EC: Operator of Polish A2 motorway needs to repay around €210 million
This was in breach of EU State aid rules. AWSA has to repay PLN 895 million (around €210 million), to the Polish State.
Poland notified the Commission in August 2012 that they had overcompensated Autostrada Wielkopolska S.A. (AWSA) for loss in revenue resulting from a change in national legislation on toll motorways.
The compensation paid covered the period from 1 September 2005 to 30 June 2011.
In particular, it related to a change in Polish law, introduced in 2005, to exempt heavy goods vehicles with a valid vignette from the obligation to pay motorway tolls. Before, heavy goods vehicles had been liable to pay both motorway tolls and a lump-sum vignette fee.
The change ended this double charging of heavy goods vehicles in Poland, which was in breach of EU transport rules (Directive 1999/62/EC).
At the same time, Polish authorities decided to compensate motorway operators for their resulting loss in revenue. This compensation was agreed with each motorway operator individually.
In the case of AWSA, the terms of the compensation were set out in an annex to its original concession agreement with Poland. However, according to Poland, when applying the method under the agreement, an outdated study on traffic and revenues was used.
Instead of using the most up-to–date study from 2004, AWSA relied on a study from 1999. The 1999 study had estimated a significantly higher level of traffic and revenue and thus led to higher expected profitability.
The Commission's in-depth investigation opened in June 2014 confirmed that AWSA was entitled to receive compensation under its concession agreement with Poland to restore its expected financial situation just before the change of Polish law in 2005.
However, the Commission's investigation confirmed that the Polish authorities had relied on the outdated figures of 1999.
This led to an overestimation of the revenue AWSA would have generated from tolls on heavy goods vehicles in the absence of the legislative change.
The difference between the compensation actually paid and the estimates based on the updated 2004 figures amounts to an undue economic advantage to AWSA, in breach of EU State aid rules.
This is because the compensation actually paid to AWSA went beyond the direct effects of the legislative change and improved its expected financial situation.
Therefore, AWSA needs to repay PLN 895 million (around €210 million), plus interest. ■