Roads Toll Act: Request for Preliminary Ruling to the ECJ

Jun 18, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has referred a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling concerning the potential abuse of a dominant market position.

Tolls for specific Austrian federal roads are payable through the respondent's toll system. As the beneficiary of a usufruct right covering all motorways and expressways in Austria, the respondent is recognised as the toll creditor.

Digital toll products are available for purchase through various channels, including the respondent's toll shop, physical sales locations, and authorised distribution partners. Regardless of the purchasing method, end customers receive digital toll products at the same pricing as offered in the respondent’s toll shop, specifically without incurring any supplementary service fees.

Since 2017, the respondent has implemented the General Terms of Use ("ANB") for the acquisition of digital toll products within the toll shop, which encompass a restriction on resale.

Respondent prevents the applicant from acquiring digital toll products

The applicant offers digital toll products for the Austrian motorways via her website. She acquired these digital toll products either directly from the respondent or from the respondent's distribution partners and charged both the toll price and a service fee.

Effective 15 March 2024, the respondent has restricted the applicant's access to digital toll products through the toll shop.

The applicant consequently petitioned for an order requiring the respondent to discontinue the misuse of her dominant market position and to provide the applicant with access to the respondent's toll shop.

The OGH noted that the respondent is the only toll creditor, giving her a monopoly and dominant position in Austria's digital toll distribution market.

The OGH has referred the following question to the ECJ for a preliminary ruling:

May the refusal by a company holding a dominant market position to provide a service—namely, the registration of its customer's clients' number plates in the company's toll system—be considered an abuse under Article 102 TFEU? This is particularly relevant where the service is directly offered by the dominant company, the customer does not supply a distinct or "new" service, the refusal would effectively eliminate competition from the customer, cannot be objectively justified, and the service itself is essential to the customer's business operations.

OGH 16 Ok 3/26s (07/05/2026)