Judgment of the Court (Sixth Chamber) of 5 February 2004 in Case C-157/02 (Reference for a preliminary ruling from the Oberster Gerichtshof ): Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) (Carriage of goods by road — Tolls — Brenner motorway — Prohibition of discrimination — Discrimination on grounds of the nationality of the haulier or of the origin or destination of the vehicle)
Date: 2004-03-20
Institutions: Court of Justice
Subjects: carriage of goods, charges for use of infrastructure, commercial vehicle, interpretation of the law, toll, vehicle tax

C 71/4

EN

Official Journal of the European Union

20.3.2004

JUDGMENT OF THE COURT

(Sixth Chamber)

of 5 February 2004

in Case C-157/02 (Reference for a preliminary ruling
from the Oberster Gerichtshof ): Rieser Internationale
Transporte GmbH v Autobahnen- und Schnellstraßen-
Finanzierungs-AG (Asfinag) (1)

(Carriage of goods by road — Tolls — Brenner motorway —
Prohibition of discrimination — Discrimination on grounds
of the nationality of the haulier or of the origin or destination
of the vehicle)

(2004/C 71/05)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-157/02: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Rieser Internationale Transporte GmbH and Autobahnen- und
Schnellstraßen-Finanzierungs-AG (Asfinag), on the interpret-
ation 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 (OJ 1993 L 279, p. 32)
and Directive 1999/62/EC of the European Parliament and of
the Council of 17 June 1999 on the charging of heavy goods
vehicles for the use of certain infrastructures (OJ 1999 L 187,
p. 42), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, J.N. Cunha
Rodrigues (Rapporteur),
J.-P. Puissochet, R. Schintgen and
F. Macken, Judges; S. Alber, Advocate General; M.-F. Contet,
Principal Administrator, for the Registrar, has given a judgment
on 5 February 2004, in which it has ruled:

1. When contracts are concluded with road users, the provisions of
a directive capable of having direct effect may be relied upon
against a legal person governed by private law where the State
has entrusted to that legal person the task of levying tolls for
the use of public road networks and where it has direct or
indirect control of that legal person.

2. Articles 7(b) 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 and 7(4) of
Directive 1999/62/EC of the European Parliament and of the
Council of 17 June 1999 on the charging of heavy goods
certain infrastructures may, but
vehicles

the use of

for

Articles 7(h) of Directive 93/89 and 7(9) of Directive 1999/
62 may not, be relied upon by individuals against State
authorities so far as concerns the calculating of tolls for vehicles
having a laden weight of at least 12 tonnes used for the carriage
of goods for the full itinerary of the Austrian Brenner motorway
when the Directives have not been transposed, or have been
imperfectly transposed, into domestic law.

3. Austrian hauliers, like the hauliers of the other Member States,
may rely on Articles 7(b) of Directive 93/89 and 7(4) of
Directive 1999/62 in order to claim that because of the
(excessive) rate for the full itinerary on the Austrian Brenner
motorway they suffer discrimination in comparison with road
users using parts only of the itinerary on that motorway.

4.

The judgment in Case C-21/94 Parliament v Council must be
interpreted as preserving the effects of Directive 93/89 until
20 July 1999, the date on which Directive 1999/62 entered
into force.

5. During the period from 20 July 1999 to 1 July 2000, the
Member States were required to refrain from taking any
measures liable gravely to jeopardise the attainment of the result
prescribed by Directive 1999/62 but individuals could not rely
on that Directive against the Member States before national
courts in order to have a pre-existing national rule incompatible
with the Directive disapplied.

(1) OJ C 169 of 13.7.2002.

JUDGMENT OF THE COURT

(Second Chamber)

of 29 January 2004

in Case C-209/02: Commission of the European Communi-
ties v Republic of Austria (1)

(Directive 92/43/EEC — Failure of a Member State to fulfil
obligations — Conservation of natural habitats — Wild
fauna and flora — Habitat of the corncrake — ‘Wörschacher
Moos’ special protection area)

(2004/C 71/06)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-209/02, Commission of the European Communities
(Agent: J.C. Schieferer), with an address for service in Luxem-
bourg, v Republic of Austria (Agent: C. Pesendorfer), with an
address for service in Luxembourg: Application for a declar-
ation that, by authorising the proposed extension of the golf