#1. Historical Development

N. 1 Today's heavy vehicle fee provision in Art. 85 BV traces back to Art. 36quater of the former Constitution, which was accepted by the people and cantons on 20 February 1994 with 67.1% approval (BBl 1994 II 1217). The constitutional provision created the basis for the transition from a flat-rate to a performance-related heavy vehicle fee (LSVA). The constitutional article was part of the Alpine Initiative and aimed at allocating the external costs of heavy traffic in accordance with the polluter-pays principle.

N. 2 The Federal Council Message of 24 May 1993 (BBl 1993 II 805) emphasised three main objectives: first, the internalisation of external costs according to the polluter-pays principle; second, the promotion of modal shift from road to rail; and third, the creation of fair competition conditions between transport modes. The constitutional revision of 1999 adopted the substantive content of Art. 36quater of the former Constitution unchanged into Art. 85 BV (BBl 1997 I 1).

#2. Systematic Classification

N. 3 Art. 85 BV is located in Title 3 (Confederation, Cantons and Communes), Chapter 5 (Public Works and Transport) of the Federal Constitution. Together with Art. 82–88 BV, this provision forms the constitutional foundation of Swiss transport policy. It stands in close systematic connection with → Art. 84 BV (Alpine Transit Traffic) and → Art. 86 BV (Use of Charges for Tasks and Expenditures in Connection with Road Traffic).

N. 4 The heavy vehicle fee is an incentive charge with subsidiary fiscal purposes. It differs from the fuel tax (→ Art. 86 para. 1 BV) through its direct link to distance travelled and pollutant emissions. Unlike classical taxes, the revenue is earmarked according to para. 2.

#3. Elements of the Offence / Normative Content

#3.1 Federal Competence (para. 1)

N. 5 The Confederation's levy competence is formulated as a «may provision». The Confederation is not obliged but entitled to levy a heavy vehicle fee. The competence is comprehensive and excludes cantonal heavy vehicle fees.

N. 6 The charge may be levied «according to performance or consumption». Performance-related means assessment according to kilometres driven, consumption-related according to fuel consumption. The HVFA has opted for a combination: kilometres driven multiplied by a weight- and emission-dependent tariff (Art. 6 HVFA).

#3.2 Cost Coverage Principle

N. 7 Heavy traffic must cause costs to the general public that are «not covered by other services or charges». This includes both infrastructure costs and external costs such as environmental, health and accident costs (BBl 1993 II 823).

N. 8 The concept of external costs is disputed. The Federal Court decided in BGE 136 II 337 that even «atypical» external costs such as congestion costs are covered. Heuck criticises this broad interpretation and argues that congestion costs are traffic-internal costs that cannot be externalised (Heuck, URP 2010, 542). The prevailing doctrine, however, follows the Federal Court's jurisprudence.

#3.3 Earmarking (para. 2)

N. 9 The net revenue is to be used for «costs in connection with land transport». This open formulation allows broad use, not only for road infrastructure but also for railway infrastructure, noise protection or traffic safety.

#3.4 Cantonal Share (para. 3)

N. 10 The mandatory participation of the cantons in the net revenue takes into account their responsibility for large parts of the road network. The «special effects in mountain and peripheral regions» refers to the disproportionate burden on these regions from transit traffic (BBl 1993 II 841).

#4. Legal Consequences

N. 11 Art. 85 BV does not create direct subjective rights or obligations. The constitutional provision requires specification through the HVFA and the HVFO. The obligation to pay the charge for individuals only arises through the implementing legislation (Art. 3 HVFA).

N. 12 The earmarking according to para. 2 is justiciable. Improper use of LSVA revenues can be challenged in court. The cantons have a constitutional right to participation in the net revenue according to para. 3.

#5. Points of Contention

N. 13 Scope of external costs: The controversy over the inclusion of congestion costs as external costs persists. While Epiney/Gruber (URP 1999, 612 ff.) and the Federal Court advocate a broad interpretation, Heuck (URP 2010, 537) and parts of the transport industry argue for a narrower interpretation.

N. 14 Relationship to the Land Transport Agreement: It is disputed to what extent the Land Transport Agreement with the EU restricts the Confederation's freedom to set tariffs. Sollberger/Epiney (Verkehrspolitische Gestaltungsspielräume, 2001, 89) see considerable constraints, while administrative practice assumes greater scope for action.

#6. Practical Guidelines

N. 15 When applying the HVFA, attention must be paid to the jurisprudence on endangering the charge collection (Art. 20 HVFA). BGE 132 IV 40 clarifies that even the negligent non-declaration of a trailer is punishable. The proper functioning of the recording device does not exempt from the declaration obligation.

N. 16 For unaccompanied combined transport, refund possibilities exist (Art. 9 HVFO). According to the Federal Administrative Court's jurisprudence (BVGE 2018 III/3), office containers also qualify for refunds. The minimum length of 5.5 metres is mandatory.

N. 17 LSVA tariffs are periodically adjusted. Increases require an adaptation of the HVFO by the Federal Council. The upper limit results from the cost coverage principle of Art. 7 HVFA in connection with Art. 85 para. 1 BV.

#Constitutional Foundations and LSVA Tariff Setting

#Cost Coverage Principle and External Costs

BGE 136 II 337 of 19 April 2010 — Performance-related heavy vehicle fee; cost coverage and external costs

The Federal Supreme Court confirms the constitutional competence to levy the LSVA and clarifies the application of the cost coverage principle. Art. 85 BV permits the levying of a performance- or consumption-based fee on heavy vehicles, insofar as these cause costs to the general public that are not already covered by other services or fees. The cost coverage principle of Art. 7 SVAG limits the LSVA to uncovered road costs and external costs of heavy vehicles.

«With Art. 36quater of the old Federal Constitution (aFC), adopted in the popular vote of 20 February 1994, the constitutional legislator created the competence to levy a performance- or consumption-based fee (LSVA) on heavy vehicles. This replaces the previous flat-rate heavy vehicle fee.»

BGE 136 II 337 (Continuation) — Traffic delay costs as external costs

The Federal Supreme Court declares traffic delay costs to be external costs within the meaning of Art. 7 SVAG. All costs caused by heavy vehicles and not covered that occur outside of heavy vehicle traffic appear as external. The traffic delay costs caused by heavy vehicles for other road users constitute external costs since they are not borne by the causers themselves.

«What can be decisive in assessing whether internal or external costs are present cannot be the perspective of road traffic as a whole, but solely that of heavy vehicle traffic or the collective of vehicle categories covered by the heavy vehicle fee.»

#Tariff Competence and Legality of Ordinances

Judgment 2A.71/2003 of 6 February 2004 — LSVA assessment; procedural law

The Federal Supreme Court examines the application of LSVA provisions to concrete assessment cases. The review of ordinance provisions of the Federal Council concerning the LSVA occurs only in cases of obvious exceedance of legal competences or constitutional violations. The Federal Council has wide discretionary scope in tariff design.

Judgment 2C_423/2014 of 30 July 2015 — Unaccompanied combined transport; reimbursement

The Federal Supreme Court confirms the reimbursement regulation for the LSVA for unaccompanied combined transport. The flat-rate reimbursement according to Art. 9 SVAV serves modal shift from road to rail and is constitutionally compliant. Containers must have a minimum length of 5.5 metres.

«The reimbursement of the LSVA for the pre- and post-haulage of unaccompanied combined transport aims to improve the framework conditions of rail in the transport market and to have goods transported increasingly by rail.»

#Criminal Law and LSVA Enforcement

#Endangerment of Heavy Vehicle Fee

BGE 132 IV 40 of 6 December 2005 — Endangerment of LSVA; trailer declaration

The Federal Supreme Court clarifies the criminal offence of fee endangerment according to Art. 20 para. 1 SVAG. The vehicle driver who intentionally or negligently fails to declare the accompanying trailer on the recording device fulfils the criminal offence of fee endangerment. The proper functioning of the recording device does not relieve the vehicle driver of his declaration obligation.

«The vehicle driver who, in disregard of Art. 17 para. 1 SVAV, intentionally or negligently fails to declare the accompanying trailer on the recording device, fulfils the criminal offence of fee endangerment according to Art. 20 para. 1 SVAG.»

#Control Procedures and Additional Demands

Judgment A-309/2016 of 14 June 2016 (FAC) — Flat-rate heavy vehicle fee; procedural law

The Federal Administrative Court confirms the competence of the customs administration for subsequent control and additional demands of the LSVA. Appeal decisions of the General Directorate of Customs concerning the enforcement of LSVA provisions are subject to appeal to the Federal Administrative Court according to Art. 23 para. 4 SVAG.

#Administrative Court Jurisprudence

#Joint Liability and Fee Obligation

Judgment A-1735/2006 of 31 March 2008 (FAC) — LSVA assessment; procedural questions

The Federal Administrative Court clarifies procedural aspects of LSVA collection. The fee is levied on domestic and foreign heavy motor vehicles and trailers for goods and passenger transport. For foreign vehicles, both the vehicle owner and the vehicle driver are liable for the fee.

#Reimbursement Procedures

Judgment BVGE 2018 III/3 of 24 September 2018 (FAC) — Office containers; unaccompanied combined transport

The Federal Administrative Court expands the container concept for LSVA reimbursements. Office containers used as mobile offices qualify as containers within the meaning of Art. 9 para. 1 SVAV. The flat-rate reimbursement of the LSVA in the pre- and post-haulage of unaccompanied combined transport is therefore also to be granted for office containers.

«'Office containers' - i.e., containers used as mobile offices - are 'containers' within the meaning of Art. 9 para. 1 SVAV. The flat-rate reimbursement of the performance-related heavy vehicle fee is therefore to be granted with respect to the 'office containers'.»

Judgment A-2495/2017 of 24 September 2018 (FAC) — UCV reimbursement; procedural deadlines

The Federal Administrative Court confirms the reimbursement claims for unaccompanied combined transport and clarifies the corresponding procedural deadlines. Applications for reimbursement must be submitted on time and must fulfil the legal requirements.

#Recent Developments

#Additional Performance Orders and Judicial Review of Norms

Judgment 2C_422/2014 of 18 July 2015 — Additional performance order; concrete judicial review of norms

The Federal Supreme Court confirms the competence for concrete judicial review of norms in LSVA disputes. Additional performance orders according to Art. 12 VStrR can be reviewed within the framework of LSVA procedures. The Federal Customs Administration is entitled to make additional demands if the original assessment was too low.

Judgments 2C_424/2014 and 2C_425/2014 of 18 July 2015 — Parallel cases to additional performance orders

The Federal Supreme Court deals with questions of additional performance orders for the LSVA in several parallel procedures. The uniform case law confirms the legality of the administrative approach with correct legal foundations.

#Summary of Case Law

The case law on Art. 85 BV confirms the constitutional anchoring of the LSVA as an instrument for cost truth in transport. The Federal Supreme Court recognises the wide discretionary scope of the Federal Council in tariff design and confirms the inclusion of traffic delay costs as external costs. The reimbursement regulations for combined transport are assessed as constitutionally compliant and transport-politically appropriate. In the enforcement area, differentiated case law is developing on criminal offences, procedural law and control powers of the customs administration.