# C_2008037EN.01001101.xml

| 9.2.2008 | EN | Official Journal of the European Union | C 37/11 |
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9.2.2008

EN

Official Journal of the European Union

C 37/11

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Action brought on 26 November 2007 — Commission of the European Communities v Republic of Austria

(Case C-524/07)

(2008/C 37/14)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima, acting as Agent)

Applicant:

Defendant: Republic of Austria

Defendant:

Form of order sought

| — | Declare that, by not registering as a matter of principle older imported used vehicles which were registered in another Member State, but do not comply with certain Austrian provisions on exhaust emissions and noise protection, whereas vehicles of the same construction which have already been registered in Austria are exempt from those requirements in cases of re-registration, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 30 EC; |
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Declare that, by not registering as a matter of principle older imported used vehicles which were registered in another Member State, but do not comply with certain Austrian provisions on exhaust emissions and noise protection, whereas vehicles of the same construction which have already been registered in Austria are exempt from those requirements in cases of re-registration, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 30 EC;

| — | order the Republic of Austria to pay the costs. |
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order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Under Article 28 EC, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. All rules or measures enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an equivalent effect to quantitative restrictions.

Under the provisions of the Austrian Law on Motor Vehicles, older imported used cars which were registered in another Member State, but do not comply with certain Austrian provisions on exhaust emissions and noise protection, are not, as a matter of principle, granted registration in Austria, although vehicles of the same construction which have already been registered in Austria are exempt from those requirements in cases of re-registration. The Republic of Austria has therefore failed to fulfil its obligations under Articles 28 EC and 30 EC.

National rules which make the first registration in that Member State of motor vehicles which have previously been registered in another Member State contingent upon compliance with certain limits in respect of noise and exhaust emissions, which are stricter than the applicable provisions of secondary Community law, are capable of restricting intra-Community trade. In addition, that restriction on trade constitutes discrimination against foreign products as the stricter limits do not have to be complied with by domestic used vehicles, which are re-registered after a change of owner. Furthermore, the Austrian provisions do not make provision for registered vehicles to be taken off the road if they do not comply with the limits in respect of exhaust emissions and noise protection, which are applied in respect of single vehicle approvals of imported vehicles.

The applicability of the Treaty provisions on the free movement of goods is not precluded in the present case by other specific rules. First, the provisions of Directive 93/59/EEC and Directive 92/97/EEC, which establish certain standards for emissions and noise and to which Austrian law refers with regard to the limits to be complied with, do not apply to vehicles which were brought into circulation in a Member State before the respective dates specified in those directives. Secondly, point 1 of Annex II to the EEA Agreement cannot be used to assess situations which, like the import of a motor vehicle from another Member State into Austria at a time when both Austria and the other Member State belonged to the Community, are covered exclusively by Community law.

Restrictions on intra-Community trade may be justified on the grounds specifically mentioned in Article 30 EC or on other overriding grounds of public interest. The rules in question must be suitable, necessary and proportionate and the restrictions must not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

There is, however, no such justification for the restriction on trade in the present case. It is not possible to rely on grounds of health or environmental protection in order to refuse to register imported vehicles if the re-registration of used vehicles of the same construction which have already been registered in Austria is not refused on those grounds. In addition, according to the Commission, there are less restrictive measures which may be used to ensure the transition to vehicles which are more favourable in terms of emission and noise. The achievement of health and environmental protection objectives exclusively to the detriment of imported vehicles is not, however, compatible with the principles of the free movement of goods.

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