Is free-flow the future of French motorway tolling?

Unlike several other countries where the motorway networks are highly developed, the French system has yet to introduce free-flow tolling technology to its traffic lanes, ie lanes without physical barriers. Technical progress over the past two decades has made the shift to free-flow a realistic prospect for French authorities and their concessionaires. Thanks to coming changes to the French and European legal frameworks, the stars seem to be aligned for the development of this innovative and modern fee-collection system on French motorways.

Free-flow tolling, also known as cashless tolling, refers in substance to the collection of tolls from road users and users of other transportation facilities such as bridges, tunnels, etc, that can aid cruising without the presence of toll gates.

The free-flow market is characterised by a diversity of systems – AET (All Electronic Tolling), ORT (Open Road Tolling), MLFF (Multi Lane Free Flow), etc, all of which aim to eliminate toll plazas and booths from tolled transportation facilities. Among those systems, a wide range of technologies may be used to identify the vehicle and/or the user subject to the payment of toll, such as the automatic number plate recognition system, the DSRC (Dedicated Short-Range Communications)¹ toll badges (badges de télépéage) or the use of an on-board unit ("OBU") such as the RFID (Radio Frequency Identification)² sticker, to mention just the most common tools.

Beyond the diversity of systems and technologies, free-flow tolling consists of various roadside devices (gantries, cameras, sensors, laser, etc) which can detect and categorise the vehicles using the road. In cases where the vehicle is equipped with a toll badge or an OBU, the relevant transit information for the payment of the toll is automatically transferred to and processed by the electronic system. Otherwise, vehicles without badges or OBUs can be automatically recognised by their number plate via cameras and sensors installed on overhead gantries. Thanks to vehicle registration databases, the owner can be identified and the payment completed either when the vehicle passes through the gantry or afterwards, depending on the system and technology used.

Free-flow tolling is a key driver for the modernisation of tolling systems and equipment allowing for both the identification of vehicles and automatic payment without stopping or even slowing down. It is an efficient system to reduce congestion at the plazas by allowing more vehicles per hour or per lane. Rapid throughput and decreased congestion also reduce the emission of pollutants and the proliferation of greenhouse gases. By reducing the number of stops along toll roads, the free-flow system also reduces the environmental impact of vehicle traffic.

Conversely, the disadvantage of free-flow consists primarily in the high risk of fraud or leakage, as the non-payment of tolls due by certain road users is facilitated in the absence of motorway toll gates with barriers. The risk of toll evasion is even greater as regards foreign road users, ie those who are not domiciled or whose vehicle is not registered in the country where the toll collection system is performed.

France is lagging behind

Free-flow tolling systems, largely developed in North America, are also being used in various other countries. The first free-flow tolls considered as really innovative were established in California on State Route 91 in 1995 (AET system), followed by Melbourne in 1996 and Canada in 1997. Many other systems have since been implemented on other road facilities (bridges, tunnels) and extended motorway networks, in certain cases for specific types of vehicles only, eg heavy goods vehicles.

In Europe, free-flow tolling systems while not widespread have already been implemented in several countries. Portugal was one of the first countries to introduce a free-flow system for imposing tolls on all vehicles. On the former SCUT roads (Sem Custos para o Utilizadors) the user is charged in a MLFF environment using either OBUs or video tolling mechanisms based on post-pay mode (allowing the road user to pay the toll after the transaction has been registered) and, as the case may be, pre-pay mode (whereas the user account is charged with an amount that is then decreased over time as long as the user is travelling across the network). In the Czech Republic, the electronic tolling system is based on DSRC technology, also applied in MLFF tolling. Another example of an MLFF tolling system is the M50 motorway to the west of Dublin in Ireland: since 2008, on the so-called West-Link, tolling has been by means of number plate recognition via overhead gantries.

In France, the motorway toll system is mainly based on the distance travelled and depends on the type of vehicle. Tolls can be paid (i) with automatic equipment by cash, credit card, or (ii) with electronic toll collection equipment handling toll badges and OBUs without the need to stop but with reduced speed limit at toll plazas equipped with physical barriers. Until very recently, no free-flow tolling system was in operation. Only a few projects had emerged including a technical experiment in 2009 on the A8 motorway in order to test the reliability of licence number plate recognition equipment.

Wind of change

However, things are moving fast. There are clear signals that the free-flow market is going to take off. Certain free-flow pilot projects are in place and others are about to be launched. Since 13 February 2019, users of the A10 motorway operated by Vinci can pay the toll using new lanes equipped with portals and cameras without any physical barriers. Those dedicated lanes may in principle be used solely by the vehicles equipped with a toll badge, failing which the cameras installed on the overhead gantries can identify the vehicles by reading their licence plate number. Given the right of the motorway concessionaire to access the national vehicle registration system (see below), the owner of the corresponding vehicle will be invoiced afterwards. At this experimental stage, the vehicle's speed is limited to 30 mph below the gantries for safety reasons. However, the installed cameras can still read the licence plate number of the vehicles exceeding such speed limit.

In addition, in the course of March 2019, the A4 motorway operated by Sanef will also be equipped with a free-flow tolling system in order to ease traffic flow and facilitate travel. Vehicles that are equipped with a toll badge will be detected and identified by the motorway equipment that collects all the information required to calculate the tariff, charge the account and then produce a bill. As the toll badge is not mandatory, motorway users may be charged in two different ways: (i) through a RFID sticker affixed on the windscreen; this sticker may be obtained freely from the concessionaire but its use will be limited to this specific motorway section (unlike the toll badge); and (ii) a post-payment through the licence plate number recognition system.

It is also expected that a motorway junction on the A837 operated by Vinci will be equipped before the summer of 2019 with an overhead gantry including smart cameras and laser caption systems.

The impetus for change has not only come from French motorway concessionaires. The ministry of transport is also now fostering the development of free-flow tolling on motorways. In the context of the on-going tendering process for the award of a major motorway concession contract known as the RCEA (Route Centre-Europe Atlantique) project, the bidders were requested to submit two offers, one based on a classic toll-collection system with barriers and the other involving a free-flow tolling solution.

At the same time, it appears that there is clear political support to amend and improve the regulatory framework in favour of the development of free-flow in France. This is reflected in particular in the draft bill providing guidelines for internal transport (projet de loi d'orientation des mobilités) which is currently under discussion before the French Parliament.

Coming change of the French regulatory framework

The current regulatory framework does not prohibit the use of a free-flow tolling system on motorways, as demonstrated by past experience and recent pilot projects.

Based on decisions of the National Commission for Data Protection and Freedoms (Commission nationale de l'informatique et des libertés or CNIL) and pursuant to the provisions of a decree dated 3 January 2013, the sworn officers of motorway concessionaires have been entitled to use video protection systems to detect and record traffic offences such as toll evasion. Since the use of such devices involves the processing of personal data (ie, identification of individuals through the licence number plate of their vehicles), their implementation was subject to the issuance of an authorisation from the CNIL.

Given the risk of toll evasion resulting from the removal of physical barriers in a free-flow environment, it is necessary to take appropriate measures to discourage road users from avoiding toll payment even if they had no intention to do so. Indeed the loss of revenue is expected to increase with a toll evasion recovery rate estimated to be around 5 per cent in the context of a free-flow tolling system comparing to 0.02 per cent in the current context.

The measures provided in the draft bill will primarily aim at completing and consolidating certain legal provisions adopted several years ago in favour of the development of free-flow tolling systems.

In the so-called Grenelle II law (loi n°2010-788 du 12 juillet 2010 portant engagement national pour l'environnement), the sworn officers of motorway concessionaires have been authorised to access the national vehicle registration system to help them identify the holders of the vehicle registration certificates to then improve the prosecution of offenders. This law also created an amicable procedure (procédure transactionnelle) pursuant to which, in case of default of toll payment, an amicable settlement may be proposed by the sworn officers of motorway concessionaires to the holder of the vehicle registration certificate (deemed as the offender). This settlement takes the form of a payment notice of an amount equal at least to the amount of the unpaid toll plus fixed compensation (EUR 20). The offender benefits from a two-month period to accept settlement and pay the amount due to the motorway concessionaire. Absent any payment within two months, the holder of the vehicle registration certificate becomes automatically liable to an increased fixed fine (EUR 75) to be recovered by the French Treasury. In practice, the entry into force of this amicable procedure has had a strong impact on the toll evasion rate which has significantly decreased, up to 80/90 per cent".

The efficiency of this mechanism probably explains that the upcoming regulatory framework relies on an adaptation of the existing amicable procedure to a free-flow environment: in case of traffic offence evidenced by free-flow technological tools, and provided that the driver has not used any of the payment modes proposed to road users before or after the travel, the offender will have a 15-day period to pay the toll due as well as a reduced fixed fine (circa EUR 5). The rationale behind this procedure is to allow the regularisation of the toll payment, considering in particular the risk of unintentional toll evasion during the implementation of new free-flow systems.

In addition, the draft bill provides for a new criminal offence which aims at punishing severely the "usual" offenders, namely those drivers who evade toll payments on a regular basis. According to the draft bill, a driver will be deemed a "usual" offender in the case where he has been subject to more than five fines for having eluded the toll payment on a period equal to or less than 12 months. In such a case, the "usual" offender shall be liable to a fine of up to EUR 7,500. A powerful tool to encourage compliance with the scheme rules is indeed to set the penalties for non-compliance in such a way that it deters opportunist drivers from evading the toll.

Those measures will certainly have an effect on road users whose vehicles are registered in France, as the sworn officers of motorway concessionaires may easily identify the offenders given the right they have to access the national vehicle registration system. However, the question remains open for violators who are not domiciled in France, and more specifically for those whose vehicles are not registered in France. This issue being not specific to France, a proposed directive is currently under discussion at European level to facilitate cross-border exchange of information on the failure to pay road fees in the EU.

Improvement of the European regulatory framework

Prosecution of foreign offenders is a key challenge in the context of a free-flow environment. The absence of a legal basis to access foreign vehicle registration systems appears as a loophole that is masterfully exploited in France. According to French motorway concessionaires, 37 per cent of toll gates being forced in 2016 were forced by foreign vehicles (whose part in the total traffic is however only 15 to 20 per cent).

Under applicable regulations, there is not currently any efficient procedure allowing French motorway concessionaires, nor even French public enforcement authorities, to obtain the relevant information on foreign road users in the case of toll evasion by the latter.

The Vienna convention on road traffic of 8 November 1968 which aims at facilitating international road traffic and improving road safety certainly provides for cross-border exchanges of information in case of serious road traffic offence but toll evasion does not fall within the scope of the definition of such offences.

Equally, the EU directive 2004/52 of 29 April 2004 on the interoperability of electronic road toll systems in the Community does not provide any mechanism to ease the exchange of information between Member States. In addition, the EU directive 2015/413 of 11 March 2015 facilitating cross-border exchange of information on road safety related traffic offences is not applicable in the case of toll evasion.

This explains why a proposed directive 2017/0128 repealing the directive 2004/52 is currently under discussion to facilitate cross-border exchange of information on the failure to pay road fees in the EU. According to its provisions, in case of toll evasion, the Member State shall grant other Member States' national contact points access to the following national vehicle registration data, with the power to conduct automated searches thereon: data relating to vehicles and data relating to the owners or holders of the vehicle.

This new regulatory framework, once adopted by EU institutions and implemented into French law, should improve the prosecution of foreign offenders by French public authorities in the absence of a common and harmonised vehicle register at European level.

This can be considered as a first step though as it is not clear that it will be sufficient to eliminate the risk of toll evasion from a motorway concessionaire's perspective. Indeed, even if the fraud is confirmed and the violator is identified then the motorway concessionaires have to find a solution to effectively recover the due toll and penalties, which is at this stage rendered difficult once the violator has left the country.

French free-flow market expected on semi-urban motorways first

Given the remaining high risk of toll evasion even after implementation of the above-mentioned regulatory changes, we can expect that motorway operators will first install free-flow tolling equipment on semi-urban motorway sections where the evasion rate is lower, as they are being used by regular users whose identity is easily traceable (home to work travel). It is not by chance that the pilot projects that have been selected by French motorway concessionaires are located in semi-urban environments which appear as less risky areas. The French motorway network is primarily operated under long-term concession contracts by the subsidiaries of three major concession groups (Abertis, Eiffage Vinci); the development of a free-flow collection system will then be a matter for those concessionaires in the coming months and years.

It is only in a second stage that those concessionaires might deploy the new toll collection system to the wider motorway network including transit areas used by foreign drivers. However, in the meantime, as is the case for the RCEA project, the next greenfield motorway concession contracts to be tendered by the French State (such as the Rouen bypass or the Toulouse-Castres motorway) are likely to include the provision by the bidders of free-flow tolling solutions or, at least, should not prevent them from proposing offers based on such tolling system. These projects will be an opportunity for European free-flow operators to promote their experience and enter the French motorway concession market.