministry contradicts itself

On taxpayers, according to insiders could cost over half a billion euros. The Court of Auditors did not quantify the claims for damages, but considers the provisions in the contract to be inappropriate: "The contractor can demand almost the full entrepreneurial profit over the entire term even after the conclusion of the contract if the contract is terminated solely on the basis of the ECJ ruling. "

The Ministry rejected the allegations. Kapsch and Eventim would not be entitled to the profit calculated over the entire duration of the contract in the event of a dismissal for regulatory reasons alone - as in the case of a negative ECJ ruling.

However, the ministry contradicts itself. According to a ministerial bill, on which the SPIEGEL reported in September, the BMVI itself had recognized in January 2019 that the consortium should be placed on a notice as if "the contract would have been continued until the expiry of its normal term". Therefore, the Court of Auditors remains with "his view" that the federal government has negotiated badly.

The opposition is sharply criticizing the Minister of Transport: "Andreas Scheuer is probably the only person in Germany who still believes that he has done everything right with the car toll project," says Green Housekeeper Sven-Christian Kindler. He calls for the expulsion of the CSU politician: "After the Federal Court of Auditors has clearly stated in its report as an independent audit authority that Andreas Scheuer has violated the car toll against budget and procurement law, the Chancellor must dismiss him immediately."

Arbitration with operating companies is starting

After that it looks like it was not over yet. But for Scheuer (CSU) the failed car toll becomes more and more a burden. The Bundestag is preparing for the parliamentary committee of inquiry. Representatives of MPs are already putting together lists of files and witnesses to help clear the toll. In January, the first witnesses are to be heard.

In addition, arbitration proceedings are starting with the operating companies. The federal government had decided not to lead any legal disputes before a regular court, but before a private arbitration court, behind closed doors. The Bundesrechnungshof is also heavily criticizing this. Experience with truck tolls has shown that such private arbitration can get completely out of hand. At that time costs for legal advisers in the amount of 250 million euros were incurred. The ministry pointed out that this time it had chosen a different procedure to settle the dispute more quickly.

But even this did not allow the examiners to apply completely. It remains true that the Ministry of Transport, as part of the public sector, should choose the ordinary legal system. Alone, to preserve the "transparency of public action".