61998CC0205_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In an action brought on 29 May 1998, the Commission of the European Communities applied to the Court under the second paragraph of Article 169 of the EC Treaty (now the second paragraph of Article 226 EC) for a declaration that the Republic of Austria (hereinafter Austria) had infringed Article 7(b) and (h) of Directive 93/89/EEC, in respect of certain changes - made in 1995 and 1996 - in the system of tolls for vehicles with more than three axles travelling a full itinerary on the Brenner motorway. The importance of the motorway in question for the carriage of goods by road between Germany and Italy and the economic issues raised by the dispute call for a detailed examination of the Community provisions and of the tariff regulations on which the Commission's charges against Austria are based.
The relevant Community provisions
2. The issue of motorway tolls and user charges arises at the point where Community policies on transport and tax harmonisation converge (transport, because such charges affect traffic within the Community; tax harmonisation, because they are parafiscal). In that connection, Directive 93/89, adopted on the basis of Articles 75 and 99 of the EEC Treaty (as amended by the Treaty on European Union, and later to become Articles 71 EC and 93 EC), contains a number of provisions specifically concerned with tolls and user charges. According to the second and third indents of Article 2, toll means payment of a specified amount for a vehicle travelling the distance between two points on a certain infrastructure, the amount being based on the distance travelled and on the category of the vehicle, while the term user charges means payment of a special amount conferring the right for a vehicle to use [certain infrastructures] for a given period. I should also point out that, for the purposes of the Directive in question, vehicle means only a motor vehicle or articulated vehicle combination intended exclusively for the carriage of goods by road and with a maximum permissible gross laden weight of not less than 12 tonnes (Article 2, fourth indent). On the specific subject of motorway tolls, Articles 7 to 9 contain rules designed to harmonise, at least to some extent, the most significant aspects of those tolls in order to contribute to the gradual elimination of distortions of competition between transport undertakings in the Member States. For the purposes of the present case, it must be noted that, under Article 7(b) and (h) of Directive 93/89, tolls may not discriminate, directly or indirectly, on the grounds of the nationality of the haulier or of the origin or destination of the vehicle, and toll rates shall be related to the costs of constructing, operating and developing the infrastructure network concerned. The time-limit for bringing national legal systems into line with the Directive was set at 1 January 1995.
3. In a judgment delivered on 5 July 1995, the Court, ruling on an action brought by the European Parliament, annulled Directive 93/89 on the ground that it infringed essential formal requirements but held that its effects must be preserved until the Council has adopted new legislation in the matter. The Court rejected the Parliament's request that the Court should impose on the Council a time-limit within which it must adopt new legislation in the matter but observed at the same time that the fact none the less remains that the Council is under a duty to put an end within a reasonable period to the infringement it has committed.
4. The very recent Directive 1999/62/EC, adopted on the basis of Articles 71 EC and 93 EC, lays down new rules on the charging of heavy goods vehicles, thus replacing Directive 93/89. The new directive, which entered into force on 20 July 1999, provides that Member States are to comply with the Directive by 1 July 2000. The definitions of toll and vehicle in the new directive are the same as those given in Directive 93/89 but there are appreciable differences in the rules on the levying of tolls. For the purposes of the present case, it need only be noted that under Article 7(4) and (9) tolls may not discriminate, directly or indirectly, on the grounds of the nationality of the haulier or the origin or destination of the vehicle and the weighted average tolls shall be related to the costs of constructing, operating and developing the infrastructure network concerned. The new directive also shows greater concern for environmental protection and the balanced development of transport networks, extending to the amount of the tolls. Thus, Article 7(10) provides that Member States may vary the rates at which tolls are charged according to vehicle emission classes, provided that no toll is more than 50% above the toll charged for equivalent vehicles meeting the strictest emission standards, and time of day, provided that no toll is more than 100% above the toll charged during the cheapest period of the day, provided that any variation in tolls charged with respect to vehicle emission classes or the time of day shall be proportionate to the objective pursued.
The relevant tariff regulations
The Brenner motorway
5. The Brenner motorway, technically described as the A13, leaves the Inntal motorway (A12) at Innsbruck and runs for a total distance of 34.5 km through the Tyrol to the Italian border at the Brenner pass (1 376 m above sea-level). The road in question, which follows a winding route through inaccessible country and has many bridges and viaducts, is the most sensitive stretch of a motorway complex of considerable importance to the Community, being designed to link Italy with Germany and thus with the other countries of northern Europe. The railway and national road B182, which is closed to goods vehicles over 7.5 tonnes, follow the same route as the motorway.
6. In the north, the Brenner motorway is entered via links from the Wilten and Amras intersections, situated on the A12 motorway between the Innsbruck East and Innsbruck West toll-stations. Those two links meet the Berg Isel intersection after 1.5 km and 2.6 km respectively, and the motorway then runs on to the Italian frontier without dividing again. To the south, the following exits after the Innsbruck West toll-station provide access to the B182 national road, which runs parallel to the motorway: Innsbruck South, 3 km; Patsch-Igls, 7 km; Stubaital, 10 km; Matrei-Steinach, 19 km; Nösslach, 27 km; and lastly Brennersee, 33 km. The stations for collection of the motorway tolls are located at those exits; the only one on the motorway itself - and in fact the most important one for heavy goods traffic - is located at Schönberg, about 10 km from Innsbruck, immediately after the Stubaital exit.
7. The whole of the Austrian motorway infrastructure, including the Brenner motorway, is Austrian federal State property under the rules on economic ownership. The construction and development of the infrastructure were initially financed by recourse to the capital market and since 1983 they have been run by a State-controlled company, AS, which is responsible for centralising all the arrangements for financing the whole of the Austrian motorway system. When the events at issue took place, the A13 motorway was run by Alpen Strassen, a limited company controlled by the federal and Land Tirol authorities, which also managed the Inntal motorway (A12) and the Arlberg expressway (S16). That company used the income from the tolls, which was formally federal State revenue, to operate, maintain and improve the infrastructures entrusted to it, crediting any unused amounts to the budget of AS, which used them to cover the costs of financial operations associated with the whole of the Austrian motorway network.
The toll system
8. From the time the Brenner motorway came into operation, Austria has applied a semi-open toll system (halb-offenes Mautsystem) relying on one main toll-station located on the motorway - at Schönberg - through which most of the heavy goods traffic passes, and secondary toll-stations located at the motorway exits mentioned above. The toll system devised by the Austrian Government distinguishes between three types of itinerary (Strecke):
(a) full itinerary (Gesamtstrecke), covering mainly the full distance of 34.5 km from the Innsbruck West or Innsbruck East toll-stations to the Italian border at the Brenner pass but also the section from the Schönberg toll-station to the Matrei-Steinach toll-station. The toll for the whole motorway is collected at the Schönberg toll-station;
(b) partial itinerary (Teilstrecke), covering only the sections of the motorway between the Innsbruck West or Innsbruck East toll-stations and the Schönberg toll-station (about 10 km) and between the Matrei-Steinach toll-station and the Italian border (about 16 km), as well as shorter stretches within those sections (for example, Innsbruck West to Patsch-Igls, 7 km, or Matrei-Steinach to Nösslach, about 7 km). The toll for partial itineraries is collected on entry or departure, as appropriate, at the secondary toll-stations on the itineraries in question;
(c) short itinerary (Kurzstrecke), covering only the section of 1.5 km between the Brennersee toll-station and the Italian border. The toll is collected at the Brennersee toll-station on entry or departure.
9. For the purposes of the present case, the tariff system for the Brenner motorway applies only to vehicles within the meaning defined in the fourth indent of Article 2 of Directive 93/89, that is to say vehicles used exclusively for the carriage of goods by road and with a maximum permissible gross laden weight of not less than 12 tonnes. A distinction must also be drawn within that category between vehicles with up to three axles and vehicles with more than three axles, as different tariff systems apply to each of these subcategories. Toll is paid by buying a single ticket or a season ticket, depending on the type of itinerary chosen.
The toll system for vehicles with more than three axles
10. It is apparent from the schedules of tariffs appended to the Commission application that on 30 June 1995 the toll system for vehicles with more than three axles, depending on the type of itinerary chosen, was as follows:
(a) the full itinerary: a single ticket cost ATS 1 000, or ATS 28.98 per km (1 000 ¸ 34.5 = 28.98), while the purchase of a 100-point season ticket (100-Punktekarte) brought the cost of the journey down to ATS 600, or ATS 17.39 per km (600 ¸ 34.5 = 17.39). For less noisy vehicles, a single ticket cost ATS 750, or ATS 21.73 per km (750 ¸ 34.5 = 21.73), while the purchase of a season ticket for 100 trips (100-Fahrtenkarte) brought the cost of the journey down to ATS 500, or ATS 14.49 per km (500 ¸ 34.5 = 14.49);
(b) partial itinerary: a single ticket cost ATS 300, or ATS 30 per km (300 ¸ 10 = 30) for the Innsbruck-Schönberg section and ATS 19.35 per km (300 ¸ 15.5 = 19.35) for the Matrei-Brenner section, while the purchase of a 100-point season ticket brought the cost of the journey down to ATS 200, or ATS 20 per km (200 ¸ 10 = 20) for the Innsbruck-Schönberg section and ATS 12.90 per km (200 ¸ 15.5 = 12.90) for the Matrei-Brenner section. The system was essentially the same for less noisy vehicles;
(c) short itinerary: a single ticket cost ATS 100, or ATS 66.67 per km (100 ¸ 1.5 = 66.67), while the purchase of a 100-point season ticket brought the cost of the journey down to ATS 80, or ATS 53.33 per km (80 ¸ 1.5 = 53.33). The system was essentially the same for less noisy vehicles.
11. On 17 May 1995, the Tyrol regional parliament (Tiroler Landtag) passed a resolution (Entschliessung) inviting the regional government to take the necessary steps to enable the federal authorities to adopt a new regulation on the tariff system applicable to the Brenner motorway, with special reference to heavy goods traffic. As a result of that political initiative, the federal government adopted a decision on 30 May 1995, under which the first part of the tariff reform suggested by the Tyrol authorities was to enter into force on 1 July 1995. The most important changes were that the special provisions for less noisy vehicles were abolished and the principal concessions for vehicles with more than three axles (the 100-Punktekarte and 100-Fahrtenkarte) were replaced with the simple option of purchasing a prepaid card (Wertkarte), but only for the partial itineraries (ATS 200 instead of ATS 300 for the Innsbruck-Schönberg section, and ATS 240 instead of ATS 300 for the Matrei-Brenner section) and the short itinerary (ATS 80 instead of ATS 100).
12. The Austrian federal parliament (Nationalrat), by resolution of 16 November 1995, invited the federal government to supplement the new regulation on Brenner motorway tolls in the manner requested by the Tyrol regional parliament. Following that political representation, the federal government adopted a further decision on 9 January 1996, under which all the tariff changes the Tyrol authorities had sought were to enter into force definitively on 1 February 1996. The most significant change in the second part of the reform was that tolls for vehicles with more than three axles travelling full itineraries were now altered to take account of ecological factors - in that less noisy vehicles with less pollutant emissions were to pay a lower toll than other vehicles - and whether the journey was made by day or by night.
13. On 1 February 1996, after this complex two-stage tariff reform, the system of tolls on the Brenner motorway for vehicles with more than three axles was as follows:
(a) full itinerary: a single ticket cost ATS 1 150, or ATS 33.33 per km (1 150 ¸ 34.5 = 33.33) for less noisy vehicles with less pollutant emissions, ATS 1 500, or ATS 43.48 per km (1 500 ¸ 34.5 = 43.48) for all other vehicles, and ATS 2 300, or ATS 66.67 per km (2 300 ¸ 34.5 = 66.67) for journeys made by night (between the hours of 22.00 and 5.00). The purchase of a prepaid ticket did not alter the rate charged;
(b) partial itinerary: a single ticket cost ATS 300 (as before), or ATS 30 per km for the Innsbruck-Schönberg section and ATS 19.35 per km for the Matrei-Brenner section. No special system was laid down for journeys made by night or for less noisy vehicles with less pollutant emissions. The purchase of a prepaid card brought the cost of the journey down to ATS 200, or ATS 20 per km for the Innsbruck-Schönberg section and ATS 240, or ATS 15.48 per km (240 ¸ 15.5 = 15.48) for the Matrei-Brenner section.
(c) short itinerary: a single ticket cost ATS 100, or ATS 66.67 per km, (as before) while the purchase of a prepaid ticket brought the cost of the journey down to ATS 80, or ATS 53.33 per km. The system was the same for journeys made by night or for less noisy vehicles with less pollutant emissions.
14. A special half-price scheme (Halbpreisregelung) was introduced for vehicles with more than three axles travelling from Innsbruck to Matrei, 19 km, or Schönberg to Matrei, 9 km, and back. Under the general rules, they would have been required to pay the full rate for both outward and return journeys at the Schönberg toll-station. However, on the return journey from Matrei to Schönberg they are given a free return ticket at the Schönberg toll-station, reducing the cost of the round trip by half (to ATS 1 150 or ATS 1 500 instead of ATS 2 300 or ATS 3 000). There is a further concession attaching to the purchase of a prepaid card: on the return journey, the Schönberg toll-station gives a voucher for ATS 750 of the price charged for the full itinerary (ATS 1 150) in the case of less noisy vehicles with less pollutant emissions, and ATS 1 100 of the price charged for the full itinerary (ATS 1 500) in the case of other vehicles with more than three axles. As a result, the round trip costs only ATS 400 (1 150 - 750 = 400; 1 500 - 1 100 = 400) for all vehicles with more than three axles, or ATS 10.53 per km for the 38 km Innsbruck-Matrei-Innsbruck journey (400 ¸ 38 = 10.53) and ATS 22.22 per km for the 18 km Schönberg-Matrei-Schönberg journey (400 ¸ 18 = 22.22).
The Treaty-infringement proceedings and the forms of order sought
15. The Austrian Government kept the Commission informed of the tariff reform it had decided to introduce on the Brenner motorway for vehicles with a maximum permissible gross laden weight of not less than 12 tonnes and with more than three axles. After a lengthy correspondence with the Austrian authorities about the scope, basis and reasons for the tariff changes in question, the Commission concluded that there had been a breach of Community law in that the Austrian authorities had infringed Article 7(b) and (h) of Directive 93/89 and it therefore sent the Austrian Government a letter on 9 April 1996 formally inviting it to submit its observations on the matter in accordance with the procedure laid down in Article 169 of the EC Treaty (now Article 226 EC). The Austrian Government's observations, communicated to the Commission by letter of 5 June 1996, were not deemed to be satisfactory. The Commission therefore decided to send the Austrian Government a reasoned opinion on 13 January 1997, in accordance with the first paragraph of Article 169 of the EC Treaty (now the first paragraph of Article 226 EC), stating that in its view there had been a breach of Community law. In their reply of 28 May 1997, the Austrian authorities denied that there had been a breach and expressed the hope that the dispute with the Commission could be settled in a manner that would respect the needs of intra-Community transport and environmental protection alike. A further exchange of letters with the Commission lasting until February 1998 clarified a number of specific points in the matter at issue but did not settle the dispute.
16. The Commission brought an action on 29 May 1998 under the second paragraph of Article 169 of the EC Treaty (now the second paragraph of Article 226 EC), claiming essentially that the Court should:
- declare that, by raising from 1 July 1995 and from 1 February 1996 some of the tolls for a full itinerary on Brenner motorway, a transit route through Austria used predominantly by vehicles from other Member States, the Republic of Austria has infringed Article 7(b) of Directive 93/89;
- declare that, by not imposing the said tolls only to cover the costs of constructing, operating and developing the Brenner motorway, the Republic of Austria has infringed Article 7(h) of Directive 93/89;
- order the Republic of Austria to pay the costs.
17. The Republic of Austria contended that the Court should:
- dismiss the application in its entirety;
- order the Commission to pay the costs.
The availability of an action for infringement of a directive where the directive has been annulled but its effects have been preserved provisionally
18. The Austrian Government first raises the question whether the Commission may bring an action for infringement of Directive 93/89, when that directive was annulled by the Court in the judgment in Case C-21/94, cited above, but its effects were preserved provisionally. That argument is based essentially on the Council's delay - almost four years - in adopting Directive 1999/62/EC, which was designed to replace the directive annulled by the Court, and on the difference in content between Directive 93/89, which Austria is alleged to have infringed, and the Commission proposal of 13 November 1996, on which Directive 1999/62 was subsequently based.
19. I cannot agree with the Austrian Government's argument. It is true that, in the judgment of 5 July 1995, when the Court was considering the advisability of preserving the effects of the annulled directive it stated that the Council was under a duty to put an end within a reasonable period to the infringement it has committed, but to discuss the length of that period and the possible consequences of excessive delay does not appear to be relevant for the purposes of the present case in which it is simply a question of assessing the basis of the alleged infringements of Directive 93/89. The Court's ruling seems to me to be sufficiently clear: the effects of the annulled directive are to be preserved until the Council has adopted new legislation in the matter and that in turn means that the Commission may bring an action for infringement against any Member State that disregards the annulled directive. The need to avoid discontinuity in the programme for the harmonisation of transport taxation and important considerations of legal certainty provide justification - as Advocate General Léger observed - for preserving the effects of the annulled directive: if in those circumstances a Member State was free to disregard the provisions of the directive with impunity and the Commission was automatically prevented from taking any action to restore the rule of law, the useful effect of the ruling contained in the operative part of the judgment of 5 July 1995 would be irredeemably compromised.
20. There is moreover a specific precedent on the subject. In its judgment of 5 March 1998, the Court declared that, by failing to comply with Directive 93/89 within the prescribed time-limit, the French Republic had failed to fulfil its obligations under that directive. The French Government did not raise the point now brought up by Austria, nor did the Court feel obliged to consider it of its own motion - as it could have done. If it is thus possible to bring an action for infringement in the case of failure to transpose a directive where the directive has been annulled but its effects have been preserved, it will a fortiori also be possible to bring an action for infringement of some of the provisions of that directive.
Indirect discrimination on grounds of the nationality of the carrier
Preliminary remarks
21. The Commission's primary charge is that Austria, by its two-stage tariff reform in 1995 and 1996, introduced discrimination on grounds of the nationality of the carrier, against vehicles with more than three axles travelling a full itinerary on the Brenner motorway, the great majority of which are not registered in Austria. In the Commissions view, this constitutes infringement of Article 7(b) of Directive 93/89 in so far as it provides that tolls may not discriminate, directly or indirectly, on the grounds of the nationality of the haulier.
22. According to the Commission, the discrimination in question is not direct, in that the Austrian regulations are not based on the nationality of the carrier and apply indistinctly both to vehicles belonging to Austrian carriers and to those belonging to carriers from other Member States. It should therefore be regarded as a form of indirect discrimination, also covered by Article 7(b) of Directive 93/89 and fully recognised by the Court, which has consistently held that the rules regarding equal treatment forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. The indirect discrimination on grounds of the nationality of the carrier or haulier (referred to in Directive 93/89) is based in the present case on the registration of the vehicle. The Commission refers in that connection to the judgment in Corsica Ferries, where the Court held that the concept of indirect discrimination on grounds of the nationality of economic operators may also apply in cases where the system gives preferential treatment to vessels flying the national flag, since vessels flying the national flag are generally operated by national economic operators, whereas transport undertakings from other Member States as a rule do not operate ships registered in the State applying that system. The Court added that that finding is not affected by the fact that the class of less favourably treated economic operators may also include national transport undertakings which operate vessels not registered in their State, or by the fact that the class of operators given favourable treatment may include transport undertakings from other Member States which operate vessels registered in the aforesaid State, since the class receiving favourable treatment consists essentially of nationals of that State. I consider that the principles underlying that case-law may apply equally well to the sector of carriage of goods by road. It is true that the Community rules on the market in the carriage of goods by road do not require that the carrier (or, to be more precise, the transport undertaking) own the vehicle used for the carriage of goods, but provide - with particular reference to international carriage for the account of third parties - that he may have the vehicle at his disposal under a hiring or leasing contract. But on the other hand, it is reasonable to suppose that in principle carriers from a Member State will use vehicles registered in that Member State, whatever the basis (ownership, hire, leasing) of the arrangement. I realise that this supposition ultimately involves to some extent assuming that the nationality of the carrier coincides with the place of registration of the vehicles he uses; however, although such an assumption may not always be correct, it is nevertheless a reasonable and acceptable one to make against the present background of the carriage of goods by road in the Community.
23. The foregoing explanations allow us to form a clearer idea of the substance of the Commission's charge against Austria. The Commission is essentially seeking to show, on the basis of two objective premisses that are easy to substantiate and difficult to deny, that there is indirect discrimination on grounds of the nationality of the carrier. If we disregard the obscure wording in some parts of the application, the Commission's case comes down to the following points, which I shall consider separately below: (a) the first premiss is that the tariff changes introduced in 1995 and 1996 affect only vehicles with more than three axles travelling a full itinerary on the Brenner motorway; (b) the second premiss is that the great majority of the vehicles in question are registered in Member States other than Austria and therefore belong to non-Austrian carriers; (c) it follows from these premisses that there is indirect discrimination against non-Austrian carriers who, it is claimed, use vehicles with more than three axles to travel a full itinerary on the Brenner motorway, compared with Austrian carriers most of whom, on the contrary, are said to use vehicles with up to three axles to travel a full itinerary on the motorway in question and vehicles with more than three axles on sections of it.
24. The task of examining the Commission's two premisses is rendered particularly easy by the full and abundant information available on toll rates and volumes of traffic, and the effective absence of any challenge from the Austrian side. It is very difficult to determine the precise consequences of those premisses, however, because of the many objections the defendant has raised against the assessment criteria employed by the Commission.
First premiss: the tariff increases
25. That the tariff changes introduced by the Austrian Government in 1995 and 1996 only affect vehicles with more than three axles travelling a full itinerary on the Brenner motorway is transparently clear from the official tariffs attached to the Commission's application. According to the information given above, the cost of a single ticket for vehicles of that kind travelling the full distance rose from ATS 1 000, or ATS 28.98 per km, reducible to ATS 600, or ATS 17.39 per km by the purchase of a season ticket, to ATS 1 500, or ATS 43.48 per km, with no discount option, which means that from 1 February 1996 - allowing for the discount options usually taken up by carriers - there was an increase of ATS 900, or ATS 26.09 per km, (a 150% increase) in the cost of travelling a full itinerary on the motorway. For less noisy vehicles (provided that they remained within the EURO II limits on pollutant emissions), the cost of a single ticket rose from ATS 750, or ATS 21.73 per km, reducible to ATS 500, or ATS 14.49 per km by the purchase of a season ticket, to ATS 1 150, or ATS 33.33 per km, with no discount option, representing an increase of ATS 650, or ATS 18.84 per km, (a 130% increase) in the cost of travelling a full itinerary on the motorway. Lastly, a special rate of ATS 2 300, or ATS 66.67 per km, was introduced in 1996 for journeys made by night (between the hours of 22.00 and 5.00), representing an increase of ATS 1 700, or ATS 49 28 per km, (a 283% increase) for normal vehicles and ATS 1 800, or ATS 52.18 per km, (a 360% increase) for less noisy vehicles with less pollutant emissions. In short, since 1 February 1996, a vehicle with more than three axles travelling a full itinerary on the Brenner motorway pays 150% more if it makes the journey by day and 283% more if it makes the journey by night, while an eco-friendly vehicle pays 130% more if it travels by day and 360% more if it travels by night.
26. It is also clear from the official tariffs that there was no increase on 1 February 1996 in the tolls charged for vehicles with up to three axles - irrespective of the distance travelled (full itinerary, partial itinerary or short itinerary) and whether the journey was made by day or night - or for vehicles with more than three axles not travelling a full itinerary on the Brenner motorway. For these vehicles, no special system was provided either for travel by night or on ecological grounds (low noise levels and less pollutant emissions). As to the special half-price scheme for the section between Schönberg and Matrei, the existing arrangements enabled the tolls for the round trip to be kept at the single-fare rate of ATS 400, a sum that is perfectly in line with the average rates charged for the other partial itineraries.
27. I therefore consider that the Commission's first objective premiss, namely that the tariff changes introduced by the Austrian Government in 1995 and 1996 only affected vehicles with more than three axles travelling a full itinerary on the Brenner motorway, may be regarded as acceptable.
Second premiss: the volumes of traffic
28. The Commission assumes that the great majority of vehicles with more than three axles travelling a full itinerary on the Brenner motorway are registered in Member States other than Austria and it concludes that they therefore belong to non-Austrian carriers. The available information on volumes of traffic on the motorway in question supports the Commission's conclusion. On the basis of a technical study commissioned by the Austrian Government and completed in 1995, and various statements contained in letters from the Austrian Government, the Commission has calculated that approximately 84% of all vehicles with more than three axles travelling a full itinerary on the Brenner motorway (the distance covered by 99% of vehicles with more than three axles) are not registered in Austria. This figure is not contested by the Austrian Government, which in fact confirmed that it was correct in its letter of 5 June 1996, in which it did not deny that the increase in the tolls in question mainly affects vehicles that are not registered in Austria. The Commission claims, however, that the great majority of vehicles with more than three axles travelling on partial itineraries on the Brenner motorway (journeys made by only 1% of all vehicles of this type) are registered in Austria; although it gives no precise figures in this connection, it asserts that it is in the natural order of things that the great majority of journeys on partial itineraries, including the section between Innsbruck and Matrei, are made by Austrian vehicles in local and regional traffic noting that this observation is not contested by the Austrian Government. Finally, the Commission claims that the great majority of vehicles with up to three axles travelling a full itinerary on the Brenner motorway are likewise registered in Austria. In that connection, it is apparent from the technical study mentioned earlier that, in 1994, 99.6% of vehicles with up to three axles used in internal traffic, 88.2% of those used in traffic to or from localities in Austria, and none of those used for transit purposes, were registered in Austria.
29. If we accept the assumption - which I mentioned earlier - that the nationality of the carrier usually coincides with the country in which the vehicle is registered, the facts I have just described can only be interpreted as meaning that 84% of vehicles with more than three axles travelling a full itinerary on the Brenner motorway belong to non-Austrian carriers. That is a logical corollary of the evidence provided by the vehicle registration figures.
30. I therefore consider that the Commission's second objective premiss, namely that the great majority of vehicles with more than three axles travelling a full itinerary on the Brenner motorway are not registered in Austria and therefore belong to non-Austrian carriers, may likewise be accepted.
Comparative demonstration of indirect discrimination
31. So far, the Commission has shown that the 1995 and 1996 tariff changes affected non-Austrian carriers in the great majority of cases. But that is not sufficient to prove that there is indirect discrimination against them. In this connection, the fact that some 16% of Austrian vehicles were affected by the tariff changes does not preclude the possibility of indirect discrimination, since that figure does not represent a significant proportion of the vehicles with more than three axles travelling a full itinerary on the Brenner motorway. It should be borne in mind however that - as the Austrian Government rightly points out - the Court has consistently held that discrimination consists solely in the application of different rules to comparable situations or in the application of the same rule to differing situations. In the present case it must therefore be determined whether the toll system on the Brenner motorway does in fact, after the changes made in 1995 and 1996, involve the application of differential tariffs to comparable situations. Indeed it is on the question of comparability that the Commissions action against the Austrian Government stands or falls.
32. In that connection, the Commission takes the view that the situation of vehicles with more than three axles travelling a full itinerary on the Brenner motorway may be compared with the situations, which are deemed to be similar, of vehicles with more than three axles covering partial itineraries and vehicles with up to three axles covering the full distance. There undoubtedly appears to be an appreciable difference between the first situation and the other two in respect of tariffs. It remains to be seen whether the first situation may be regarded as similar - and therefore comparable - to the other two. In other words, it must be determined whether it is possible for legal purposes to compare: a) different journeys made by vehicles of the same axle-type; b) vehicles of different axle-types making the same type of journey.
Comparability of different types of journey
33. The Commission considers that a comparison can be made between vehicles with more than three axles travelling a full itinerary on the Brenner motorway and vehicles covering partial itineraries on the motorway, in order to establish whether there is discrimination against the former compared with the latter. In this connection, in order to decide whether the different journeys - by vehicles of the same axle-type - are comparable, the exact parameters of the journeys must first be defined. The Commission was asked about this and explained, in its written reply of 26 October 1999, that only some of the partial itineraries could be considered for the purposes of comparison with the full length of the Brenner motorway. The itineraries in question are: a) the partial itinerary from Innsbruck to Schönberg (or Stubaital), approximately 10 km, the (unchanged) charge for which is ATS 200, or ATS 20 per km, with a prepaid ticket; b) the partial itinerary - albeit regarded as a full itinerary for the purposes of the Austrian system of charges - from Innsbruck to Matrei, approximately 19 km, the (unchanged) charge for which is ATS 200, or ATS 10.53 per km, at the special half-price rate and with the concessions associated with a prepaid ticket; c) the partial itinerary - likewise regarded as a full itinerary under the current system of charges - from Schönberg (or Stubaital) to the Brenner pass, approximately 24.5 km, the charge for which, following the changes in 1995 and 1996, is in line with the system applicable to the full distance, namely ATS 1 150, or ATS 46.94 per km (1 150 ¸ 24.5 = 46.94) for less noisy vehicles with less pollutant emissions; ATS 1 500, or ATS 63.14 per km (1 500 ¸ 24.5 = 63.14) for all other vehicles; ATS 2 300, or ATS 93.88 per km (2 300 ¸ 24.5 = 93.88) for journeys made by night; d) the partial itinerary from Matrei to the Brenner pass, approximately 15.5 km, the charge for which, following the changes in 1995 and 1996 and with a prepaid ticket, has increased slightly to ATS 240, or ATS 15.48 per km.
34. I have some doubts about the criteria the Commission used to decide which partial itineraries were to be selected for the purposes of comparison. Under the current tariff system, the journeys described in (b) and (c) are included in the general category of the full itinerary, of which they form a part, whereas only the parts of the motorway between Innsbruck and Schönberg and between Matrei and the Brenner pass - and the smaller stretches within them - are regarded as partial itineraries and are subject to the relevant rules. I admit that, in view of the special half-price rate applicable on that itinerary, the journey described in (b) can be regarded as substantially the same as a partial itinerary and can therefore be used as a parameter for purposes of comparison, but I cannot see the point of including the journey described in (c) among the journeys to be used for purposes of comparison: it is treated in the same way as the full itinerary for all practical purposes and it does not even enjoy the benefit of the special half-price rate. I consider it unreasonable to compare situations in which the same vehicles cover similar stretches of road where the tariffs are the same. The partial itineraries described in (a), (b) and (d) are the only ones that can, in my view, be used for the purposes of comparison with a full itinerary on the Brenner motorway.
35. The Austrian side has raised even more radical objections to the criteria employed by the Commission. According to Austria, to compare a full itinerary on the motorway with the partial itineraries, it is necessary to take all the partial itineraries, establish the average cost of covering those itineraries and compare it with the cost of covering a full itinerary on the motorway. The calculations made by the Austrian side show that, on that method, the average costs for the full distance and the partial itineraries are very similar and there is therefore no indirect discrimination. I do not deny that such an objection goes to the very heart of the problem raised by the Commission's comparative argument: why should the partial itineraries - and only some of them at that - be regarded as comparable with the full distance? The answer, according to the Austrian Government, is that theoretically vehicles with more than three axles are at liberty to make whatever journey they wish, and may thus decide, for example, to pay ATS 69.70 per km to travel from Schönberg to Nösslach (approximately 16.5 km, with a toll of ATS 1 150) to make a delivery of goods for the tourist infrastructure or to collect refuse. The Commission, on the contrary, maintains that the only stretches of the motorway that need to be taken into account are the partial itineraries actually used by heavy goods vehicles to meet fairly substantial commercial and industrial needs. In that connection, only the city of Innsbruck and the areas round Fulpmes, near Stubaital, and Matrei are of sufficient commercial and industrial interest to justify an inflow of vehicles with more than three axles: apart from the city of Innsbruck, the capital of the Tyrol and a major economic centre, the area round Fulpmes contains firms manufacturing mountain products and many large undertakings, particularly in the textile, construction and meat sectors, are established in the vicinity of Matrei. All the other towns or localities situated along the Brenner motorway are of more or less exclusively tourist interest and there is no reason for an inflow of heavy goods traffic. It follows, according to the Commission, that the only partial itineraries to be taken into account should be those listed above, as they are the only ones that serve localities of major economic interest and consequently the only ones that are used by vehicles with more than three axles. In my view, the Commission's criterion is the more correct one. If a comparison is to be made between journeys on the motorway, those journeys must be comparable, that is to say they must be made by vehicles with more than three axles engaged in similar types of carriage. It is reasonable to suppose that the vehicles in question have similar grounds for using a full itinerary on the motorway and the partial itineraries mentioned by the Commission, namely the carriage of heavy goods for commercial or industrial use, either in transit or to or from one of the aforesaid localities (Innsbruck, Fulpmes and Matrei). There is on the other hand no reason to include among the partial itineraries to be considered stretches which in fact have little or nothing to do with the carriage of goods. The objections advanced by the Austrian Government are therefore unfounded.
36. In my view, the fact that there is very little heavy goods traffic on the partial itineraries on the Brenner motorway is irrelevant. According to the available statistics, only 1% of vehicles with more than three axles travel on partial itineraries on that motorway. The extremely small volume of heavy goods traffic on the itineraries in question does not preclude comparison of those itineraries with a full itinerary on the motorway since, for the purposes of determining whether there is any discrimination, the distribution of heavy goods traffic between a full itinerary on the motorway and the partial itineraries is not so important as the proportion of vehicles registered in Austria and the other Member States respectively that travel on them. It is apparent from the available figures that the great majority of vehicles travelling a full itinerary on the motorway are non-Austrian, whereas the great majority of the - albeit tiny - number of vehicles travelling on the partial itineraries are Austrian.
37. The Austrian Government objects that the extremely small volume of heavy goods traffic on the partial itineraries on the Brenner motorway, although not of itself preventing comparison, does nevertheless preclude the application of the new differential tariff system on those itineraries (with different tolls for eco-friendly vehicles and for travel by night) because the administrative costs of operating such a system would be too high in relation to the volumes of traffic. In my view, that objection is irrelevant. The differential system is part of a complex tariff reform, which was confined entirely to vehicles with more than three axles travelling a full itinerary on the motorway and which involved quite exorbitant increases in the tolls paid by vehicles of that type, apart from the differences in rates introduced in some cases. The partial itineraries were not affected at all by the increases in rates, which could have been applied without changing the administrative system in force or entailing any additional costs. Moreover, as the Commission has pointed out, it is unlikely that the administrative expenses involved in simply collecting a higher toll would be any greater than those the Austrian Government already has to bear in connection with the operation of the system of prepaid tickets and the special half-price scheme on the partial itineraries. In any case, a Member State cannot rely upon domestic difficulties ... for the purpose of justifying a failure to comply with the obligations ... contained in Community directives, especially when, as in the present case, the principle of non-discrimination is at stake. I therefore take the view that the objection raised by the Austrian Government should be dismissed.
38. In the light of these facts and on the objective premisses I mentioned earlier, I consider that there is evidence of indirect discrimination against vehicles with more than three axles travelling a full itinerary on the motorway, the great majority of which are not registered in Austria, compared with similar vehicles travelling on the partial itineraries described under a), b) and d), the great majority of which are registered in Austria. The latter enjoy an advantage because they pay ATS 20, ATS 10.53 and ATS 15.48 per km respectively, leaving aside the question of ecological requirements and whether the journey is made by day or by night, whereas for a full itinerary on the motorway less noisy vehicles with less pollutant emissions pay ATS 33.33 per km, others pay ATS 43.48 per km, and in the case of travel by night all vehicles pay ATS 66.7 per km. Over the full distance, therefore, vehicles with more than three axles pay a minimum of ATS 33.33 per km - if they meet the ecological criteria and travel by day - compared with an average of ATS 15.34 per km paid by similar vehicles on the partial itineraries regarded as relevant. In other words, the cost per km over the full distance is more than double the cost per km on the partial itineraries. It follows that there is indirect discrimination based on the registration of the vehicles and hence - for reasons already stated - the nationality of the carrier, contrary to Article 7(b) of Directive 93/89. Confirmation that that is the case is provided, as the Commission points out, by the resolution of 17 May 1995, in which the Tyrol regional parliament proposed the tariff reform in question and in which it explained the need to protect domestic carriers (heimische Frächter) against the drastic charges that would result from the proposed tariff changes, thus recognising that the new measures were intended to have a protective and consequently discriminatory effect.
Comparability of vehicles of different axle-types
39. The Commission also considers that, with reference to a full itinerary on the Brenner motorway, a comparison can be made between vehicles with more than three axles and vehicles with up to three axles, in order to establish whether there is discrimination against the former compared with the latter on grounds of the nationality of the carrier. I note in this connection that the only vehicles that should be taken into account are vehicles as defined in Directive 93/89, not buses, private motor cars or vehicles with a maximum permissible gross laden weight of less than 12 tonnes.
40. Austria does not agree that vehicles of different axle-types can be compared. It claims that vehicles with more than three axles do substantial damage to the motorway infrastructure and that the adverse effect they have on the environment is greater than that of vehicles with up to three axles. On the subject of damage to the infrastructure, Austria maintains essentially that vehicles with more than three axles, which can bear greater loads, usually carry much heavier gross laden weights on the Brenner motorway than other vehicles and are consequently responsible for more wear and tear on that motorway. On the question of the impact on the environment, the Austrian Government points to the adverse effects that the more powerful engines of such vehicles may have on fuel consumption and consequently on the volume of pollutant exhaust fumes.
41. The Commission advances a number of arguments against those objections. In the first place, it maintains - and this is not contested by the Austrian Government - that the wear on the infrastructure caused by a specific vehicle depends not only on the number of axles but also on other factors such as the total weight in relation to the number of axles, the axle load and the suspension system of the driving axles. In the second place, it claims there is no evidence that vehicles with more than three axles cause greater damage to the environment than any others, since more than 90% of the vehicles in question now comply with the EURO II criteria. In my view, those arguments dispel any doubts as to whether vehicles with up to three axles can be compared with vehicles with more than three axles.
42. Once the question of the comparability of the two types of vehicle has been clarified, it remains to be determined whether there is indirect discrimination in the present case. The only available figures on the subject are those given in table 6 of the Austrian technical study mentioned earlier, according to which, in 1994 - leaving aside the question of the type of journey - 99.6% of vehicles with up to three axles used in internal traffic, 88.2% of those used in traffic to or from localities in Austria, and none of those used for transit purposes, were registered in Austria. The Commission naturally cites the first two figures to prove its point that most of the vehicles in question are Austrian, whereas Austria relies on the through traffic to show that none of them are. This is a classic case of massaging the figures. It remains to be determined what the available figures on the subject actually mean. The abovementioned table gives, for 1994, an average daily figure of 334 vehicles with up to three axles, distributed as follows: 189 in internal traffic, 43 in traffic to or from localities in Austria and 102 in transit. I consider that internal traffic ought not to be taken into account, since that type of traffic consists of vehicles which, by definition, do not travel a full itinerary on the Brenner motorway. That leaves the other two types of traffic, which account for an average of 145 vehicles a day (334 - 189 = 145). Of those, only 38 were registered in Austria, while the remaining 107 were registered in other Member States. It follows that, of the vehicles with up to three axles that travelled a full itinerary on the Brenner motorway in 1994, probably only 26% were registered in Austria, while the remaining 74% were registered elsewhere. In my view, this shows that there could not be any indirect discrimination on grounds of the nationality of the carrier, since the benefits of the more favourable tariff system for vehicles with up to three axles were enjoyed predominantly by non-Austrian carriers. I therefore consider that, on this point, the Commission's arguments cannot be accepted.
Possible justifications for the discrimination found
43. I have shown above how the tariff changes introduced by the Austrian Government in 1995 and 1996 may give rise to indirect discrimination on grounds of the nationality of the carrier against vehicles with more than three axles travelling a full itinerary on the Brenner motorway, the great majority of which are not registered in Austria, compared with similar vehicles, the great majority of which are registered in Austria, travelling on certain partial itineraries on the said motorway, which are deemed to be relevant for the purposes of heavy goods traffic. That discrimination, being indirect, may in principle be justified on objective and impartial grounds connected inter alia with the requirements of national transport policy and protection of the environment. The Austrian Government refers expressly to those requirements and it must therefore be determined whether they still apply and what effect they may have on the treatment accorded to carriers in the present case.
44. Environmental protection was mentioned by the Austrian Government in its correspondence with the Commission before the action was brought but neither the defence nor the rejoinder contains any express reference to the subject except for a passing reference to the adverse effect on the environment of vehicles with more than three axles and the necessity, particularly at night, of considering the needs of the people living near the motorway. There is no denying that the Austrian Government is right about the absolute need to protect the environment, in the context of Community transport policy among others. However, in the present case, that Government has not explained how the application of discriminatory tolls could have beneficial effects on the protection of the countryside in question. It need merely be borne in mind that if, for technical reasons connected with noise or pollutant exhaust fumes, the intention was to penalise certain types of vehicle deemed to be more damaging than others, it is not the case that the only appropriate instrument is indirect discrimination against non-Austrian carriers.
45. As regards the requirements of national transport policy, the Austrian Government draws attention to the volume of through traffic on the Brenner motorway and in particular to the phenomenon of detour traffic (Umwegtransit). This expression refers to the fact that a significant proportion (30%-40%) of the vehicles with more than three axles carrying goods between Germany and northern Europe, on the one hand, and Italy, on the other, find it convenient to take a longer route than the normal one and to travel through Austria along the Brenner motorway rather than through Switzerland, where the motorway charges are higher, or through the passes and tunnels on the French side. A vehicle travelling from Brussels to Milan would therefore prefer to pass through Austria rather than Switzerland, with its higher charges. I do not deny that the Austrian Government has some reason for complaining about the peculiar position of the Tyrol corridor in the narrow pass between two of the larger Member States (Germany and Italy), whose closely intertwined economies and trade links give rise to an ever-increasing volume of goods traffic carried by road. Nor do I deny that there have in the past been serious delays in the development of combined transport arrangements and agreements between the Community and Switzerland on transport. Nevertheless, I consider that the problems to which Austria has drawn attention in the particular context of the present case cannot be regarded as providing any real justification for a national measure that violates the principle of non-discrimination. The introduction of a discriminatory tariff system is not an appropriate way of solving those problems since, without removing the structural causes of the excessive volume of through traffic crossing Austria, it merely creates unequal treatment to the detriment of non-Austrian carriers. I therefore take the view that Article 7(b) of Directive 93/89 precludes discrimination against carriers who, in order to cut costs, take a route that is longer than others they might take. The deterrent aim pursued by Austria through the new tariff system cannot therefore in my opinion be regarded as an objective and impartial reason such as to justify indirect discrimination on grounds of the nationality of the carrier.
Indirect discrimination on grounds of the origin or destination of the vehicle
46. The Commission claims that, by the 1995 and 1996 tariff changes, Austria introduced another form of indirect discrimination, on grounds of the origin and destination of the vehicle, contrary to the prohibition contained in Article 7(b) of Directive 93/89. That allegation is expressed in ambiguous and incomplete terms and it is therefore necessary to define the scope of the provision in question which, for reasons I shall explain later, should be regarded as quite separate from the provision examined above, which prohibits discrimination on grounds of the nationality of the carrier.
47. In referring to the origin and destination of the vehicle, Directive 93/89 prohibits any discrimination against hauliers, irrespective of their nationality, on grounds of the place from which their vehicles have come or to which they are going, in order to avoid preferential treatment being accorded to localities, areas or entire Member States affected by particular volumes of traffic or specific economic needs. The fundamental reason for that prohibition is the need to eliminate all forms of distortion of competition between transport undertakings in the Member States. It follows from the fact that the prohibition in question applies without regard to the nationality of the carrier that the terms origin and destination must be interpreted as meaning that they cover every possible variety of vehicle travelling to or from a locality situated in a given Member State, including both domestic and international traffic, with or without transit. Moreover, in the sphere of international traffic, special Community rules apply in Austria to purely through traffic: that traffic is subject to a different system from domestic traffic and traffic to or from localities in Austria. The Commission's contention that goods vehicles transiting through Austrian territory suffer discrimination, compared with other vehicles using the Brenner motorway, must therefore be considered in the light of the special system applicable to traffic in transit through Austria. Discrimination against vehicles in transit must be held to be particularly serious inasmuch as, in the case of Austria, a system had been provided which already - at that country's request - imposed very strict conditions on that type of traffic. Of course, in order to establish whether Austria has committed the alleged breach, it must be determined whether there is indirect discrimination in this respect also and, to that end, it is appropriate to employ the method used earlier to ascertain whether or not there was indirect discrimination on grounds of the nationality of the carrier.
48. The Commission's case can be summarised as follows: a) the tariff changes at issue only affect vehicles with more than three axles travelling a full itinerary on the Brenner motorway; b) the great majority of those vehicles are part of the through traffic passing through Austrian territory; c) there is consequently indirect discrimination, on grounds of the origin and destination of the carrier, against the vehicles in question, most of which are in transit, compared with vehicles with more than three axles covering partial itineraries and vehicles with up to three axles travelling the full distance, both of which represent in the main types of traffic other than through traffic.
49. In the course of considering the preceding charge, I have already pointed out that the tariff changes at issue affect only vehicles with more than three axles travelling a full itinerary on the motorway. In order to show that the great majority of vehicles of that type are carrying goods in transit, the Commission argues - and this is not contested by the defendant government - that 99% of the vehicles with more than three axles travel a full itinerary on the motorway, that through traffic accounts for 80% of the goods traffic on the Brenner motorway and that approximately 94% of the through traffic consists of vehicles not registered in Austria. These figures do not seem to me to prove the Commission's point. It must be borne in mind that the first figure (99%) includes vehicles that are not part of the through traffic, while the second (80%) and third (94%) do not distinguish between vehicles according to axle-type. It is apparent from table 6 of the Austrian technical study, already cited on a number of occasions, that of the vehicles with more than three axles that travelled a full itinerary on the Brenner motorway in 1994, an average of 2 439 vehicles a day constituted through traffic, an average of 370 vehicles were travelling to or from a locality in Austria and an average of 31 vehicles were domestic traffic (within Austria). So, leaving out the domestic traffic which does not usually travel a full itinerary on the motorway, a daily average of 2809 (2 439 + 370 = 2 809) vehicles with more than three axles travelled the full distance. Of course through traffic always travels a full itinerary on the motorway but the same cannot be said of traffic to or from a locality in Austria, which has to meet a variety of needs and may therefore use partial itineraries also (traffic to or from Matrei, for example, may well flow along the motorway in both directions). As regards the latter type of traffic, it is theoretically possible to imagine one scenario in which all the traffic to or from a locality in Austria always travels a full itinerary on the motorway and another in which it never does. In the first case, the traffic to or from a locality in Austria would count as through traffic; on this calculation, of the vehicles with more than three axles that travelled a full itinerary on the Brenner motorway in 1994, an average of 2 439 vehicles a day, or 86.8%, would constitute through traffic. In the second case, the traffic to or from a locality in Austria would not count as through traffic; on this calculation, 100 % of the vehicles with more than three axles that travelled a full itinerary on the Brenner motorway would constitute through traffic. It follows that the proportion of vehicles with more than three axles travelling a full itinerary on the Brenner motorway in 1994 as through traffic varied between a minimum of 86.6% and a maximum of 100%. There is no doubt that the great majority of vehicles with more than three axles that travel a full itinerary on the motorway fall into that category. It therefore follows that the Commission's second assumption too is confirmed by objective evidence and can therefore be regarded as established.
50. It follows from the premiss I have just examined that the Austrian tariff system, which imposes higher charges for vehicles with more than three axles travelling a full itinerary on the Brenner motorway, amounts to (indirect) discrimination against vehicles of that type, the great majority of which constitute through traffic, compared with vehicles with more than three axles covering partial itineraries and vehicles with up to three axles travelling the full distance, both of which represent in the main types of traffic other than through traffic and are not adversely affected by the aforesaid tariff changes. I do not propose to speak at length about the comparability of the situations in question, as I consider that I have already dealt with the subject in my discussion of the first charge. It remains to be seen however whether there is in fact indirect discrimination in this connection.
51. Vehicles with more than three axles covering partial itineraries do not generally constitute through traffic. It is clear from the discussion of the first charge that the treatment they receive in respect of tariffs is better than that accorded to similar vehicles covering the full distance, the great majority of which constitute through traffic. There can therefore be said to be indirect discrimination on grounds of the origin and destination of the vehicle, as defined above.
52. With regard to vehicles with up to three axles travelling a full itinerary on the motorway, however, I note that it is apparent from the figures available for 1994 that on average 145 vehicles a day of this type constituted through traffic and traffic to or from localities in Austria (the only types of traffic covering the full itinerary). Of these, only 43 constituted traffic to or from localities in Austria, while the remaining 102 constituted through traffic. It follows that, of the vehicles with up to three axles that travelled a full itinerary on the Brenner motorway in 1994, between 70.3% (on the assumption that traffic to or from localities in Austria always covers the full itinerary) and 100% (on the assumption that such traffic never covers the full distance) constituted through traffic. The benefits of the more favourable tariff system for vehicles with up to three axles are thus enjoyed predominantly by vehicles in transit. In those circumstances, I do not consider that there is any indirect discrimination on grounds of the origin or destination of the vehicle.
53. As regards the reasons that may justify discrimination against vehicles with more than three axles travelling a full itinerary on the motorway as through traffic, compared with those covering partial itineraries and constituting other types of traffic, I refer to the considerations set out in relation to the Commission's first charge, which apply in this instance also.
Toll rates not related to the costs of the infrastructure network
Preliminary remarks
54. The Commission's third and last charge, which differs greatly from those considered so far, is that the Austrian Government has failed to comply with Article 7(h) of Directive 93/89, according to which toll rates shall be related to the costs of constructing, operating and developing the infrastructure network concerned. In order to determine whether the charge is justified, it is necessary first to clarify the meaning and scope of the provision in question, on which the parties offer conflicting interpretations, and then to ascertain whether or not, in the present case, the tariff changes in 1995 and 1996 were related to the costs of the infrastructure network concerned.
55. I note first that in the whole Austrian motorway network, which covers 660 km, only six sections - including the Brenner motorway - are subject to tolls. As the Austrian Government already requires all vehicles with a maximum permitted laden weight of not less than 12 tonnes, whether registered in Austria or elsewhere, to pay a user charge for travelling on the motorway network, to require those vehicles to pay tolls on the Brenner motorway would, in the absence of any provision to the contrary, constitute an infringement of Article 7(a) of Directive 93/89, which provides that tolls and user charges may not both be imposed at the same time for the use of a single road section. Moreover, the Commission's charge against Austria does not relate specifically to that particular aspect of the tariff system for the Brenner motorway, since it assumes that the exception provided for in the second sentence of the said Article 7(a), to the effect that Member States may also impose tolls on networks where user charges are made, for the use of bridges, tunnels and mountain passes, may apply in this connection. That derogation would apply to the Brenner motorway to the extent to which it can be regarded as a succession of bridges, tunnels and mountain passes. The Commission's interpretation of the saving clause in question - which is not in fact disputed by the Austrian Government - has, as we shall see, important implications for the link between tolls and costs in the case of the Brenner motorway.
Interpretation of Article 7(h) of Directive 93/89
56. According to the Commission, Article 7(h) of Directive 93/89 is to be interpreted as meaning that the toll rates applicable on a given section of motorway must be related to the costs of construction, operation and development associated with that section. It follows that any increase in the level of tolls for the section in question will be justified only if and in so far as it is related to an increase in the costs associated with that section. In the present case, the infrastructure network coincides with the Brenner motorway section and the toll rates, including those resulting from the increases following the tariff reform at issue, must be related to the costs of that section.
57. The Austrian Government contends that, on the contrary, the expression infrastructure network denotes all the motorway sections operating under a single system of financing and thus, in the present case, the whole Austrian motorway system managed by the finance company ASwhich - as we have seen - is responsible for raising the necessary funds on the capital market to construct and develop motorways in Austria. It must be borne in mind that the motorway network run by AScovers 660 km, that only six sections of that network are subject to tolls and that the company is in a permanent state of debt. In these circumstances, the Austrian Government considers that it was necessary to increase the toll rates on the Brenner motorway, in full compliance with Directive 93/89, in order to meet all ASs financial obligations.
58. In my view, the tolls imposed by the Austrian Government on the Brenner motorway are covered by the specific saving clause contained in the second sentence of Article 7(a) of Directive 93/89, to the extent to which that motorway must be regarded as a succession of bridges, tunnels and mountain passes. It follows that the tolls in question are linked with the financial management of that particular motorway section, where the abovementioned works are located, and that the amount of those tolls must therefore take account of the costs of constructing, operating and developing those works, which are managed by the Alpen Strassen company. The Austrian contention that the tolls imposed for the Brenner motorway should be related to the AScompany's financial obligations in connection with the whole Austrian motorway system is tantamount to transforming a purely fortuitous circumstance, namely the fact that ASis financially responsible for the whole Austrian motorway system, into a permanent link between the tolls imposed and the costs incurred, without any regard to the territorial relation between the tolls and the section of motorway - characterised by the presence of extremely costly works - on which they were introduced and in terms of which they are, exceptionally, justified. Moreover, if the tolls collected for the Brenner motorway were to be used to cover ASs debt, they could be increased ad infinitum without ever being regarded as contrary to Directive 93/89, a state of affairs which in my view would be absurd since it would deprive Article 7(h) of all practical effect. I therefore consider that, within the meaning and for the purposes of that provision, it should be recognised that the toll rates on a particular motorway section characterised, as in the present case, by the presence of certain works, must be related to the costs specifically connected with that section. On those grounds alone, I consider that in the present case the Court should accept the contention that the relation between the toll rates and the costs of the infrastructure network should apply only to the Brenner motorway section.
59. Lastly, I must examine certain objections the Austrian Government has raised against the view accepted here, with reference to the undesirable implications it claims such a view would have for the relation between toll rates and volumes of traffic. On little-used motorways, the tolls would have to be rather high to take account of the costs associated with those motorways. However, on heavily used motorways - such as the Brenner motorway - the tolls could be lower because the total costs involved would be shared by a large number of users. This would result in a paradoxical situation where, to maintain the balance between tolls and costs on the Brenner motorway, any increase in the volume of traffic would have to be accompanied by a reduction in the toll rates, which in turn would create the conditions for a further increase in traffic, to be followed by a further drop in tolls, and so on ad infinitum. According to the Austrian Government, a vicious circle of this kind would have adverse effects on environmental protection and on transport policy.
60. Those objections are not well founded. The result described by the Austrian Government is simply attributable to an excessively strict interpretation of Article 7(h) of Directive 93/89 and the relation between costs and toll rates laid down in that provision. However, the fact is that the system of the Directive, inasmuch as it allows tolls to be imposed on certain sections of motorway, even - as in the present case - in addition to user charges, also sets an upper limit, in terms that are of necessity not strict, which the toll rates may not in principle exceed, namely the costs of the infrastructure. That fundamental principle ensures that motorway tariffs are reasonable and moderate.
Toll rates not related to costs in the present case
61. In 1996 the Austrian Government sent the Commission a number of tables showing the income and expenditure of Alpen Strassen AG - which manages the Brenner motorway inter alia - for the financial years 1985-1994 and the estimates for 1995-1997. These tables show quite clearly the pattern of costs incurred in connection with the Brenner motorway and the income from tolls on that motorway. According to Austrian Government estimates for 1996, at the time when the tariff changes at issue were adopted, the costs of constructing, operating and developing the Brenner motorway amounted to ATS 576.4 million, comprising expenditure of ATS 25.5 million on construction and development and ATS 550.9 million on operation, maintenance and administration. The income from tolls in 1996 was expected to be in the region of ATS 1 458 million, a substantial underestimate since it did not take account of the tariff increases introduced in 1996.
62. A comparison of the 1996 estimates for the costs of constructing, operating and developing the Brenner motorway (ATS 576.4 million) and the expected (and underestimated) income from tolls (ATS 1 458 million) shows that the amount received in tolls exceeded the costs by 153%. It follows that the new toll rates bear no relation to the costs of the relevant section of motorway. The fact that Alpen Strassen transfers part of its assets to ASeach year to cover that companys losses confirms, if confirmation were needed, that Alpen Strassen's annual profits from tolls exceed the costs it incurs in managing the Brenner motorway. It should be noted that the amount of the transfer in 1996 was estimated at ATS 1 063.8 million. That being so, it is clear that the tariff changes at issue are not related to the costs of the relevant infrastructure network; they do not appear to be necessary either to cover those costs or to secure the overall financial equilibrium of the company which has a contract to collect the tolls. On that evidence, it is consequently clear that the Austrian Government has infringed Article 7(h) of Directive 93/89.
63. The Austrian Government has also argued that the relation between costs and tolls should be established by reference not to the figures it sent the Commission in 1996 but on the basis of those obtained under the new system for calculating the costs of the infrastructure network based on a proposal from Austria in the context of negotiations between the Community and Switzerland on the carriage of goods by road, a system similar to that used by the Swiss to determine the costs of the Basel-Chiasso motorway corridor. In my view, that system is not applicable in the present case, since its purpose is to define a method for offsetting the costs of the infrastructure network against the charges imposed on the various types of vehicle using it, so as to ensure that Austrian and Swiss motorway charges are more or less equivalent and thus avoid the phenomenon of detour traffic which I mentioned earlier. That special aim clearly makes the system unsuitable for the purpose of calculating the costs of the Brenner motorway, a purpose adequately served by the figures, also produced by Austria, which I quoted earlier. Moreover, Austria has never explained why the figures obtained using the system of calculation devised in the context of the negotiations with Switzerland should be more meaningful than those, considered earlier, which Austria itself forwarded to the Commission during the pre-litigation procedure.
Costs
64. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Republic of Austria has been unsuccessful, I suggest that it should be ordered to pay the costs, as requested by the Commission.
Conclusions
65. In the light of the foregoing considerations, I propose that the Court should settle the dispute between the Commission and Austria as follows:
(1) By adopting on 30 May 1995 and 9 January 1996 two decisions which introduced, with effect from 1 July 1995 and 1 February 1996, certain changes in the system of tolls for vehicles with more than three axles travelling a full itinerary on the Brenner motorway, the Republic of Austria has failed to comply with Article 7(b) and (h) of Council Directive 93/89/EEC of 25 October 1993 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, inasmuch as it has engaged in indirect discrimination on grounds of the nationality of the carrier and the origin or destination of the vehicle and has failed to relate the toll rates to the costs of the infrastructure network.
(2) The Republic of Austria is ordered to pay the costs.