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Essent 2.0. The CJEU surprisingly does distinguish. Support for renewable, ‘green’ energy not entirely carte blanche.
Excuse the attempt at pun in the title (which readers may have even missed. ‘Green’ v carte ‘Blanche’. It’s Thursday, and these are busy weeks). Apologies also to the readers who are new to the debate. The legality of support schemes for renewable energy EU law has occupied mine and others’ mind for a little while now. One may want to refer eg to my paper on the Vindkraft et al judgment or to various postings on this blog. Specifically, for the latter, my post on the AG’s Opinion in Essent 2.0, case C-492/14., judgment issued today.
Bot AG had opined, very very reluctantly, that the Court’s case-law meant that Flanders could indeed reserve the benefit of the free distribution of electricity produced from renewable energy sources solely to generating installations directly connected to the distribution systems located in Flanders, thereby excluding generating installations located in other Member States.
The Court itself has now distinguished its own case-law: the EU has not harmonised the national support schemes for green electricity; this means that it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory. However the Court’s sympathy is now limited to schemes that support producers only. Green energy support schemes, whose production costs seem to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, are inherently designed in particular to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity (at 110, with reference to Vindkraft).
However it is not the purpose of the Flemish scheme to give direct support to producers of green electricity. Rather, the free distribution of green electricity constitutes a financial advantage conferred primarily on the supplier of such electricity, which may, in certain circumstances, depending notably on the sale price which the consumer is charged by the supplier for his electricity, to a certain extent and indirectly also benefit the consumer (at 112).
Such a support mechanism offers no certainty that the economic advantage thus obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, particularly the smallest local generating installations which the Flemish Region claims to have wanted to support, which are not both producers and suppliers (at 113).
The Court is not game to assist the AG with his call for an explicit recognition of the potential to use discriminatory measures within the context of mandatory requirements (the implications of Cassis de Dijon). That is a pity, but not a surprise.
Overall, the Court’s judgment is a welcome safeguard to its more open-ended sympathy for renewable energy support schemes. Those who challenge such schemes in future, know what to do. They need to show that there is no certainty that the economic advantage obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, as opposed to distributors or consumers.
Next-up: a reversal of T-351/02 Deutsche Bahn?
Ach no! CJEU distinguishes rather than extinguishes its Preussen Elektra case-law in Germany v EC. State aid for renewable energy.
The rather long judgment in T-47/15 Germany v Commission is neatly summarised by the CJEU here. I have reported before on both the State Aid and the free movement implications of the Court’s seminal findings in Preussen Elektra. In current case, the Court essentially upholds the EC’s finding of the more recent German regime amounting to illegal State aid and incompatibility with the Internal Market – in contrast with its earlier findings in Preussen Elektra.
Disappointingly, Preussen Elektra was distinguished rather than its merits called into question. Rather like Advocate-General Bot I stubbornly insist that Preussen Elektra is bad case-law and I continue to call upon the Court to scrap its findings in same.
‘We did not like it. Not one little bit!’ Bot AG reads Dr Seuss in Essent 2.0.
I was reminded of the line, reading Bot AG’s Opinion in Case C-492/14, ‘Essent 2.0’ (not yet available in English at the time of writing). In order to promote the generation of renewable energy, Flanders law makes transmission of electricity generated from renewable sources, free of charge. However this courtesy is limited to electricity generated in installations directly connected to the grid. Essent imports (a considerable part of) its green electricity from The Netherlands. It does not therefore enjoy free transmission.
Bot’s disapproval of trade restrictions like these is well established and has often been reported on this blog. The CJEU disagrees with its AG on many of the issues. I am in general of the same view as the AG. Mr Bot continues to find the Court’s case-law unconvincing and makes no attempt to hide it. He repeatedly mentions that he is duty-bound to apply Essent /Vindkraft without believing they are good law. It is with obvious regret that he Opines that given the Court’s stand in Essent /Vindkraft, he has no option but to propose that the Court find the Flemish regime acceptable.
The AG does however leave open a future window for change: in particular, if and when the secondary law regime on renewable energy specifically, and energy as a whole, is amended, one may be able to distinguish Essent /Vindkraft.
Bot also reminds us of the unclear position of environmental exceptions under Article 36 TFEU and the Rule of Reason. He calls upon the Court formally to acknowledge that the Cassis de Dijon distinction between the Rule of Reason and Article 36 (the former does not allow ‘distinctly applicable’ national measures (read’ discrimination) while the latter does) no longer exists.
I do not like judgment in Preussen Elektra. Or in Essent. Not one little bit. It discourages the creation of a true European energy market. Perhaps the Court will surprise us all in Essent 2.0 and will correct some of the damage it has done with its standing case-law on the matter.
Cheers to that! The CJEU on excise duties, alcohol, packaging and regulatory autonomy in Valev Visnapuu.
Postscript 10 December 2015 For a similar exercise, see Sharpston AG in C-472/14 Canadian Oil.
Less is sometimes more so I shall not attempt to summarise all issues in Case C-198/14 Valev Visnapuu. The case makes for sometimes condensed reading however it perfectly illustrates the way to go about dealing with obstacles to trade put in place for environmental, public health or, as in this case, both reasons.
Mr Visnapuu essentially forum shops Estonia’s lower prices on alcohol by offering Finnish clients home delivery of alcoholic beverages purchased there. No declaration of import is made to Finish customs and excise, thereby circumventing (accusation of course is that this is illegal) a variety of excise duties imposed for public health and environmental reasons, as well as a number of requirements relating to retail licenses and container requirements (essentially a deposit-return system) for beverages.
Confronted with a demand to settle various tax debts, as well as with a suspended prison sentence, Mr Visnapuu turns to EU law as his defence in a criminal proceeding. The CJEU then had to settle a variety of classic trade and environment /public health questions: whether the packaging and packaging waste Directive is exhaustive on the issue of deposit-return system (answer: no and hence the system additionally needs to be assessed vis-a-vis EU primary law: Article 34 ff TFEU or Article 110 TFEU); whether in the context of that Directive excise duties on packaging may be imposed (yes) and packaging integrated into a functioning return system exempt (yes; in the absence of indications that imported systems are less likely to enjoy the exemption); whether the relevant excise duties fall under Article 34 ff TFEU or Article 110 TFEU (answer: it is part of an internal system of taxation hence needs to be judged vis-a-vis Article 110 TFEU); and finally whether the retail licence requirement needs to be judged viz Article 34 or Article 37 TFEU (answer: mixed, given the various requirements at stake). Final judgment on proportionality is down to the Finnish courts.
Readers in need of a tipple would be advised to postpone until after reading the judgment. Again though the case shows that if one keeps a clear head, classic structures of applying EU law go a long way in untangling even complex matters of law and fact.

matches: CJEU CJEU CJEU CJEU CJEU CJEU


(1) "Crossing" shall include a bridge or bridges over the Delaware River or a tube or tubes under said River and all approaches thereto and approach highways and all other buildings or structures connected with any such bridge or tube and all equipment essential to the operation thereof and also all property rights, easements and franchises relating thereto and deemed necessary or convenient for the construction or operation thereof and may include any elevated or depressed highways connecting any such bridge or tube with a state road.
(2) "Department" means the Department of Transportation established under this title, or if said Department shall be abolished, any board, commission or officer succeeding to the principal functions thereof, or to whom the powers given by this chapter to said Department shall be given by law.
(3) "Revenues of the Division" means the proceeds of tolls, rates, rents and other charges for the use of toll crossings constructed by the Division under authority of this chapter, including, upon the satisfaction of the indenture and supplemental indentures securing the payment of all bonds issued prior to July 27, 1955, under the authority of 45 Del. Laws, c. 275, as provided by § 414 of this title, the proceeds of tolls, rates, rents and other charges for the use of the Delaware Memorial Bridge.
Substantial and accumulated annual increases experienced in highway traffic for the United States as a whole and particularly for Delaware plus the concentration of interstate traffic flow through Delaware caused by the construction of the Delaware Memorial Bridge and the New Jersey Turnpike have forced upon the State the need for new construction and reconstruction of highway facilities out of all proportion to funds available to the State Highway Department. Presently scheduled express highway construction in the adjoining states of Maryland and Pennsylvania will very shortly bring to the boundaries of Delaware increased interstate traffic. To provide supplemental funds for certain highway construction and reconstruction, to provide for payment of a proportionate share of such highway construction and reconstruction costs by the interstate traffic which is producing the need for such added expenditures and to enable the State to discharge the obligations which this traffic has imposed upon it, the Delaware Memorial Bridge Division of the State Highway Department (originally created as the Delaware Crossing Division under authority of 47 Del. Laws, c. 193, which as amended and revised appears as Chapter 3 of this title) is reorganized and reconstituted within the Department of Transportation with the powers and duties specified in this chapter.
§ 403 Control, operation and revenues of Delaware Memorial Bridge and approaches vested in Department.
The control, operation, tolls and other revenues of the Delaware Memorial Bridge and its approaches, and all of the real and personal property appurtenant thereto or used in connection therewith, shall vest in the Department subject to the rights of the holders of outstanding Delaware Memorial Bridge Revenue Bonds of the State issued prior to July 27, 1955, under the authority of 45 Del. Laws, c. 275 as amended, and the State covenants that the control, operation, tolls and other revenues of said Delaware Memorial Bridge, its approaches and all real and personal property appurtenant thereto or used in connection therewith shall remain vested in the Department so long as said bonds or any bonds issued under the authority of this chapter shall remain outstanding and unpaid, or until all of the Delaware Memorial Bridge Revenue Bonds issued under authority of 45 Del. Laws, c. 275 as amended, have been paid in full or provision shall have been made for the payment thereof in the manner provided by the indenture between the Department and the Equitable Trust Company of Wilmington, Delaware, dated June 1, 1948, and the supplemental indentures between said Department and said Equitable Trust Company, dated June 1, 1951 and January 1, 1952, securing the payment of the Delaware Memorial Bridge Revenue Bonds now outstanding. The Delaware Memorial Bridge shall be operated and extensions and improvements made thereto and the tolls and revenue derived therefrom accounted for and applied in strict conformity with said indenture and supplemental indentures.
§ 404 Contracts for maintenance of Delaware Memorial Bridge or repairs or improvements.
The Department may make and enter into all contracts and agreements with any firm, corporation, public body or authority of this State or any other state which it may consider necessary to or advisable for the maintenance of the Delaware Memorial Bridge or for repairs or additions thereto or improvements thereon.
§ 405 Construction of toll crossings, highways, express highways and parallel service roads; operation of competitive commercial enterprises.
The Department may, with the approval of the Governor, construct toll crossings over or under the Delaware River between the State of Delaware and the State of New Jersey and may construct, reconstruct or improve such highways and express highways, as defined in § 101 of this title, in the State as the Department, in its sole discretion, designates necessary to carry traffic to and from the Delaware Memorial Bridge and to and from any other toll crossing constructed after July 27, 1955, or to be constructed, by the Department under this chapter, provided that no commercial enterprise or activity for serving motorists, other than emergency services for disabled vehicles, shall be conducted within or on any property designated as, or acquired for or in connection with any such express highway. The Department may construct on such property at locations it deems appropriate connecting service roads parallel to such express highways in such manner as to facilitate the establishment and operation of competitive commercial enterprises for serving motorists on private property abutting such service roads. The cost of such parallel service roads may be included in the cost of construction, reconstruction or improvement of expressways authorized in this chapter. In considering any construction, reconstruction or improvement of highways as herein authorized, the Department shall give first consideration to express highways for the use of traffic to and from the Delaware Memorial Bridge.
§ 406 Acquisition of property for toll crossings.
(a) The Department may purchase within this State and within the State of New Jersey, if permitted to do so by the laws of that State, such lands, sand, earth, gravel, stone, buildings, structures, rights-of-way, franchises, easements and other interests in land, including lands under water and riparian rights of any person, copartnership, association, railroad or other corporation or other municipality or political subdivision deemed by the Department to be necessary for the construction, maintenance or operation of any toll crossing which the Department may acquire, construct or maintain under this chapter upon such terms and at such prices as may be considered by it to be reasonable and can be agreed upon by it and the owner thereof and to take title thereto in the name of the State or, if such property so purchased be located in the State of New Jersey, to take title thereto in the name of the Department if permitted by the laws of the State of New Jersey to do so, or, in the discretion of the Department, to take such title in the name of an individual or a corporation as trustee for the Department. Whenever a price cannot be agreed upon or whenever the owner is legally incapacitated or is absent or is unable to convey valid title or is unknown, the Department may acquire by condemnation any of the above mentioned properties located within this State and deemed by the Department to be necessary as aforesaid for said purposes.
(b) Whenever valid title to any of the properties mentioned in subsection (a) of this section which are located in the State of New Jersey cannot be acquired by the Department in its own name or in that of the trustee or nominee by amicable agreement with the owner or owners and the Highway Commissioner of the State of New Jersey or other appropriate officer or agency of the State of New Jersey is willing to condemn, for the use of and to become a part of the highway system of the State of New Jersey, and such property deemed by the Department necessary for constructing, maintaining or operating any toll crossing which the Department may construct and maintain, if reimbursed for the condemnation money or damages awarded in such condemnation and expenses thereof, the Department may enter into an agreement of reimbursement with the Highway Commissioner of the State of New Jersey or such other appropriate officer or agency for such condemnation money or damages and expenses and to secure the same by a deposit of cash or otherwise and may reimburse said Highway Commissioner of the State of New Jersey or the State of New Jersey or other appropriate officer or agency thereof for all condemnation money or damages and costs legally awarded or incurred in such condemnation. When such property is so acquired by the Highway Commissioner of the State of New Jersey or other appropriate officer or agency of said State as a part of the highway system of that State, the Department may construct, maintain and operate thereon or thereunder any toll crossing which the Department may construct and maintain under this chapter as fully as though title thereto had been acquired by the Department. The Department shall pay all costs and expenses of acquiring such properties out of its unencumbered revenues or out of the proceeds of the sale of its revenue bonds.
§ 407 Use of lands under Delaware River.
The State of Delaware consents to the use by the Department, in any manner whatsoever in the performance of its duties under this chapter, of all lands lying under the waters of the Delaware River which are within the State and are deemed by the Department to be necessary for the construction and operation of the Delaware Memorial Bridge and of any other toll crossing which the Department may construct or maintain under this chapter.
§ 408 Regulations for use of Bridge or other toll crossings for public utility facilities; penalty for violations.
(a) The Department may establish regulations respecting the use of the Delaware Memorial Bridge and/or any other toll crossing which it may construct or maintain by this chapter by any person, partnership, association or corporation desiring to use said crossing, its approaches, appurtenances or any part thereof, including the approach highways connecting with such Bridge, for placing therein or thereon gas or oil pipe lines, telephone, telegraph and electric wires or cables or for any other purpose and to fix the terms, conditions and rates of charge for such use.
(b) Whoever violates any regulation established by the Department in respect of the use of any such crossing, including regulations established by the Department regulating traffic over any such crossing and its approaches or approach highways, shall be fined not more than $100 for each such offense.
The Department shall procure and keep in force adequate insurance upon any toll crossing constructed or operated by it, including adequate use and occupancy insurance as well as insurance to defray the cost of removing obstacles from the Delaware River in the event of a collapse or other injury to such crossing.
§ 410 Employment of general manager, guards and toll keepers; indemnity bond.
(a) The Department may employ a general manager for the purpose of supervising the operation of toll crossings constructed or maintained by it and may appoint such number of guards and toll keepers as may be deemed advisable by it for the proper operation of the Delaware Memorial Bridge and any toll crossing over the Delaware River constructed or maintained by the Department.
(b) The general manager, guards and toll keepers shall have the powers of a constable in the performance of their duties, and the Department shall procure and keep in force at all times a fidelity bond or bonds issued by a bonding company qualified to do business in this State to protect the Department against loss arising from the fraudulent or dishonest conduct of any such persons with respect to funds or property of the Department or of the State within the control of the Department, and the Department may pay the costs of such bond or bonds out of its revenues.
§ 411 Other crossings prohibited.
(a) As long as any bonds issued prior to July 27, 1955, under 45 Del. Laws, c. 275, as amended, shall remain outstanding and unpaid or until provision shall have been made for the payment thereof as provided in the indentures securing such bonds, no bridge or tunnel over or under the Delaware River for the use of the traveling public or for the transportation of goods or other property, having a terminus in this State within the distance of 10 miles north along the shore of the Delaware River and 20 miles south along such shore of the Delaware terminus of the Delaware Memorial Bridge shall, after July 27, 1955, be constructed and operated by the State, by the Department or other agency of the State or by any county, municipal corporation or political subdivision of the State or by any agency or instrumentality thereof or by any public body or authority not created by an act of Congress of the United States or by any person, copartnership, association or corporation not created by or acting under authority of an act of Congress of the United States.
(b) The State covenants that if the Department shall issue bonds under this chapter, no crossing of the Delaware River shall thereafter be constructed and operated by the State, by the Department or by any other agency of the State or by any county, municipal corporation or political subdivision of the State or by any agency or instrumentality thereof or by any public body or authority not created by an act of Congress of the United States or by any person, copartnership, association or corporation not created by or acting under authority of an act of Congress of the United States, which shall compete with the Delaware Memorial Bridge or with any toll crossing over or under the Delaware River to be constructed in whole or in part out of the proceeds of such bonds, and the Department may agree with the holders of its bonds as to the character and location of any crossing which shall be deemed to be a competitive crossing within the meaning of this section, and such determination shall be binding upon the State and the Department, so long as any of such bonds remain outstanding and unpaid or until provision for their payment shall have been made in the manner provided in the resolution or indenture pursuant to which such bonds shall have been issued.
§ 412 Exemption from taxation.
All toll crossings constructed or operated and maintained by the Department under this chapter and all property acquired or used by the Department in connection therewith shall at all times be free from all taxation within this State.
§ 413 Bonds for construction of facilities.
The Department may issue, in the name of the State, revenue bonds of the State, payable solely from the revenues of the Department, for the purpose of paying the cost of construction (including interest during the period of construction and for 1 year thereafter) of any toll crossing which it may construct under this chapter or to defray the cost of constructing or improving highways, and for the purpose of refunding any bonds issued under this chapter, at or prior to the maturity thereof.
§ 414 Bonds for refunding of outstanding obligations.
The Department may issue, in the name of the State, revenue bonds of the State, payable solely from the revenues of the Department, at any time after July 27, 1955, for the purpose of refunding at or prior to maturity, all bonds issued prior to such date under the authority of 45 Del. Laws, c. 275, as amended, in an aggregate principal amount not exceeding the principal amount of said outstanding bonds and the redemption premium, if any, required to be paid upon their redemption prior to maturity, the fees and expenses of the trustee named in the indenture and supplemental indentures securing such bonds, the interest which will become due upon such bonds to the date of their redemption and all legal and other expenses incident to the issuance of said bonds, and the Department may deposit with the trustee named in the indenture and supplemental indentures securing the payment of said outstanding bonds, out of the proceeds of such refunding bonds, such amount as shall be required to authorize such trustee to satisfy such indenture and supplemental indentures.
§ 415 Form and terms of bonds; disposition of proceeds.
(a)(1) All bonds issued under the authority of this chapter shall be dated, shall bear interest at such rate or rates, not exceeding 5 percent per annum, payable semiannually, shall mature at such time or times and may be made redeemable before maturity at such times and at such price or prices and under such terms and conditions as may be fixed by the Department prior to the issuance of the bonds.
(2) The principal of and the interest upon such bonds may be made payable in any lawful medium.
(3) The Department shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest thereof, which may be any bank or trust company within or without the State.
(4)a. The bonds shall be signed by the Secretary of Transportation and the Great Seal of the State or a facsimile thereof shall be affixed thereto and shall be attested by the Secretary of State and any coupons attached thereto shall bear the facsimile signature of the Secretary of Transportation.
b. In case any officer whose signature or facsimile thereof shall appear on any bonds or coupons shall cease to be such officer before the delivery of such bonds, such signature or facsimile shall, nevertheless, be valid for all purposes, as if the officer had remained in office until delivery.
(5) All bonds issued under this chapter shall have, and are declared to have, all the qualities and incidents of negotiable instruments under Title 6.
(6) Such bonds and the income therefrom shall be exempt from all taxation by the State or by any political subdivision, agency or authority thereof.
(7)a. The bonds may be issued in coupon or registered form, or both, as the Department may determine, and provision may be made for the registration of any coupon bond as to principal alone or as to both principal and interest, and for the reconversion of any bonds registered both as to principal and interest into coupon bonds.
b. The Department may exchange such bonds for bonds issued under 45 Del. Laws, c. 275, as amended, or issued under this chapter or may sell such bonds either at public or private sale in such manner and for such price as it may determine to be for the best interests of the State, but no such sale may be at a price so low as to require the payment of interest on money received therefor at more than 5 percent per annum, computed with relation to the absolute maturity of the bonds in accordance with standard tables of bond values.
(c)(1) The proceeds of such bonds, exclusive of accrued interest, shall be used solely for the purposes specified in the resolution of the Department authorizing the issuance thereof, or as set forth in the indenture securing their payment, which purposes may include redemption premiums, interest on bonds to be refunded to the redemption date or date of maturity thereof and all legal and other expenses of their issuance and shall be disbursed under such restrictions, if any, as said resolution or trust indenture may provide.
(2) The proceeds of such bonds shall at no time revert to the General Fund of the State Treasury but shall at all times be available to the Department for the aforesaid purposes, provided, however, that if the proceeds of the bonds of any issue shall exceed the amount required for the purpose or purposes for which such bonds are authorized to be issued, the surplus may be used for any purpose of the Department authorized in this chapter or for the payment of the principal of or interest on its outstanding bonds.
(d)(1) Prior to the preparation of definitive bonds the Department may issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the latter.
(2) The Department may also provide for the replacement of any bond which shall become mutilated or be destroyed or lost.
(3) Such bonds may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions and things which are specified and required by this chapter.
§ 416 Bonds as legal investments for institutions and fiduciaries, and as legal deposit.
Bonds issued under the authority of this chapter are made securities in which all state and municipal officers and administrative departments, boards and commissions of the State, all banks, bankers, savings banks, trust companies, saving and loan associations, investment companies and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business, and all administrators, executors, guardians, trustees and other fiduciaries, and all other persons whatsoever, who now or may hereafter be authorized to invest in bonds or other obligations of the State, may properly and legally invest any funds, including capital belonging to them or within their control; and such bonds are made securities which may properly and legally be deposited with and received by any state, county or municipal officer or agency of the State for any purpose for which the deposit of bonds or other obligations of the State is now or may after July 27, 1955, be authorized by law.
§ 417 Credit of State not pledged.
Bonds issued under this chapter shall be payable exclusively from the revenues of the Department and shall contain a statement on their face that the state shall not be obligated to pay the bonds or the interest thereon except from such revenues, and that the faith and credit of the State are not pledged to the payment of the principal or interest on such bonds. The issuance of bonds under this chapter shall not directly or indirectly or contingently obligate the State to levy or pledge any form of taxation whatever therefor or to make any appropriation for their payment.
(a) In the discretion of the Department, each and any issue of such bonds may be secured by a trust indenture by and between the Department and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the State.
(b) Such trust indenture may pledge or assign the revenues of the Department, but shall not convey or mortgage any toll crossing or other properly operated or maintained by the Department.
(c) Either the resolution providing for the issuance of the bonds or such trust indenture may contain such provisions specifying, defining, protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the Department in relation to the acquisition, construction, improvement, maintenance, operation, repair and insurance of any toll crossing or additions thereto, and the custody, safeguarding and application of all moneys, and may also provide that any toll crossing constructed by the Department shall be constructed and paid for under the supervision and approval of consulting engineers employed or designated by the Department, and satisfactory to the original purchasers of the bonds issued therefor, and may also require that the security given by contractors and by any other depository of the proceeds of the bonds or revenues or other moneys be satisfactory to such purchasers.
(d) It shall be lawful for any bank or trust company incorporated under the laws of this State to act as such depository and to furnish such indemnifying bonds or to pledge such securities as may be required by the Department.
(e) Such indenture may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action of bondholders as is customary in trust indentures securing bonds and debentures of corporations.
(f) In addition to the foregoing, such trust indenture may contain such other provisions as the Department may deem reasonable and proper for the security of the bondholders.
(g) All expenses incurred in carrying out such trust indenture may be treated as a part of the cost of maintenance, operation and repairs of any toll crossing to which such indenture is related or may be paid out of the revenues of the Department.
§ 419 Remedies of bondholders and trustees.
Any holder of bonds issued under this chapter or any of the coupons attached thereto and the trustee under the trust indenture, if any, except to the extent the rights given by this chapter may be restricted by resolution passed before the issuance of the bonds or by the trust indenture, may, either at law or in equity by suit, action, mandamus or other proceedings, protect and enforce any and all rights under the laws of the United States or of the state or granted under this chapter or under such resolution or trust indenture, and may enforce and compel performance of all duties required by this chapter or by such resolution or trust indenture, to be performed by the Department or any officer thereof, including the fixing, charging and collecting of tolls for the use of any toll crossing operated by the Department.
Such resolution or trust indenture may contain provisions under which any holder of such bonds or the trustee under such trust indenture shall be entitled to the appointment of a receiver in the event of a default, and any receiver so appointed shall have and be entitled to exercise all the rights and powers of the Department with respect to the crossings operated or maintained by the Department and all of the appropriate rights and powers of a receiver in equity.
§ 420 Power to collect and pledge tolls and revenues; fixation of tolls, rates or charges.
(a) The Department may make and enforce such rules and regulations and establish, levy and collect (or authorize by contract, franchise, lease or otherwise, the establishment, levy and collection of) such tolls, rents, rates and other charges for the use of any toll crossing operated by the Department or any improvements or extensions thereof as it may deem necessary, proper, desirable and reasonable, and the Department may pledge such tolls, rates, rents and other revenues, or any part thereof, either presently received or to be received in the future, or both, as security for the repayment with interest of any moneys borrowed by it or advanced to it and as security for the satisfaction of any other obligation assumed by it under the authority of this chapter.
(b) Such tolls, rates, rents and other charges shall be so fixed and adjusted so as to provide funds at least sufficient, together with any other revenues of the Department, to pay the cost of maintaining, repairing and operating the toll crossings operated and maintained by the Department, and the principal of and the interest upon the outstanding revenue bonds of the Department, subject, however, to any applicable law or regulation of the United States of America now in force or enacted or made after July 27, 1955. Such tolls and all other revenues of the Department shall not revert to the General Fund of the State Treasury but shall at all times be available to the Department for the purposes set forth in this chapter. Such tolls, rates, rents or other charges shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the State.
(c) The Department shall not impose, establish, levy or collect a toll that it would otherwise be permitted to impose, establish, levy or collect under this section, for any emergency vehicle of a volunteer fire company or volunteer ambulance company, or any emergency vehicle engaged in the ordinary course of business of a volunteer fire company or a volunteer ambulance company.
(d) The Department shall not impose, establish, levy or collect a toll that it would otherwise be permitted to impose, establish, levy or collect under this section for any emergency vehicle of a police agency, including marked, semi-marked or unmarked vehicles, engaged in the ordinary course of business of a state, county or municipal police agency.
The Department, in addition to the moneys which may be received from the sale of bonds and from the collection of tolls and other revenues derived under this chapter, shall have authority to accept from any federal agency or other public or private body, or from any other source, grants or contributions of money or property for or in aid of the construction, maintenance or operation of the toll crossings maintained and operated by it or for or in aid of the construction, reconstruction or improvement of any highway which is authorized by this title, or for the payment of its bonds.
§ 422 Moneys as trust funds.
All moneys received pursuant to this chapter, whether as proceeds from the sale of bonds or grants or other contributions, or as tolls and revenues, shall be deemed to be trust funds, to be held and applied solely as provided in this chapter. The Department shall, in the resolution authorizing the issuance of bonds or in the trust indenture, provide for the payment of the proceeds of the sale of the bonds and the tolls and revenues to be received, to any officer, agency, bank or trust company, who shall act as trustee of such funds, and shall hold and apply the same to the purposes of this chapter, subject to such regulations as this chapter and such resolution or trust indenture may provide.
§ 423 State covenant for control of crossings.
The State covenants and agrees with the holders of any of the bonds issued by the Department under this chapter, for which there may be pledged the revenues of the Department or any part thereof, that so long as said bonds or obligations remain outstanding and unpaid and unless and until adequate provision is made by law for the protection of the persons advancing money upon such obligations, the State will not diminish or impair the power of the Department or of any successor thereof to operate or control any toll crossing constructed or maintained and operated by it, including the Delaware Memorial Bridge or to establish, levy and collect tolls, rates, rents or other charges in connection therewith.
§ 424 Pecuniary interest of member or employee; penalty.
Whoever, being a member or employee of the Department, is directly or indirectly pecuniarily interested in any contract or subcontract made in connection with the construction, improvement, repair, operation or maintenance of any toll crossing operated or maintained by the Department shall be fined not more than $1,000 or imprisoned not more than 2 years or both.
§ 425 Penalty for nonpayment of toll.
Whoever uses or attempts to use any toll crossing operated or maintained by the Department without paying the toll at the rate then in force for such use, shall be fined not more than $100 or imprisoned not more than 30 days or both.
§ 426 Construction of chapter.
This chapter shall be liberally construed to carry its purposes into effect.