CELEX: C1998/234/39
Language: en
Date: 1998-07-25 00:00:00
Title: Action brought on 29 May 1998 by the Commission of the European Communities against the Republic of Austria (Case C-205/98)

C 234/20               EN                 Official Journal of the European Communities                                     25.7.98
Action brought on 29 May 1998 by the Commission of                   on 29 May 1998 by the Commission of the European
 the European Communities against the Hellenic Republic              Communities, represented by Laura Pignataro, of its Legal
                        (Case C-204/98)                              Service, and Dr Andreas Buschmann, a national expert
                                                                     with its Legal Service, with an address for service in
                         (98/C 234/38)                               Luxembourg at the office of Carlos Gómez de la Cruz, of
                                                                     its Legal Service, Wagner Centre, Kirchberg.
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 29 May 1998 by the Commission of the European                     The applicant claims that the Court should:
Communities, represented by M. Patakia and B. Mongin,
both of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg.                         1. Declare that, by raising from 1 July 1995 and from
                                                                          1 February 1996 the tolls for the whole Brenner
The Commission claims that the Court should:                              motorway, a transit route through Austria used
                                                                          predominantly by goods vehicles of over 12 tonnes
                                                                          from other Member States, the Republic of Austria
Ð declare that, by not adopting, and by not                               has infringed Article 7(b) of Directive 93/89/EEC (1);
     communicating to the Commission, within the
     prescribed period the laws, regulations and
     administrative provisions necessary to comply with
     Commission Directive 94/38/EC of 26 June 1994                   2. Declare that the Republic of Austria has infringed
     amending Annexes C and D to Council Directive 92/                    Article 7(h) of Directive 93/89/EEC, since it has not
     51/EEC of 18 June 1992 on a second general system                    imposed the said tolls only to cover the costs of
     for the recognition of professional education and                    constructing, operating and developing the Brenner
     training (1), the Hellenic Republic has failed to fulfil its         motorway;
     obligations under the EC Treaty and that directive;
Ð order the Hellenic Republic to pay the costs.
                                                                     3. Order the Republic of Austria to pay the costs.
Pleas in law and main arguments adduced in support:
Under the third paragraph of Article 189 of the EC Treaty,           Pleas in law and main arguments adduced in support:
directives are binding, as to the result to be achieved,
upon each Member State to which they are addressed.
Under the first paragraph of Article 5 of the EC Treaty,             By judgment of 5 July 1995 in Case C-21/94 (2) the Court
Member States are to take all appropriate measures,                  of Justice annulled Directive 93/89/EEC but preserved its
whether general or particular, to ensure fulfilment of the           effects until the adoption of a new directive by the
obligations arising out of the Treaty or resulting from              Council.
action taken by the institutions of the Community. Those
provisions require the Member States to make their
legislation consistent with Community directives within
the periods which those directives lay down. The period              Ð Infringement of Article 7(b) of the directive: Raising
laid down by Article 3(1) of Directive 94/38/EC expired                   the tolls only for the whole Brenner motorway
on 1 October 1994 without the Hellenic Republic having                    (Innsbruck to the Brenner frontier) and only for goods
adopted the laws, regulations and administrative                          vehicles with more than three axles, while the rates for
provisions necessary to comply with that directive.                       the part sections and short section and for goods
                                                                          vehicles with not more than three axles have remained
(1) OJ L 217 of 23.8.1994, p. 8.                                          unchanged, constitutes an indirect difference of
                                                                          treatment on the grounds of the nationality of the
                                                                          road user. It affects primarily transit traffic, 94 % of
                                                                          which is carried out by foreign-registered goods
                                                                          vehicles and only 6 % by Austrian-registered goods
                                                                          vehicles. According to the Austrian Government, c.
Action brought on 29 May 1998 by the Commission of                        82 % of goods vehicles affected by the abolition of the
                                                                          reduced rates for the whole route on the occasion of
the European Communities against the Republic of
                             Austria                                      the first toll increase were registered in other EU
                                                                          States. For heavy goods traffic as a whole (transit and
                        (Case C-205/98)                                   bilateral traffic), the heavy goods vehicles affected by
                         (98/C 234/39)                                    the toll increases consist, according to Austrian
                                                                          information, of c. 84 % foreign vehicles. The part
                                                                          sections of the Brenner motorway and the section
An action against the Republic of Austria was brought                     from Innsbruck to Matrei and back, on the other
before the Court of Justice of the European Communities                   hand, which are not affected by the toll increases, are
 ---pagebreak--- 25.7.98                 EN                 Official Journal of the European Communities                                C 234/21
     naturally used predominantly by goods vehicles in                Reference for a preliminary ruling from the Landesarbeits-
     regional and local traffic, registered in Austria. For           gericht (Regional Labour Court) Mecklenburg-Vorpom-
     traffic on those part sections, significantly, there has         mern by order of that court of 16 April 1998 in the case of
     not even been an adjustment for inflation.                        Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern
                                                                                             (Case C-207/98)
                                                                                              (98/C 234/40)
     There is also an indirect difference of treatment on
     grounds of the nationality of the carrier in the fact
     that the two toll increases together apply only to
     goods vehicles of more than three axles, whereas for
     goods vehicles of up to three axles no toll increases            Reference has been made to the Court of Justice of the
     have been introduced even for the whole Brenner                  European Communities by an order of the Landesarbeits-
     motorway route, since in the latter category vehicles of         gericht Mecklenburg-Vorpommern of 16 April 1998,
     Austrian registration are clearly dominant. The                  which was received at the Court Registry on 2 June 1998,
     different treatment cannot be justified on the basis of          for a preliminary ruling in the case of Silke-Karin
     greater wear on the roads, since not only the number             Mahlburg v Land Mecklenburg-Vorpommern on the
     of axles but also factors such as the total tonnage in           following question:
     proportion to the number of axles, the axle load and
     the suspension system of the driving axles play a
     decisive role in this respect.
                                                                      Is there unlawful discrimination on grounds of sex within
                                                                      the meaning of Article 2(1) of Directive 76/207/EEC of
                                                                      9 February 1976 (1) where an employer does not employ
     Finally, the Brenner motorway toll system also                   an applicant in a vacant post, which she is qualified to
     indirectly differentiates according to the origin and            hold, because she is pregnant and cannot from the outset
     destination of goods vehicles. The imposition of quite           and for the duration of her pregnancy be employed in the
     disproportionately high tolls on the whole route as              post, which is intended to be occupied permanently,
     opposed to the part sections affects especially transit          because of a prohibition on employment under the
     traffic, that is, traffic whose origin and destination are       Mutterschutzgesetz (Maternity Law)?
     both outside Austria. The converse applies to the
     exemption from the toll increase of goods vehicles of
                                                                      (1) OJ L 39 of 14.2.1976, p. 40.
     not more than three axles.
Ð Infringement of Article 7(h) of the directive: Under
     Article 7(h) of the directive, toll increases must be
     related to increased costs of the toll roads themselves.
     In the present case this is quite evidently the case only
     to a very limited extent. The operating company's                Reference for a preliminary ruling from the Landgericht
     expenditure on the Brenner motorway, according to                Potsdam by order of that court of 27 April 1998 in the
     information from the Austrian Government, has partly             case of Berliner Kindl Brauerei AG against Andreas
     fallen considerably in recent years, yet in the same                                          Siepert
     period markedly higher toll income has been received.
                                                                                             (Case C-208/98)
     The      Austrian      Government      wrongly    adduces
     expenditure by the financing company ASFINAG for                                         (98/C 234/41)
     other motorways and expressways in Austria. The
     term network' in Article 7(h) of the directive, in the
     context of the provisions relating to tolls, can only
     mean those roads for whose use tolls are lawfully
     charged. Since Austria levies a general user charge for          Reference has been made to the Court of Justice of the
     motor vehicles with a maximum permitted weight of                European Communities by order of the Landgericht
     not less than 12 tonnes (fourth indent of Article 2 of           Potsdam (Regional Court, Potsdam) of 27 April 1998,
     the directive), that means in the present case only the          received at the Court registry on 2 June 1998, for a
     Brenner motorway itself, in so far as it is to be                preliminary ruling in the case of Berliner Kindl Brauerei
     regarded as a series of bridges, tunnels and mountain           AG v Andreas Siepert on the following question:
     passes'.
(1) OJ L 279 of 12.11.1993, p. 32.                                    Does a contract of guarantee concluded by a natural
(2) [1995] ECR I-1827.                                                person not acting in the course of a trade or profession
                                                                      fall within the scope of Council Directive 87/102/EEC of
                                                                      22 December 1986 for the approximation of the laws,
                                                                      regulations and administrative provisions of the Member
                                                                      States concerning consumer credit (OJ L 42 of 12.2.1987,