Opinion of Mr Advocate General Jacobs delivered on 13 March 1992. - Commission of the European Communities v Federal Republic of Germany. - Failure of a Member State to fulfil its obligations - Transport - Tax on the use of roads by heavy goods vehicles. - Case C-195/90.



European Court reports 1992 Page I-03141

Swedish special edition Page I-00073

Finnish special edition Page I-00117



Opinion of the Advocate-General

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My Lords,

1. In this case, the Commission asks the Court to declare that the Law on Charges for the Use of Federal Motorways by Heavy Lorries of 30 April 1990 (the "Strassenbenutzungs-gebuehrengesetz", hereafter "StrBG") is contrary to Articles 76, 95 and 5 of the EEC Treaty. France, Luxembourg, Belgium, the Netherlands and Denmark have intervened in support of the Commission' s application.

2. The StrBG introduces a new tax (hereafter "road tax"), which applies to the use of heavy lorries on certain German roads. In addition, it amends an earlier law, the Kraftfahrzeugsteuergesetz ("Law on Motor Vehicle Tax") of 1 February 1979, under which a tax (hereafter "vehicle duty") is charged on all motor vehicles.

3. A draft of the StrBG was notified to the Commission by the German Government on 21 March 1989, pursuant to Article 1 of the Council Decision of 21 March 1962, instituting a procedure for prior examination and consultation in respect of certain laws, regulations and administrative provisions concerning transport proposed in Member States (OJ, English Special Edition 1959-1962, p. 96), amended by Council Decision 73/402/EEC of 22 November 1973 (OJ 1973 L 347, p. 48). In an opinion addressed to the German Government dated 15 June 1989, and issued pursuant to Article 2 of that decision, the Commission expressed the view that the proposed measures would be contrary to Articles 76, 95 and 5 of the Treaty. The measures were, none the less, approved by the Bundestag and enacted into law. The Commission accordingly began the procedure provided for in Article 169 of the Treaty by issuing a letter of formal notice on 11 April 1990. After receiving the German Government' s observations, the Commission issued a reasoned opinion on 1 June 1990, in which the Commission concluded that, in adopting the StrBG, contrary to Articles 76, 95, 5 and 8a of the EEC Treaty, Germany was in breach of its obligations under the Treaty. Germany was invited to take the measures required to end the breach by 22 June 1990. On receiving the German Government' s response to its reasoned opinion, the Commission concluded that no steps had been taken to remedy the alleged infringement. The Commission accordingly brought the matter before the Court by an application lodged on 23 June 1990, in which an infringement of Articles 76, 95 and 5 of the Treaty was alleged.

4. On the same date, the Commission lodged a request for interim measures under Article 186 of the Treaty. After an oral hearing before the full Court, on 12 July 1990 the Court ordered Germany to suspend the levy of road tax under the StrBG as regards vehicles registered in other Member States, until final judgment in these proceedings.

The Strassenbenutzungsgebuehrengesetz

5. Before turning to the breaches of the Treaty which are alleged by the Commission, it is necessary to consider the StrBG in greater detail. The relevant provisions are Article 1 of the law, which introduces the new road tax, and Article 2, which amends the law relating to vehicle duty.

6. By Paragraph 1(1) of Article 1, road tax is charged on the use by heavy lorries of two kinds of road, namely (a) federal motorways ("Bundesautobahnen") and (b) federal roads ("Bundesstrassen") outside built-up areas; but it is not charged for the crossing of such roads by the shortest route. The categories of vehicles covered are defined by Paragraph 1(2); in particular, their permissible or actual total weight must exceed 18 tonnes, the total weight being the weight of the vehicle plus the weight of its fuel and load. Paragraph 2 exempts certain special categories of vehicle from the tax. By Paragraph 5, the tax can be paid for periods not greater than a year. By Paragraph 6, the tax can be paid in respect of a particular vehicle or (where the period is at least three months) in respect of a particular vehicle user.

7. The annual rates of tax are specified in Paragraph 7(1) of Article 1, and vary, according to the permissible total weight of the vehicle, from DM 1 000 up to a maximum of DM 9 000. Permission can be given to pay the tax for half-yearly or quarterly periods, in which case it is increased by three or six per cent respectively. Increased rates are also specified in subparagraphs 2, 3 and 4, for payments by the month, week or day; these are, respectively 1/10, 1/35 and 1/150 of the annual charge.

8. Paragraph 11 of Article 1 provides for supervision of payment of the tax. By Paragraph 11(4), controls at borders with other Member States may only be carried out by means of random checks in the course of carrying out other controls. Finally, Paragraph 16 deals with the distribution of revenues from the tax, which are in part distributed to the Laender according to amounts lost as a result of the reduction in vehicle duty made by Article 2 of the law (see below). The remaining revenues are to be applied to maintenance work on the roads covered by the new tax.

9. Article 2 amends the Law on Motor Vehicle Tax of 1 February 1979, in particular by substituting a new scale of charges valid for the period 1 July 1990 to 31 December 1993 (the same period of validity as that laid down for road tax in Article 5). As a result of the amendment, the maximum annual charge in respect of a vehicle is DM 3 500, as opposed to the previous maximum of DM 11 000. The maximum supplementary charge for a vehicle trailer is reduced from nearly DM 6 000 to DM 300.

10. It is to be noted that, by virtue of bilateral agreements designed to avoid the double imposition of vehicle duty which were made at various times between Germany and the other Member States, vehicle duty is not paid by any vehicle registered in another Member State. The agreements in question, which I shall refer to as the "bilateral agreements", were in some cases concluded before the Treaty came into force (in the case of Luxembourg and the Netherlands, on 1 July 1930), but in other cases concluded after that date (in the case of Belgium, 17 December 1964, and in the case of France, 3 November 1969). The conclusion or, as the case may be, continuance of such bilateral agreements was in accordance with an objective laid down by Council Decision 65/271/EEC of 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland waterway (OJ, English Special Edition 1965-1966, p. 67), and in particular with Article 1(a) of the decision.

11. According to the official statement of reasons presented to the Bundestag (Drucksache 11/6336), the StrBG pursues two goals: (1) by reducing the rate of vehicle duty charged on heavy vehicles to a level closer to the European average, to equalize the conditions of competition between German transport undertakings and those of other countries; and (2) by introducing a new road tax, to ensure that the contribution of German heavy goods vehicles to infrastructure costs is not reduced, and the previously insufficient contribution of foreign vehicles is increased. From that statement of reasons, it can be seen that there is a close connection between the introduction of road tax and the reduction of vehicle duty. The connection is apparent, equally, from Article 1, Paragraph 16, of the StrBG, which, as we have seen, distributes a part of the revenue raised from road tax in proportion to the amounts of vehicle duty revenues lost to the Laender as a result of the reduction in the latter duty.

12. I will now turn to consider the three breaches alleged by the Commission, namely infringement of the provisions of the Treaty relating to transport (Article 76); breach of fiscal provisions of the Treaty (Article 95); and, finally, breach of the duty of cooperation (Article 5).

Article 76

13. Article 75(1) of the Treaty requires the Council to lay down common rules on transport. Article 76 provides that:

"Until the provisions referred to in Article 75(1) have been laid down, no Member State may, without the unanimous approval of the Council, make the various provisions governing the subject when this Treaty enters into force less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State."

It is common ground that, at the time of the adoption of the StrBG, no provisions relevant to the present case had been laid down under Article 75(1).

14. Although Article 76 can be described as a "standstill" clause, it is clear that it does not preclude the adoption by the Member States of any provisions in the area to be covered by common rules for transport. New provisions in the area of transport are forbidden only if they make, directly or indirectly, the position of carriers from other Member States less favourable as compared with the Member State' s own operators. That requirement can, however, be read in two ways. On one interpretation, what is prohibited are simply modifications to national rules which would result in carriers from other Member States being treated less favourably, under those rules, as compared with a Member State' s own carriers. On that view, if the former group were originally treated more favourably as compared with the latter, it would be permissible to introduce provisions eliminating that more favourable treatment: see Erdmenger in von der Groeben et al., Kommentar zum EWG-Vertrag, 4th edition (Baden-Baden, 1991), p. 1235, and Frohnmeyer in Grabitz (ed.), Kommentar zum EWG-Vertrag (Munich, 1983, 1990), Art. 76 p. 24).

15. On a stricter construction of the requirement laid down by Article 76, however, such provisions would be prohibited. According to such an interpretation, it is forbidden to introduce any new provision which would cause the relative position of carriers from other Member States to deteriorate, even if they were originally in a more favourable position as compared with a Member State' s own carriers. On that view, a provision designed to eliminate an existing advantage enjoyed by the former category of carrier would be excluded: see Dousset in Mégret (ed.), Le Droit de la CEE, Vol. 3 (Brussels, 1971), p. 266, and, apparently in the same sense, Smit and Herzog, The Law of the EEC (New York, 1976, 1991), p. 2-801. Thus although, on that interpretation, it would be permissible to introduce measures affecting the two categories equally, and in particular to introduce measures having adverse effects on both, measures would not be permitted which affected carriers from other Member States more severely, even if they enjoyed a relative advantage when the Treaty entered into force.

16. In my view, the prohibition in Article 76 is more naturally interpreted as imposing the stricter requirement. If Article 76 had been intended simply to lay down the rule that the provisions governing transport must not discriminate against carriers from other Member States, one would have expected it to say so more directly: compare, for example, the standstill provision of Article 37(1) and (2). It is to be noted, however, that no general requirement of non-discrimination is laid down by the Treaty for the domain of transport. By Article 61(1) of the Treaty, the general rules of the Treaty concerning the freedom to provide services do not extend to transport: see Case 13/83 Parliament v Council [1985] ECR 1513, at paragraph 62 of the judgment; although particular provision is made for the abolition of discrimination in certain cases: see Article 79(1). Thus, for example, a Member State may in principle continue to subject non-resident carriers to special conditions as regards the operation of transport services on its territory ("cabotage"), until measures are adopted by the Council under Article 75(1)(b): see C-17/90 Pinaud Wieger v Bundesanstalt fuer den Gueterfernverkehr [1991] ECR I-5253. Accordingly, the rule laid down by Article 76 cannot be that a Member State' s existing provisions should not discriminate against carriers from other Member States. It seems to me therefore that Article 76 must be intended to preserve the relative position of a Member State' s own carriers and carriers from other Member States as it was when the Treaty entered into force: that is to say, it is intended to preserve the status quo, with whatever relative advantages and disadvantages that entailed. Moreover, it seems unlikely that the authors of the Treaty intended to allow a Member State to remove existing benefits enjoyed by carriers from other Member States, while not requiring it to eliminate any discrimination in favour of its own carriers.

17. The more strict interpretation is also consistent with the approach the Court has generally adopted in relation to transitional provisions of the Treaty. However, for the purposes of deciding the present case, it may be unnecessary to reach a definitive conclusion on the interpretation of Article 76. For, even if it were permissible, consistently with that article, to eliminate a relative advantage enjoyed under national provisions by carriers from other Member States, it does not seem to me that it would be permissible to impose a new disadvantage designed to redress inequalities in the conditions of competition.

18. It is true that such inequalities may result, in particular, from differences in the rates of vehicle duty paid by carriers in their home States, combined with a network of bilateral agreements preventing the double imposition of duty. As the German Government points out, the Treaty does not, in principle, prevent a State from reducing its rates of vehicle duty with a view to improving the conditions of competition enjoyed by its own carriers. Such a measure would admittedly have an indirect effect on carriers from other Member States, since their competitive position would by implication be affected; but in my view such effects would be too remote to be caught by Article 76, since they result from the differences between the relevant systems of national law, rather than arising from the provisions of any one system. By the same token, however, a Member State cannot be permitted to impose a relatively greater increase in the burden of taxation borne by carriers from other Member States, with the aim of reducing a supposed competitive advantage. For such a measure would make the provisions of its own legislation less favourable to those carriers, in order to eliminate an advantage arising, not under that legislation itself, but rather from differences between two national systems of taxation.

19. Thus, even if a Member State were entitled, consistently with Article 76, to redress an anomaly in its own legislation which gave more advantageous treatment to carriers from other Member States, it would not be entitled to offset a lower tax burden imposed in another Member State by increasing its own charges on such carriers. On any possible construction of Article 76, therefore, Germany would not be permitted to increase the burden of taxation it imposes on carriers from other Member States in order to eliminate an alleged competitive advantage. As the German Government makes plain in its defence, however, the StrBG does in fact pursue the aim of reducing the competitive advantages which are enjoyed by carriers from other Member States by virtue of a lesser burden of domestic taxation.

20. I would add that such an attempted equalization of the conditions of competition is precisely the kind of goal which can be most effectively pursued at a Community level, and which a standstill clause such as Article 76 is surely designed to prevent Member States from attempting on their own. Unilateral action of that kind may, in particular, provoke retaliatory action by other Member States designed to restore the previous position, thereby making Community-wide agreement on measures of harmonization even more difficult to achieve. Accordingly, in the absence of clear wording tending to the contrary conclusion, it seems to me that Article 76 must, on any view, be interpreted as excluding such an attempted equalization.

21. It follows that, in deciding whether the contested measures are compatible with Article 76, it is not relevant that some carriers bear a lower burden of vehicle duty in their home State. The only question which need be considered is whether the StrBG treats carriers from other Member States less favourably than it treats the equivalent German carriers.

22. The answer to that question is, on the face of it, clear. German carriers are compensated for the introduction of road tax by means of a reduction in vehicle duty. Such compensation is not available to carriers from other Member States, since none of them pay German vehicle duty. Furthermore, according to the figures cited by the German Government in its defence, carriers from two Member States, namely Denmark and the United Kingdom, would actually be placed in a worse position than German carriers as a result of the StrBG, even when differences in vehicle duty are taken into account. In the case of the United Kingdom, charges for a 38 tonne lorry would amount to ECU 7 856, as compared to ECU 5 143 for a German carrier; for Denmark, the figure given is ECU 5 343. Thus, even if it could be shown that, taken in isolation, the introduction of road tax affected all carriers equally, the introduction of the new tax, combined with the compensating reduction in vehicle duty, would have the effect of treating carriers from other Member States less favourably as compared with German carriers, contrary to Article 76 of the Treaty.

23. I must however consider a number of arguments put forward by the German Government which, if successful, would avoid that result.

24. First, the German Government suggests that, because the reduction in vehicle duty and the imposition of road tax would, taken separately, each be compatible with the Treaty, a measure which accomplishes both at the same time must also be compatible. That argument cannot however be accepted. It may indeed be the case that Article 76 permits Germany to reduce its rates of vehicle duty, in the absence of any related increase in other forms of taxation on motor vehicles, since as we have seen, such a reduction cannot in itself be regarded as a measure having an "effect" on other carriers for the purposes of that provision. Accordingly, I cannot accept the Commission' s argument, on pages 18-19 of its application, that a reduction in vehicle duty would be contrary to Article 76, even when considered in isolation from other measures; in any event, the Commission appeared to abandon that contention at the hearing.

25. Similarly, it is true that Article 76 does not in principle prevent the introduction of a tax on road use affecting German and non-German carriers equally, since on that hypothesis their relative position under German legislation would be unaffected. However, two measures may be contrary to the Treaty when combined, even where each is lawful when considered in isolation, for the combined effect of the measures may differ from the effect of either measure taken alone. At the hearing, the French Government gave an example of such a case. In Case 47/69 France v Commission [1970] ECR 487, the measure at issue was state aid to the French textile industry, financed by means of a quasi-fiscal charge levied on both domestic and imported products. The Court held that, even if the charge itself were held to be compatible with Article 95 of the Treaty, and even if the aid, abstracted from its mode of finance, could be said to be compatible with Article 92, the Commission was none the less entitled to conclude that the aid was contrary to the Treaty when the aid was considered in conjunction with its method of financing: see paragraphs 13 to 16 of the judgment.

26. The German Government also argues that, since some of the bilateral agreements were concluded after the Treaty came into force, the position of carriers from some Member States has improved rather than deteriorated as compared to their position prior to the Treaty. However, as we have seen, in the case of some other Member States the bilateral agreements predate the Treaty. Thus, some carriers already enjoyed exemption from German vehicle duty when the Treaty came into force. It is clear that Article 76 should not be interpreted as permitting discrimination between the two groups of carrier, and the StrBG does not in any case make such a distinction.

27. Also to be rejected is the German Government' s argument according to which it is the bilateral agreements which are the "cause" of the less favourable position resulting from the StrBG, and not the StrBG itself. It is true that the agreements provide the background against which the effects of the StrBG are to be assessed; but it is clear that they are not themselves responsible for the deterioration in the position of the non-German carriers. They provide, at most, a convenient mechanism through which German carriers could be compensated for the introduction of road tax by means of a reduction in vehicle duty not affecting other carriers.

28. Next, the German Government suggests that it would be more appropriate for the Commission to exercise its powers under Articles 101 or 102 of the Treaty, which enable the Commission to propose measures remedying distortions of competition caused by differences in national laws, rather than to bring an action alleging a breach of Article 76. However, the objection to the StrBG is not, primarily at least, that it introduces distortions of competition, but rather that it attempts to remedy alleged distortions by means of unilateral action. Moreover, even to the extent that the StrBG does in fact introduce new distortions, it seems to me that the Commission would still be entitled to bring an action under Article 76, rather than using its powers under Articles 101 or 102, since it is clear that the absence of approximating measures taken pursuant to Articles 100 to 102 of the Treaty does not excuse a breach of other provisions of the Treaty. It seems to me furthermore that, contrary to the suggestion advanced by the German Government in its defence, Article 76 is not to be regarded as a specific case of the more general provisions of Articles 101 and 102, and accordingly to be given a narrow construction. On the contrary, Article 76 is a standstill provision of general scope which, if anything, is to be interpreted broadly.

29. It can in fact be argued that the StrBG does introduce new distortions in the conditions of competition. In the case of some Member States, namely Denmark and the United Kingdom, the burden of vehicle duty is greater than, or at least comparable with, the burden borne by German carriers before the reduction effected by the StrBG. No exemption from road tax is however provided for carriers from those Member States. As we have seen, on the German Government' s own estimates, the net effect of the changes introduced by the StrBG is to place carriers from both Denmark and the United Kingdom under a greater total burden of taxation as compared with their German equivalents. In the case of the United Kingdom, the burden borne when United Kingdom vehicle duty is added to German road tax is estimated at more than 150% of the burden on German carriers. Even on the German Government' s own view of what measures are consistent with Article 76, therefore, it is difficult to see how the StrBG could be compatible with the Treaty. In particular, such an increase in the burden on United Kingdom carriers cannot be justified by the fact that, as the German Government claims, the number of United Kingdom carriers using German roads is relatively small.

30. Finally, the German Government submits that the contested measures can be justified on grounds of environmental protection; to that end, it was necessary to ensure that the environmental costs resulting from the use of heavy lorries were borne by the operators of the lorries, including those from other Member States, in order, in particular, that freight might be diverted from road to rail.

31. The great importance of environmental considerations in the field of transport must of course be accepted, and is indeed not in dispute. It is to be noted that Article 76 does not exclude all measures which increase the contribution made by transport operators to the environmental costs of their operations, and no objection is taken to the measures contained in the StrBG to the extent that they increase to the same extent the contribution made by German and non-German carriers. It seems to me however that it is impossible to justify, on environmental grounds, a relatively greater increase in the contribution made by carriers from other Member States, the environmental impact of whom has not been shown to be any greater than that of German carriers.

32. At the hearing, the German Government suggested that the proportion of international freight crossing the German border carried by rail was, at an estimated figure of 10%, unduly low, as compared with an estimated figure of 21% for internal German freight. It suggested, moreover, that the reason for the discrepancy was to be found in the lower burden of taxation borne by non-German carriers. The German Government did not however explain how a reduction in the burden of vehicle duty on German road transport operators would contribute to the diversion of traffic to the rail network. In my view, the fact that 21% of all German domestic freight is carried by rail is not sufficient in itself to establish that the same proportion of international freight coming into Germany would be so transported if the costs presently borne by non-German carriers were increased. As the Commission points out, there is some likelihood that haulage business would be transferred to German road carriers rather than to the rail network. From the official statement of reasons for the StrBG presented to the Bundestag, it appears that the reason for requiring a relatively greater increase on the amounts paid by non-German carriers was not, in fact, protection of the environment, but rather equalization of conditions of competition between German and non-German carriers. That reason is clearly of an economic and not an environmental nature.

33. It is no doubt true that when, in 1990, the German Government undertook the task of reforming its system of road and vehicle taxation, it was confronted with something of a dilemma. On the one hand, it wished, for reasons which are entirely laudable, to devise a system which conformed to the principle that "the polluter pays", a principle which moreover forms part of the Community' s environmental policy (see Article 130r(2) of the Treaty). Thus, pursuant to that principle, non-resident carriers should bear some of the costs caused by their operations. On the other hand, to impose an equal additional burden on German and non-German operators alike would have increased the overheads of the former group to what was considered an unacceptable level. The German Government evidently took the view that the dilemma could only be resolved by devising a means of compensating German carriers for the increased burden which would otherwise arise from the introduction of road tax.

34. If, however, it is true that the German Government was confronted by a dilemma, it was one which could only lawfully be resolved by Community action or agreement. The fact that in 1990 the Community still had not exercised its powers under Article 75(1) of the Treaty does not excuse unilateral action taken in contravention of the standstill provision laid down by Article 76. It is to be noted, furthermore, that Article 76 does not contain an absolute prohibition on unilateral action, since it provides for the possibility of the Council giving its unanimous approval to measures taken by an individual Member State. It was therefore for the German Government to attempt to obtain approval in the Council for the measures it considered necessary.

35. I accordingly reach the conclusion that introduction of road tax by the StrBG, combined with the reduction in vehicle duty made by the same law, is contrary to Article 76 of the Treaty.

36. The Commission argues, in addition, that even when considered in isolation from the reduction in vehicle duty, the introduction of road tax in the form laid down by the StrBG is contrary to Article 76. According to the Commission, road tax, even considered in itself, is a measure which, in that form, bears more heavily on carriers from other Member States. It seems to me that there is much force in the Commission' s argument.

37. As the Commission points out, payment of road tax on an annual basis is considerably more advantageous than its payment by the month, week or day. The Commission suggests that German carriers are more likely to pay the tax by the longer period, whereas foreign carriers, who are more likely to make individual journeys to and from Germany, will tend to become liable on a daily or weekly basis. The Commission argues, furthermore, that international transport tends to be concentrated on the routes which are liable to the tax, whereas a greater proportion of internal traffic takes place on minor roads, which are unaffected by it.

38. In my view, it must be accepted that a carrier from another Member State is less likely to be able to take full advantage of the more favourable annual rate than a German carrier, and more likely to wish to pay at an appropriate daily rate. It is true that, as the German Government points out, its own carriers will in part be engaged in international traffic, and will therefore be operating vehicles which do not circulate continuously in Germany. In the case of such vehicles, the annual rate may not be advantageous even for German carriers, although it is to be noted that it is also possible to pay the tax on a person-related rather than a vehicle-related basis. However, some German carriers will also be operating vehicles which circulate continuously on the home territory. Even if such vehicles remain idle for a portion of the year, either on account of holidays or for other reasons, it seems to me implausible to suggest that, for those carriers, substantial savings would not be made by paying at the annual rate. Accordingly, it seems to me difficult to escape the conclusion that road tax bears more heavily on carriers from other Member States.

39. That conclusion is not affected by the consideration that, as road tax is presently structured, many foreign operators might prefer to pay the annual rate, although, in its defence, the German Government cites a survey to that effect. Clearly, if the daily rate is as much as 1/150 of the annual rate, it may be worth paying road tax on an annual basis, even if the vehicle is outside German territory for a significant portion of the year. As the Commission points out in its reply, in such circumstances the annual rate may be preferable precisely because the daily rate is so disadvantageous. The fact remains that even foreign carriers who choose that option may be affected more severely than German carriers paying on the same basis, but who can make fuller use of their entitlement.

40. In my view, therefore, the Commission has established a sufficient likelihood that the new tax introduced by Article 1 of the StrBG, even when considered in isolation from the reduction in vehicle duty made by Article 2 of the same law, would affect carriers from other Member States to a greater extent than German carriers, and that the introduction of road tax is therefore contrary to Article 76 of the Treaty, even when the new tax is considered separately. As we have seen, however, the introduction of road tax is in any case incompatible with Article 76 when the effects of the reduction in vehicle duty are also taken into account.

Article 95

41. The Commission also claims that the adoption of the StrBG infringes Article 95 of the Treaty, which prevents Member States from imposing, directly or indirectly, any internal taxation of any kind on the products of other Member States in excess of that imposed directly or indirectly on similar domestic products. That is the case, according to the Commission, whether the introduction of road tax and the reduction in vehicle tax are considered separately or in conjunction.

42. At first sight, it might seem anomalous that the same measure could simultaneously offend against two independent provisions of the Treaty. In the present case, however, the measure is being considered from two distinct points of view: as a measure affecting the transport operators, on the one hand, and as a measure affecting the goods carried, on the other. Article 76 is relevant to the first aspect, but in the second case it is Article 95 which is the relevant provision. Thus, neither Article 76 nor Article 95 can be considered as a lex specialis in relation to the other.

43. I do not think that a reduction in vehicle duty paid by German carriers, considered in isolation, could be regarded as an imposition, even indirect, of a charge on the products transported by other carriers. It is true that in some circumstances a Member State' s system of vehicle duty might be held to discriminate against the importation of the vehicles themselves which are subject to the tax: see Case 112/85 Humblot [1985] ECR 1367, at paragraph 14 of the judgment. The Commission' s complaint does not however relate to the effect of vehicle duty on the importation of motor vehicles, and its case must accordingly rest upon the combined effect of the reduction in vehicle duty made by Article 2 of the StrBG and the imposition of road tax made by Article 1.

44. As the Commission points out, it is clear from the Court' s judgment in Case 20/76 Schoettle v Finanzamt Freudenstadt [1977] ECR 247, that Article 95 can apply, in principle, to a charge imposed on the international transport of goods by road. In paragraphs 12 to 15 and 22 of that judgment, the Court stated that the purpose of Article 95 is to remove disguised restrictions on the free movement of goods which may result from the tax provisions of a Member State, and that such restrictions may result, in particular, from a tax imposed on a specific activity of an undertaking, rather than on products as such, provided that the tax has an immediate effect on the costs of national and imported products. Such a tax will only be compatible with Article 95 if it is applied in a manner which does not give rise to any discrimination, however minor and incidental, against imported products.

45. It must therefore be considered whether road tax, as introduced by the StrBG, satisfies the criteria for a breach of Article 95 laid down in Case 20/76 Schoettle. In the first place, it is clear, in my view, that the tax imposes a charge on transport undertakings which has an immediate effect on the cost of the products carried by those undertakings. It is true that road tax differs in certain respects from the tax at issue in Case 20/76 Schoettle. In particular, the latter tax was imposed according to distance covered on national territory and the weight of the goods, whereas road tax is assessed on the basis of periods of use of the federal road network and the weight of the lorries (including their permissible load). Thus, lorries pay the tax even when they are empty. It seems to me, however, that a charge assessed on the latter bases has just as immediate an effect on the transportation costs of goods as does a charge based on distance travelled and actual weight of the goods carried. In particular, the charge paid by an empty lorry returning from its point of delivery will have an immediate effect on the cost of the goods carried on the outward journey.

46. As we have seen, the introduction of road tax will only be contrary to Article 95 if it affects goods from other Member States more severely than it affects domestic products. Here it is to be noted that while, as the German Government points out in its defence, both German and other carriers may be responsible for importing goods into Germany, the internal distribution of goods produced within Germany will in general be effected by German carriers, to the exclusion of carriers from other Member States. Thus, since transportation costs are an element of the total costs of the goods, a tax which imposes a greater burden on the latter group of carriers will affect imported goods to a greater extent than it affects domestic products.

47. As we have already seen when considering the compatibility of the StrBG with Article 76 of the Treaty, carriers from other Member States are indeed affected more severely than German carriers by the introduction of road tax and the reduction in vehicle duty (see above, paragraphs 22 and 40). Thus, on the one hand, German carriers alone benefit from the reduction in vehicle duty which serves to compensate them, in whole or in part, for the imposition of road tax; and on the other, German carriers, particularly those distributing domestically produced goods within Germany, are more likely to benefit from the more advantageous annual rates of payment. It is to be noted that the statement of reasons for the StrBG given to the Bundestag does in fact appear to accept that prices of imported goods are more liable to be adversely affected than those of domestic products (see section I.4 of the statement of reasons, headed "Auswirkungen auf die Preise").

48. Accordingly, I reach the conclusion that the StrBG is a measure having the effect of discriminatory internal taxation, contrary to Article 95 of the Treaty, as well as being contrary to the standstill provision contained in Article 76.

Article 5

49. In addition to breaches of Article 76 and Article 95 of the Treaty, the Commission alleges a separate breach of the duty of cooperation contained in Article 5. In its letter of formal notice, the Commission specified four respects in which the adoption of the StrBG might be contrary to that duty: (1) unilateral action by Germany would be liable to provoke, in response, unilateral measures on the part of other Member States, thereby making more difficult the realization of a common transport policy; (2) further delays would result for the adoption by the Community of the Commission' s proposals for the harmonization of taxation on road transport; (3) new frontier controls would become necessary where road tax was payable at the German frontiers; and (4) the Community' s negotiations with Austria, Switzerland and Yugoslavia on issues of transit and road taxation would be affected. The Commission also appeared to suggest that Germany was under a general duty, under Article 5, to abstain from adopting measures in an area where a proposal for Community action was pending before the Council. It appears that those allegations are maintained, in substance at least, in the Commission' s reasoned opinion and in its application.

50. It is true that when the StrBG was adopted, a Commission proposal for the implementation of Decision 65/271/EEC had been submitted to the Council: see the Proposal for a Council Directive on the charging of transport infrastructure costs to heavy goods vehicles, COM(87) 716 final, submitted to the Council on 15 January 1988 (OJ 1988 C 79, p. 8), subsequently modified by COM(90) 540 final, which was submitted to the Council on 27 November 1990 (OJ 1991 C 75, p. 1). It does not seem to me however that the submission of such a proposal, in an area in which the Community does not yet enjoy exclusive competence, is in itself sufficient to preclude the adoption of national rules in the same domain.

51. There is of course no doubt that where the Community does enjoy exclusive competence, the powers of the Member States are severely limited, even where the Community' s competence has not yet been exercised. Thus, in a case concerning the conservation of fishery resources, the Court held that although Member States were permitted to amend existing measures to take into account changing circumstances, their power did not extend to measures amounting to the elaboration of a new conservation policy: see Case 804/79 Commission v United Kingdom [1981] ECR 1045, at paragraphs 19 to 22 of the judgment.

52. It is to be noted however that in that case the exclusive competence of the Community arose as a result of the expiration of the transitional period laid down by Article 102 of the Act of Accession: see paragraphs 17 and 18 of the judgment. In the present case, on the other hand, Article 75(2) of the Treaty requires the Council to act before the end of the transitional period, laid down by Article 8(1) of the Treaty, only in respect of the provisions referred to in points (a) and (b) of Article 75(1), namely common rules for international transport and conditions for the operation of "cabotage". Thus, as far as the harmonization of taxes on transport is concerned, it would seem that the Member States continue to enjoy provisional competence until the Council has actually exercised its powers, although that competence must of course be exercised within the limits laid down, in particular, by Article 76.

53. It is true that even where Member States retain provisional competence, they must still have due regard to their general duty, under Article 5, not to jeopardize the attainment of the Community' s objectives: see Case 61/77 Commission v Ireland [1978] ECR 417, at paragraph 65 of the judgment. Thus, there may be circumstances in which the adoption of unilateral measures by a Member State could be shown to endanger either the adoption of Community measures or the progress of negotiations with third countries. In the present case, however, the Commission has offered no concrete evidence that the adoption of the StrBG has put in jeopardy either the measures pending before the Council or the negotiations with Austria, Switzerland and Yugoslavia. As far as the danger of provoking retaliatory measures by other Member States is concerned, it must be assumed that the Member States in question will have due regard to their obligations under Article 76 of the Treaty.

54. Finally, the Commission' s suggestion that the introduction of road tax would lead to new controls at the German border is also, to my view, unconvincing; as we have seen, Paragraph 11(4) of the StrBG restricts border controls on the non-payment of the tax to random checks made in the course of carrying out other controls. I conclude therefore that the Commission has not established any of the breaches of Germany' s duty of cooperation under Article 5 which it has alleged.

55. It may however be appropriate to mention two further matters raised by the German Government which might raise issues under Article 5, although neither is directly relevant to any of the breaches of the Treaty which have been alleged by the Commission.

56. First, the German Government suggests that it would be entitled to denounce the bilateral agreements with other Member States on the non-imposition of vehicle duty. It concludes that, even if the imposition of road tax combined with the reduction in vehicle duty were regarded as having an effect similar to such a revocation, that would not be a reason for holding the StrBG to be contrary to the Treaty.

57. It will be recalled that Council Decision 65/271/EEC of 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland motorway, cited above at paragraph 10, lays down a number of objectives for the Community' s common transport policy. Article 1(a) of the decision provides, in particular, that:

"With effect from 1 January 1967, double taxation of motor vehicles when such vehicles are being used for carriage in a Member State other than that in which they are registered shall be abolished."

Article 14 provides that:

"Measures required to give effect to this Decision shall ... be adopted by the Council by not later than six months before the date when such measures are to enter into force ... ."

Thus, the elimination of double taxation was an objective laid down by the decision, but not yet implemented by it. It is clear however that such an objective laid down by a decision made under the Treaty is included among the objectives protected by Article 5 of the Treaty: see Case 71/76 Thieffry v Conseil de l' ordre des avocats à la Cour de Paris [1977] ECR 765, at paragraphs 13 to 15 of the judgment.

58. Thus, even in the absence of any measures taken by the Council in implementation of Article 1(a) of the decision, it seems to me that Member States are required by Article 5 of the Treaty to refrain from adopting any measure which would jeopardize the attainment of the objective of eliminating the double taxation of motor vehicles. In the event, the avoidance of the double imposition of vehicle duty is ensured, as we have seen, by the system of bilateral agreements made between all the Member States. Accordingly, although the German Government may be correct when it states that denunciation of the agreements by a Member State would not in itself be incompatible with Article 76 of the Treaty, it remains the case that such a denunciation would frustrate the declared aims of the Community, and would hence be incompatible with Article 5.

59. In the absence of harmonization of the rates of vehicle duty, one consequence of the elimination of double taxation is that the burden of vehicle duty may vary as between vehicles from two different Member States circulating on the roads of both States. The introduction of road tax by the StrBG, combined with the reduction in German vehicle duty, had the express aim of dealing with the consequences of such disparities for the conditions of competition of transport undertakings. Thus, such disparities were to be reduced, and in some cases eliminated, by raising some of the revenue previously raised by way of vehicle duty from a new road tax paid by all carriers using German roads.

60. In my view, it is difficult to reconcile the intended effects of such a measure with the goal of eliminating the double taxation of motor vehicles, which goal must in my view be taken to include the avoidance of measures having an equivalent effect, in whole or in part, to such double taxation. The StrBG might be thought to have such an equivalent effect, because it introduces a charge paid by carriers from other Member States which has the specific aim of enabling the burden of vehicle duty paid by German carriers to be reduced. For that reason, there might well be a case for regarding the adoption of the StrBG as a measure contrary to Germany' s obligations under Article 5 of the Treaty. However, since the Commission has not alleged such a breach of Article 5, I do not think it would appropriate to make such a finding in the present instance.

61. It remains to consider the argument advanced by the German Government at the hearing, according to which the compensating reduction in vehicle duty made by the StrBG, far from being incompatible with Commission' s proposals, was actually vindicated by them. Thus, according, in particular, to Article 11 of the Commission' s amended proposal:

"As from 1 January 1992, national authorities may reimburse vehicle taxes paid to them on the basis of the number of vehicle km driven on toll motorways in the Community. Reimbursement shall take place on a yearly basis by application of the following formula ...".

It seems to me however that such a provision, once it is seen in the context of the harmonizing directive of which it forms a part, cannot be invoked to justify the unilateral measures at issue in the present proceedings. It is to be noted, in particular, that Article 8 of the proposed directive preserves the general principle that heavy goods vehicles of one Member State should be exempt from the vehicle duty of other Member States. Road tolls on such vehicles are permitted by Article 5 of the directive, but they must be related to the costs of the specific infrastructure concerned. According to the original proposal, tolls may only be introduced for structures completed after the entry into force of the directive, but that condition is replaced, in the amended version of Article 5(2), by a new restriction which confines tolls to "specific motorways, or motorway networks or parts thereof". Article 5(2) of the amended directive lays down in addition a precise and restricted definition of "motorway". Reimbursement of vehicle duty is permitted by Article 11 only in respect of the amounts paid on the toll motorways thereby defined, and is determined by a precise formula based on kilometres travelled.

62. Thus, it is questionable, in my view, whether the measures introduced by the StrBG would have been permitted by the proposed directive, even if it had been in force when that law was adopted on 30 April 1990. However, the fact that such a proposal was under consideration by the Council could not in any case justify the adoption of measures by Germany which are contrary to Articles 76 and 95 of the Treaty.

63. Since the Commission has not established any independent breach of Article 5, its application should be dismissed in that respect. Nevertheless, since it has succeeded in the principal allegations, it is entitled to costs.

Conclusion

64. I am accordingly of the opinion that the Court should:

(1) declare that the Federal Republic of Germany, by adopting Articles 1 and 2 of the Strassenbenutzungs-gebuehrengesetz of 30 April 1990, has failed to fulfil its obligations under Articles 76 and 95 of the EEC Treaty;

(2) for the rest, dismiss the application;

(3) order the Federal Republic to pay the costs, including the costs of the interim proceedings.

(*) Original language: English.