Opinion of the Advocate General — ECLI:EU:C:2003:438
Date: 2003-09-09
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Acts of the institutions — Directives — Direct effect — Possibility of relying on a 
directive against a legal person governed by private law, controlled by the State, and 
entrusted with the task of levying tolls for the use of public road networks 
(Art. 249, third para., EC) 
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SUMMARY — CASE C-157/02 
2. Transport — Road transport — Tax provisions — Harmonisation of laws — 
Directives 93/89 and 1999/62 — Tolls and charges for the use of certain infra­
structures — Direct effect of the prohibition of discrimination on grounds of the 
haulier's nationality or of the vehicle's origin or destination — Principle of the link 
between the toll charges and infrastructure costs having no direct effect 
(Council Directives 93/89, Arts 7(b) and (h), 8(2) (e) and 9, and 1999/62, Arts 7(4) and 
9) 
3. Transport — Road transport — Tax provisions — Harmonisation of laws — 
Directive 93/89 — Tolls and charges levied for the use of certain infrastructures — 
Directives 93/89 and 1999/62 — Tolls and charges for the use of certain infra­
structures — Prohibition of discrimination on grounds of the haulier's nationality or 
of the vehicle's origin or destination — Applicable to national hauliers 
(Council Directives 93/89, Arts 7(b) and 1999/62, Art. 7(4)) 
4. Transport — Road transport — Tax provisions — Harmonisation of laws — 
Directive 93/89 — Taxes on certain vehicles used for the carriage of goods by road 
and charges for the use of certain infrastructures — Judgment of the Court of Justice 
annulling that directive — Effect 
(Art. 231, second para., EC; Council Directives 93/89 and 1999/62) 
5. Transport — Road transport — Tax provisions — Harmonisation of laws — 
Directive 1999/62 — Charging of heavy goods vehicles for the use of certain 
infrastructures — Effects of the directive before expiry of the period for trans­
position — Member States required not to adopt measures liable to compromise the 
result prescribed by the directive — Direct effect — None 
(Art. 10, second para., EC and Art. 249, third para., EC; Council Directive 1999/62) 
1. When contracts are concluded with 
road users, the provisions of a directive 
capable of having direct effect may be 
relied upon against a legal person 
governed by private law where the 
State has entrusted to that legal person 
the task of levying tolls for the use of 
public road networks and where it has 
direct or indirect control of that legal 
person. 
(see para. 29, operative part 1) 
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RIESER INTERNATIONALE TRANSPORTE 
2. Article 7(b) of Directive 93/89 on the 
application by Member States of taxes 
on certain vehicles used for the carriage 
of goods by road and tolls and charges 
for the use of certain infrastructures 
and Article 7(4) of Directive 1999/62 
on the charging of heavy goods vehicles 
for the use of certain infrastructures 
which prohibit any discrimination, 
whether direct or indirect, on the 
ground of the haulier's nationality or 
of the vehicle's origin or destination in 
the imposi t ion of tolls and user 
charges, may be relied on before the 
national courts by individuals against 
State authorities so far as concerns the 
calculating of tolls for vehicles having a 
laden weight of at least 12 tonnes used 
for the carriage of goods when the 
directives have not been transposed, or 
have been imperfectly transposed, into 
domestic law. 
Article 7(h) of Directive 93/89 and 
Article 7(9) of Directive 1999/62, in 
contrast, which provide respectively for 
toll rates and weighted average tolls to 
be related to the costs of constructing, 
operating and developing the infra­
structure network concerned, may not 
be relied upon by individuals against 
State authorities, for they set the 
Member States general guidelines for 
calculating toll dues, but do not pro­
vide any specific mode of calculation 
and leave the Member States very 
broad discretion in that regard. 
(see paras 35-36, 38, 
40, 4 1 , 44, operative part 2) 
]. Like the hauliers of the other Member 
States, national hauliers may rely, as 
against their State, on the prohibition 
of discrimination, whether direct or 
indirect, laid down in Articles 7(b) of 
Directive 93/89 on the application by 
Member States of taxes on certain 
vehicles used for the carriage of good 
by road and tolls and charges for the 
use of certain infrastructures and 
Article 7(4) of Directive 1999/62 on 
the charging of heavy goods vehicles 
for the use of certain infrastructures. It 
is in order to avoid any form of 
distortion of competition as between 
transport undertakings in the Member 
States that those provisions prohibit, in 
the application of user charges and 
tolls, not only discrimination based 
directly or indirectly on the nationality 
of hauliers but also that based on the 
origin or destination of the vehicle. 
(see paras 51 , 52, 54, operative part 3) 
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SUMMARY — CASE C-157/02 
4. Although the literal meaning of the 
judgment in Case C-21/94 Parliament v 
Coucil annulling Directive 93/89 on 
the application by Member States of 
taxes on certain vehicles used for the 
carriage of goods by road and tolls and 
charges for the use of certain infra­
structures is that the effects of that 
directive are preserved until the adop­
tion of new legislation in that sphere, 
that judgment must , however, be 
understood to mean that the effects of 
Directive 93/89 were to be preserved 
until the date of entry into force of 
Directive 1999/62 on the charging of 
heavy goods vehicles for the use of 
certain infrastructures, which replaced 
it, that is to say, 20 July 1999. In 
connection with an action for annul­
ment, the purpose of preserving the 
effects of a legal act annulled by the 
Court is not to allow a legal vacuum to 
subsist until the annulled act has been 
replaced by a new act. That objective 
can be attained if the legal act annulled 
continues to produce legal effects until 
the new act does so. 
(see paras 59-61, operative part 4) 
5. It follows from the application of the 
second paragraph of Article 10 EC in 
conjunction with the third paragraph 
of Article 249 EC that, during the 
period prescribed by a directive for its 
transposition into national law, the 
Member State to which it is addressed 
must refrain from taking any measures 
liable seriously to compromise the 
result prescribed by the directive. The 
fact remains tha t in proceedings 
brought by individuals relying on a 
directive's direct effect, national courts 
are bound to refrain from applying 
pre-existing national rules contrary to 
that directive only after the period 
prescribed for its transposition has 
expired. Indeed, since the purpose of 
such a period is, in particular, to give 
Member States the necessary time to 
adopt transposition measures, they 
cannot be faulted for not having trans­
posed the directive into their internal 
legal order before expiry of that period. 
With more particular regard to Direc­
tive 1999/62 on the charging of heavy 
goods vehicles for the use of certain 
infrastructures, during the period from 
the date of its entry into force until the 
expiry of the period prescribed for its 
transposition, that it to say, from 
20 July 1999 to 1 July 2000, the 
Member States were required to refrain 
from taking any measures liable 
gravely to jeopardise the attainment 
of the result prescribed by that direct, 
but individuals could not rely on that 
directive against the Member States 
before national courts in order to have 
a pre-existing national rule incompat­
ible with the directive disapplied. 
(see paras 66-69, operative part 5) 
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