In its ruling of September 28, 2022 (XII ZR 7/22), the Federal Court of Justice strengthened the rights of foreign highway operators.
In the case decided, a Hungarian highway operator had sued a German car rental company for payment of the road toll in the form of a basic replacement toll or an increased additional charge based on the Hungarian toll ordinance. According to the Hungarian Road Traffic Act, the owner is the debtor of the claim.
The Federal Court of Justice first pointed out that under Art. 21 of the Rome I Regulation, which applies to international contractual obligations, the application of the foreign law designated therein may be refused if it would be manifestly incompatible with domestic public policy ("ordre public"). The BGH judges ruled that the sole liability of the vehicle owner for the payment of the toll provided for under the Hungarian law applicable here was not incompatible with principles of domestic law, even in the case of vehicle rental by a car rental company. A link between the obligation to pay and the status of the vehicle owner is also not fundamentally alien to German law, as is shown by the federal highway toll under public law, the liability of a vehicle owner under civil law pursuant to Section 7 (1) of the German Road Traffic Act (StVG) and the case law of the Federal Court of Justice (BGH) on the liability of the vehicle owner under civil law in the case of unauthorized parking of vehicles.
In the BGH's view, the "increased additional fee" also does not violate the "ordre public“ since it is to be regarded as a form of contractual penalty and is thus also not completely foreign to German law.
The decision of the BGH thus also clears the way for Italian freeway operators, to act against German vehicle owners for alleged non-payment of tolls. Should you require legal advice in this regard, we will be happy to assist you.