The Heavy Goods Vehicles (Charging for the Use of Certain Infrastructure on the Trans-European Road Network) Regulations 2009

PART 2 REQUIREMENTS RELATING TO THE DETERMINATION OF THE RATES OF A TOLL OR USER CHARGE

Calculation of weighted average tolls

4.—(1) Subject to the following paragraphs, in relation to the process of determining the rates of a toll to be levied, the responsible person must take into account the following when calculating the weighted average toll—

(a) the construction costs of the section of the infrastructure in relation to which the toll is to be levied, and

(b) the cost of operating, maintaining and developing that section of the infrastructure.

(2) When calculating the weighted average toll, the responsible person may also take into account a return on capital or a profit margin based on market conditions.

(3) The responsible person may decide that all the costs referred to in paragraph (1) are to be recovered through revenue from tolls, or that these costs are not to be recovered through revenue from tolls, or that only a percentage of these costs is to be recovered through revenue from tolls.

(4) Where a tolling arrangement—

(a) does not involve a concession toll, and

(b) comes into effect after the date these Regulations come into force, or came into effect on or before that date and is being substantially modified after that date,

the responsible person must calculate the costs referred to in paragraph (1) using a methodology based on the core calculation principles set out in Annex III.

(5) Paragraph (6) applies where a tolling arrangement—

(a) does involve a concession toll, and

(b) comes into effect after the date these Regulations come into force, or came into effect on or before that date and is being substantially modified after that date.

(6) Where this paragraph applies, the responsible person must—

(a) calculate the costs referred to in paragraph (1) using a methodology based on the core calculation principles set out in Annex III,

(b) calculate the weighted average toll which results from using that methodology, and

(c) on the basis of a reference period appropriate to the nature of the concession contract concerned, determine the maximum level of toll which is equivalent to, or less than, that weighted average toll.

Variation of rates of tolls for combating environmental damage and tackling congestion etc

5.—(1) Subject to paragraph (3), the responsible person may vary the rates of a toll as set out in paragraph (5) for any of the purposes referred to in paragraph (2).

(2) The purposes referred to are—

(a) combating environmental damage,

(b) tackling congestion,

(c) minimising infrastructure damage,

(d) optimising the use of the infrastructure concerned, and

(e) promoting road safety.

(3) Any variation of the rates of a toll pursuant to paragraph (1) must—

(a) be proportionate,

(b) be transparent and non-discriminatory,

(c) not be designed to generate additional revenue from tolls, and

(d) be in accordance with the maximum flexibility thresholds set out in paragraphs (6) and (7).

(4) If, despite paragraph (3)(c), a variation of the rates of a toll results in additional revenue and a weighted average toll which is not in accordance with regulation 4, the responsible person must counterbalance this by varying the rates of a toll within two years of the end of the accounting year in which the additional revenue is generated.

(5) Subject to paragraphs (6) and (7) and regulation 6, the rates of a toll may be varied according to either or both of the following—

(a) whether the HGV is of a ‘Euro 0’, ‘Euro I’, ‘Euro II’, ‘Euro III’, ‘Euro IV’, Euro V’, or ‘EEV’ category,

(b) the time of day, the type of day, or the season.

(6) Where the rates of a toll are varied under paragraph (5)(a), the resulting toll must not be more than 100% above the toll charged for an equivalent HGV which meets the strictest emission standards referred to in Annex 0.

(7) Where the rates of a toll are varied under paragraph (5)(b)—

(a) the toll must not be more than 100% above the toll charged during the cheapest period of the day, type of day, or season, and

(b) where the cheapest period is zero-rated, the toll for the most expensive time of day, type of day or season is no more than 50% of the level of toll that would otherwise by applicable to the HGV in question.

Obligation to vary rates of tolls according to the emission standards of HGVs

6.—(1) Subject to regulation 7, where a toll is imposed under a concession contract, the responsible person must vary the rates of the toll in accordance with regulation 5(5)(a) when that concession contract is renewed.

(2) Subject to regulation 7, in relation to a toll which is not imposed under a concession contract—

(a) if the toll has effect on the date these Regulations come into force, or comes into effect after these Regulations come into force and on or before 31st December 2010, the responsible person must vary the rates of the toll in accordance with regulation 5(5)(a) before the end of 31st December 2010;

(b) if the toll comes into effect on or after 1st January 2011, the responsible person must vary the rates of the toll in accordance with regulation 5(5)(a) when the toll comes into effect.

Derogation from obligation to vary rates of tolls

7.—(1) The responsible person may derogate from a requirement in regulation 6 where—

(a) to vary the rates in accordance with regulation 5(5)(a) would—

(i) seriously undermine the coherence of the tolling system in the United Kingdom, or

(ii) lead to diversion of the most polluting HGVs away from the TERN with consequential impacts on road safety and public health, or

(b) for the tolling system concerned it would not be technically practicable to introduce such differentiation as indicated in regulation 5(5)(a).

(2) The following paragraphs apply where a requirement in regulation 6 is derogated from.

(3) If the responsible person is not an appropriate national authority, the responsible person must notify the appropriate national authority of the derogation by the end of the period or by the date, as the case may be, referred to in paragraph (5).

(4) If the responsible person notifies the appropriate national authority under paragraph (3), or if the responsible person is an appropriate national authority, the appropriate national authority must notify the European Commission of the derogation.

(5) The periods or date referred to are—

(a) in the case of a toll referred to in regulation 6(1), the period of 14 days beginning with the date the concession contract is renewed;

(b) in the case of a toll referred to in regulation 6(2)(a), 14th January 2011;

(c) in the case of a toll referred to in regulation 6(2)(b), the period of 14 days beginning with the date on which the toll comes into effect.

Power to vary rates of tolls for projects of high European interest

8.—(1) Subject to paragraphs (2) and (3), in relation to a section of infrastructure comprising a specific project of high European interest, the responsible person may vary the rates of the toll for the purpose of securing the commercial viability of the project.

(2) The rates may only be varied in accordance with paragraph (1) if the variation is in accordance with paragraphs (3) to (7) of regulation 5 and the resulting charging structure for the toll complies with the following conditions—

(a) it is linear,

(b) it is proportionate,

(c) it is openly published,

(d) it is available to all users on equal terms, and

(e) it does not lead to additional costs being passed to other users of the infrastructure in question in the form of higher tolls.

(3) If the responsible person is not an appropriate national authority, the responsible person must notify the appropriate national authority of the intention to vary in accordance with this regulation.

(4) If the responsible person notifies the appropriate national authority under paragraph (3), or if the responsible person is an appropriate national authority, the appropriate national authority must notify the European Commission of the intention to vary in accordance with this regulation.

(5) The operator must not implement the variation before the operator has been notified by the responsible person that the European Commission has confirmed that the variation complies with the conditions referred to in paragraph (2).

(6) The power to vary the rates of a toll for the purpose set out in paragraph (1) is in addition to the power to vary the rates for a purpose set out in regulation 5(2).

Rates of user charges

9.—(1) This regulation applies where it is intended to levy a user charge.

(2) The responsible person in relation to that user charge may not determine the rate of that charge (including administrative costs) for an HGV of the ‘Euro 0’, ‘Euro I’, ‘Euro II’, ‘Euro III’, ‘Euro IV’, ‘Euro V’ or ‘EEV’ category, for a year, month, week or day, to be higher than the maximum rate indicated in Annex II for an HGV of that category and for the period in question.

(3) The responsible person must determine rates for a user charge which are in proportion to the duration of the use to be made of the section of infrastructure referred to in regulation 3(1).

(4) The responsible person may determine an annual rate which is only applicable in relation to an HGV registered in the United Kingdom.