Case C-157/02: Reference for a preliminary ruling by the Republic of Austria Oberster Gerichtshof by order of that Court of 22 March 2002 in the case of Rieser Internationale Transporte GmbH against ASFINAG Autobahnen- und Schnellstraßen Finanzierungs-Aktiengesellschaft
Date: 2002-07-13
Institutions: Court of Justice
Subjects: carriage of goods, charges for use of infrastructure, commercial vehicle, interpretation of the law, toll, vehicle tax

13.7.2002

EN

Official Journal of the European Communities

C 169/17

The applicant claims that the Court should:

— declare that by:

Reference for a preliminary ruling by the Republic of
Austria Oberster Gerichtshof by order of that Court of
22 March 2002 in the case of Rieser Internationale
Transporte GmbH against ASFINAG Autobahnen- und
Schnellstraßen Finanzierungs-Aktiengesellschaft

(1) not fully transposing into Austrian law by 1 January
1995, contrary to Article 166 of
the Act of
Accession of Austria, Sweden and Finland to the
European Union, Council Directive 89/369/EEC of
8 June 1989 on the prevention of air pollution from
new municipal waste incineration plants (1) and
Council Directive 89/429/EEC of 21 June 1989 on
the reduction of air pollution from existing munici-
pal waste-incineration plants (2), in so far as it has
not transposed those directives as required into
the Abfallwirtschaftsgesetz (Federal
law on waste
management), the Gewerbeordnung 1994 (Austrian
Trade Code of 1994) and the laws of the federal
states, or, in any event, not informing the Com-
mission of any such transposition, and

(2) not correctly or not fully transposing Article 4(1) of
Directive 89/369/EEC into the Luftreinhaltegesetz
für Kesselanlagen (Law on control of air pollution
from boiler plants) and the Luftreinhalteverordnung
für Kesselanlagen (Decree on control of air pollution
from boiler plants), the Republic of Austria has
failed to fulfil its obligations under those directives;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

— Incomplete transposition of Directives 89/369/EEC and

89/429/EEC:

The Republic of Austria does not dispute that, with the
exception of the legislative provisions notified to the
Commission as transposing those directives (the Law and
Decree on control of air pollution from boiler plants), the
directives have not been transposed into Austrian law
and, in particular, they have not been transposed into the
Federal law on management of waste, the Austrian Trade
Code of 1994, the Umweltverträglichkeitsprüfungsgesetz
(Law on environmental impact assessments) and the laws
of the federal states on waste management.

— Incorrect transposition of Article 4(1) of Directive 89/
369/EEC in the Decree on control of air pollution from
boiler plants: that decree does not contain any of the
technical requirements laid down in Article 4(1) of
Directive 89/369/EEC.

(1) OJ L 163, 14.6.1989, p. 32.
(2) OJ L 203, 15.7.1989, p. 50.

(Case C-157/02)

(2002/C 169/31)

Reference has been made to the Court of Justice of the
European Communities by order of the Republic of Austria
Oberster Gerichtshof (Supreme Court) of 22 March 2002,
received at the Court Registry on 29 April 2002, for a
preliminary ruling in the case of Rieser Internationale Trans-
porte GmbH against ASFINAG Autobahnen- und Schnellstraß-
en Finanzierungs-Aktiengesellschaft on the following ques-
tions:

1.1.
Is the effect of the case-law of the Court of Justice on
the ‘functional concept of the State’ that, when concluding
contracts with road users, the defendant is required to observe
the directly effective provisions of Council Directive 93/89/
EEC of 25 October 1993(1) on the application by Member
States of taxes on certain vehicles used for the carriage of
goods by road and tolls and charges for the use of certain
infrastructures and of Directive 1999/62/EC of the European
Parliament and of the Council of 17 June 1999 (2) on the
charging of heavy goods vehicles for the use of certain
infrastructures, such that the defendant cannot charge a higher
toll than those provisions allow?

1.2.

If question 1.1 is answered in the affirmative:

1.2.1.
Do Article 7(b) and (h) of Directive 93/89 and
Article 7(4) and (9) of Directive 1999/62 have direct effect
according to the case-law of the Court of Justice such that if
the Directives have not been transposed, or have been
transposed incorrectly, into Austrian law they may be relied
on in calculating a toll that complies with the Directives for
vehicles with more than three axles used for the carriage of
goods on the full itinerary of the Austrian Brenner motorway?

1.2.2.

If question 1.2.1 is answered in the affirmative:

How and by reference to what parameters is the
1.2.2.1.
authorised toll for a single journey on the full itinerary to be
calculated in the individual case?

C 169/18

EN

Official Journal of the European Communities

13.7.2002

1.2.2.2.
Can Austrian hauliers too rely on the fact that the
(excessive) rate for the full itinerary discriminates against them
in comparison with road users who use only partial itineraries
of that motorway?

Reference for a preliminary ruling by the Republic of
Austria Oberster Gerichtshof by order of that Court of
26 March 2002 in the case of Friedrich Skalka against
Sozialversicherungsanstalt der gewerblichen Wirtschaft

1.3.

If questions 1.1 and 1.2 are answered in the affirmative:

(Case C-160/02)

1.3.1.
Is the Judgment of the Court of Justice in Case C-21/
94 (3) European Parliament v Council of the European Union,
in which it was held that all the effects of Directive 93/89 were
to be preserved until the Council had adopted a new directive,
to be interpreted as meaning that the effects are to be preserved
until the Member States have transposed the new directive or,
as the case may be, the time limit for transposition has expired?

If question 1.3.1 is answered in the negative: In the
1.3.2.
period from 17 June 1999 to 1 July 2000, are the Member
States under an obligation to have regard to the new Directive,
that is to say does it have advance effects which are required
to be observed?

(1) OJ L 279 (1993), p. 32.
(2) OJ L 187 (1999), p. 42.
(3) [1995], ECR I-1827.

Reference for a preliminary ruling by the House of Lords
by order of that court dated 13 December 2001, in the
case of Gregory Paul Turner against 1) Felix Fareed Ismail
Grovit, 2) Harada Ltd, 3) Changepoint S.A.

(2002/C 169/33)

Reference has been made to the Court of Justice of the
European Communities by order of the Republic of Austria
Oberster Gerichtshof (Supreme Court) of 26 March 2002,
received at the Court Registry on 30 April 2002,
for a
preliminary ruling in the case of Friedrich Skalka against
Sozialversicherungsanstalt der gewerblichen Wirtschaft on the
following question:

Is Article 10a of Regulation (EEC) No 1408/71 (1) of the
Council on the application of social security schemes to
employed persons, to self-employed persons and to members
of their families moving within the Community, as amended
and updated by Council Regulation (EC) No 118/97 of
2 December 1996 (2), in conjunction with Annex IIa, to be
interpreted as meaning that the compensatory supplement
provided for under the Bundesgesetz vom 11. Oktober 1978
über die Sozialversicherung der in der gewerblichen Wirtschaft
selbständig Erwerbstätigen (Federal Law of 11 October 1978
on Social Insurance for Persons engaged in Trade and Com-
merce — ‘the GSVG’) falls within its scope and therefore
constitutes a special non-contributory benefit within the
meaning of Article 4(2a) of the regulation, so that only the
coordinating provisions laid down by Article 10a of the
regulation are applicable to a person, such as the claimant,
who, after 1 June 1992, fulfilled the conditions for the granting
of that benefit?

(Case C-159/02)

(2002/C 169/32)

(1) OJ L 149 (1971), p. 2.
(2) OJ L 28 (1997), p. 1.

Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords
dated 13 December 2001, which was received at the Court
Registry on 29 April 2002, for a preliminary ruling in the case
of Gregory Paul Turner and 1) Felix Fareed Ismail Grovit,
2) Harada Ltd, 3) Changepoint S.A. on the following question:

‘Is it inconsistent with the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
signed at Brussels on 27 September 1968 (subsequently
acceded to by the United Kingdom) to grant restraining orders
against defendants who are threatening to commence or
continue legal proceedings in another Convention country
when those defendants are acting in bad faith with the intent
and purpose of frustrating or obstructing proceedings properly
before the English courts?’

Action brought on 30 April 2002 by the Commission of
the European Communities against the French Republic

(Case C-161/02)

(2002/C 169/34)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 30 April
2002 by the Commission of the European Communities,
represented by G. Valero Jordana and J. Adda, acting as Agents,
with an address for service in Luxembourg.