Opinion of the Advocate General — ECLI:EU:C:2000:101
Date: 2000-02-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Action for failure to fulfil obligations - successful
Origin: Austria

Summary of the Judgment 
1. Transport — Road transport — Harmonisation of laws — Directive 93/89 — Tolls 
and charges for the use of certain infrastructures — Difference in tariff applied to 
certain vehicles according to whether they are following the full itinerary or a partial 
itinerary on a motorway — Indirect discrimination based on the nationality of hauliers 
and on the destination or origin of the vehicle — justification — Not permissible 
(Council Directive 93/89, Art. 7(b)) 
2. Transport — Road transport — Harmonisation of laws — Directive 93/89 — Tolls 
and charges for the use of certain infrastructures — Obligation to set toll rates by 
reference to the operating costs of the infrastructure network concerned — Breach 
EC Treaty, Art. 169 (now Art. 226 EC); Council Directive 93/89, Art. 7(h)) 
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SUMMARY — CASE C-205/98 
1. A tariff difference to which vehicles 
with more than three axles carrying 
goods are subject, depending on whe­
ther those vehicles follow the full 
itinerary on a motorway or one of the 
partial itineraries, which operates to 
the detriment of hauliers who are 
nationals of the other Member States, 
involves indirect discrimination based 
on the nationality of hauliers contrary 
to 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 infra­
structures. Moreover, such a tariff 
difference also involves indirect discri­
mination by reason of the origin or 
destination of the vehicle contrary to 
that same provision where it operates 
to the detriment of vehicles engaged in 
transit traffic. 
That tariff difference cannot be justi­
fied in either case on grounds of 
environmental protection or considera­
tions of national transport policy since, 
in the area covered by the Directive, the 
Community legislature did not wish to 
allow States to derogate from the rules 
laid down therein except on the 
grounds, and in accordance with the 
conditions, laid down in the Directive. 
Neither the recitals in the preamble to 
the Directive nor the provisions of the 
Directive contemplate the possibility of 
relying on such grounds in order to 
justify tariff arrangements which give 
rise to indirect discrimination within 
the meaning of Article 7(b) of the 
Directive. 
(see paras 90, 93, 95, 101, 114-115) 
2. A Member State which does not apply 
the tolls demanded for the full itinerary 
on a motorway only in order to cover 
the costs linked with the construction, 
operation and development of that 
motorway fails to fulfil its obligation 
under Article 7(h) 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 infra­
structures. The 'infrastructure network 
concerned' within the meaning of that 
provision refers only to the section of 
the infrastructure for the use of which 
the toll is paid and not to all the 
sections of the motorway which form 
part of the same financing system. 
(see paras 126, 130, 140) 
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