European Commission v Republic of Austria.
Date: 2011-12-21
50. In assessing whether the pleas of inadmissibility raised against the statements in intervention are well founded, it must be recalled that under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union an application to intervene is to be limited to supporting the form of order sought by one of the parties. That provision does not, however, preclude an intervener from putting forward arguments that are new or different from those of the party it supports, as long as its purpose is to support the form of order sought by that party (see, inter alia, Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg  v High Authority  [1961] ECR 1; Case C‑150/94 United Kingdom  v Council  [1998] ECR I‑7235, paragraph 36; and Case C‑334/08 Commission  v Italy  [2010] ECR I‑0000, paragraphs 53 to 55).
52. While those arguments differ from those of the Commission, they none the less relate to complaints raised by the Commission and are intended to support the form of order sought by it. They are intended to contribute to the success of the action for failure to fulfil obligations by shedding further light on the dispute (see, to that effect, Case C‑185/00 Commission  v Finland  [2003] ECR I‑14189, paragraph 92).
111. In those circumstances, it is for the Member States to take appropriate and consistent measures aimed at compliance with the limit value, having regard to all the material circumstances and the interests in play (see, to that effect, Case C‑320/03 Commission  v Austria , paragraph 81, and Case C‑237/07 Janecek  [2008] ECR I‑6221, paragraphs 45 and 46). While they have a discretion in that respect, they must none the less exercise it consistently with the provisions of the EC Treaty, including the fundamental principle of the free movement of goods.
113. It must be recalled that the free movement of goods is one of the fundamental principles of the Treaty. That freedom entails the existence of a general principle of free transit of goods within the European Union (see, inter alia, Case 266/81 SIOT  [1983] ECR 731, paragraph 16; Case C‑367/89 Richardt and ‘Les Accessoires Scientifiques’  [1991] ECR I‑4621, paragraph 14; and Case C‑320/03 Commission  v Austria , paragraphs 63 and 65).
116. However, the existence of such alternative solutions does not negate the existence of a restriction of the free movement of goods (see, to that effect, Case C‑320/03 Commission  v Austria , paragraph 67). The section of the A 12 motorway is one of the principal land transport routes between southern Germany and northern Italy. By forcing the undertakings concerned to seek viable alternative solutions for the transport of the goods covered by the contested regulation, the sectoral traffic prohibition is liable to have a substantial effect on the transit of goods between northern Europe and northern Italy (see, to that effect, Case C‑320/03 Commission  v Austria , paragraphs 66 and 68).
117. In those circumstances, the sectoral traffic prohibition must be regarded as constituting a measure having equivalent effect to quantitative restrictions, which in principle is incompatible with the obligations under Articles 28 EC and 29 EC, unless that measure can be justified.
– Possible justification of the restriction
119. It is settled case-law that national measures liable to obstruct intra-Community trade may be justified on one of the public-interest grounds set out in Article 30 EC, such as the protection of human health and life, or one of the overriding requirements relating inter alia to protection of the environment, provided that the measures in question are proportionate to the objective sought (see, inter alia, Case 120/78 Rewe-Zentral (‘Cassis de Dijon’)  [1979] ECR 649; Case 302/86 Commission  v Denmark [1988] ECR 4607, paragraph 9; Case C‑270/02 Commission  v Italy  [2004] ECR I‑1559, paragraph 21; Case C‑463/01 Commission  v Germany  [2004] ECR I‑11705, paragraph 75; and Case C‑320/03 Commission  v Austria , paragraph 70).
120. It should be recalled that the protection of health and the protection of the environment are essential objectives of the European Union. Article 2 EC states that the Community has, as one of its tasks, to promote ‘a high level of protection and improvement of the quality of the environment’ and Article 3(1)(p) EC states that the activities of the Community are to include a contribution to the attainment of ‘a high level of health protection’ (see, to that effect, Case 240/83 ADBHU  [1985] ECR 531, paragraph 13; Case C‑195/90 Commission  v Germany  [1992] ECR I‑3141, paragraph 29; and Case C‑487/06 P British Aggregates  v Commission  [2008] ECR I‑10515, paragraph 91).
121. Furthermore, in accordance with Articles 6 EC and 152(1) EC, the requirements of environmental protection and public health must be taken into account in the definition and implementation of Community policies and activities (see, to that effect, Case C‑440/05 Commission  v Council  [2007] ECR I‑9097, paragraph 60). The transversal and fundamental nature of those objectives is also reaffirmed in Articles 37 and 35 respectively of the Charter.
122. As to the relationship between the objectives of protection of the environment and protection of health, it is apparent from Article 174(1) EC that the protection of human health is one of the objectives of Community policy on the environment (see, inter alia, Case C‑343/09 Afton Chemical  [2010] ECR I‑0000, paragraph 32, and Case C‑77/09 Gowan Comércio Internacional e Serviços  [2010] ECR I‑0000, paragraph 71). Those objectives are closely linked, in particular in connection with the fight against air pollution, the purpose of which is to limit the dangers to health connected with the deterioration of the environment. The objective of protection of health is therefore already incorporated, in principle, in the objective of protection of the environment (see, to that effect, Case C‑524/07 Commission  v Austria , paragraph 56).
123. In those circumstances, the arguments of the Republic of Austria on protection of health need not be considered separately from those on protection of the environment (see, to that effect, Case C‑524/07 Commission  v Austria , paragraph 56).
125. It is settled case-law that overriding requirements of protection of the environment can justify national measures that are liable to obstruct intra-Community trade, provided that those measures are suitable for securing the attainment of that objective and do not go beyond what is necessary for attaining it (see, to that effect, Case C‑389/96 Aher-Waggon  [1998] ECR I‑4473, paragraphs 19 and 20; Case C‑463/01 Commission  v Germany , paragraph 75; and Case C‑524/07 Commission  v Austria , paragraph 57).
126. A restrictive measure can be regarded as suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 55; Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I‑4171, paragraph 42; and Case C‑137/09 Josemans  [2010] ECR I‑0000, paragraph 70).
132. As to the Commission’s assertion that the criterion adopted raises the possibility that the goods concerned by the sectoral traffic prohibition may have been chosen arbitrarily, suffice it to state that the Commission has not put forward any arguments to support the contention that that was the case with respect to the goods listed in Paragraph 3 of the contested regulation. Since in infringement proceedings the Court must give a ruling by taking account only of the facts of the case, excluding any suppositions, this assertion must be rejected (see, inter alia, Case C‑494/01 Commission  v Ireland  [2005] ECR I‑3331, paragraph 41, and Case C‑335/07 Commission  v Finland  [2009] ECR I‑9459, paragraph 46).
138. Having regard to those factors, it must be concluded that the sectoral traffic prohibition is appropriate for attaining the objective of protection of the environment.
140. As the Court stated in Case C‑320/03 Commission  v Austria , paragraph 87, before adopting a measure so radical as a total traffic ban on a section of motorway constituting a vital route of communication between certain Member States, the Austrian authorities were under a duty to examine carefully the possibility of using measures less restrictive of freedom of movement, and discount them only if their inappropriateness to the objective pursued was clearly established.