Toll Evasion: Actions beyond Issuing Warnings

Jul 25, 2025 Benn-Ibler Rechtsanwälte

In the case at hand, a driver had received a EUR 300 fine for not paying the toll within the prescribed period under Section 20(3) of the Austrian Federal Toll Act (Bundesstrassen-Mautgesetz (hereinafter BStMG), resulting in the issuance of a penalty notice by the Mayor Warning by the Provincial Administrative Court

The driver appealed to the Provincial Administrative Court of Carinthia (Landesverwaltungsgericht Kärnten, hereinafter LVwG), which upheld the appeal and replaced the penalty with a warning under Section 45(1)(4) of the Administrative Penalties Act (Verwaltungsstrafgesetz, hereinafter VStG). The court cited the minor nature of the offense, the driver’s clean record, and the fact that he had paid the toll. His only offence had been the lack of a EURO emissions sticker, where the driver had relied on advice from a toll agency employee who had advised him that all requirements had been met.

Appeal to the Austrian Administrative Court

The Mayor of Villach filed an extraordinary appeal against this ruling, contending that it departed from established decisions of the Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) concerning Section 45(1)(4) of the VStG. Conversely, the driver sought the dismissal of the appeal and the affirmation of the initial decision.

In the appeal, the mayor contended that the LVwG had failed to address the significance of the protected legal interest, despite this being a requirement under Section 45(1)(4) of the VStG. Additionally, it was asserted that the toll charge plays a critical role in supporting the maintenance and financing of Austria’s road network.

Revocation of the ruling

The VwGH’s established case law on Section 45(1)(4) clearly states that circumstances must be present cumulatively. These circumstances include the minor significance of the legally protected interest, the minor intensity of the impairment of this interest by the act, and the minor culpability. If one of the above conditions for the discontinuation of criminal proceedings is not met, a warning cannot be issued.

With reference to legislative materials, the VwGH further observed that the legal interest safeguarded by the penal provisions of the BStMG is considerable, particularly given the severity of the associated penalties. Consequently, the LVwG’s decision represents a substantial departure from VwGH case law. On this basis, the court set aside the ruling, determining it to be substantively unlawful.

VwGH, Ra 2024/06/0173 (10.06.2025)