Republic of Austria v Federal Republic of Germany.
Date: 2019-06-18
39


In that regard, first, it must be observed that, in accordance with settled case-law, Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific rules on non-discrimination (judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 25 and the case-law cited).
40


The principle of non-discrimination on the grounds of nationality has been given effect, in particular, in the area of the free movement of goods, in Article 34 TFEU, read together with Article 36 TFEU (see, to that effect, judgment of 8 June 2017, Medisanus, C‑296/15, EU:C:2017:431, paragraph 65), in the area of free movement of workers, in Article 45 TFEU (see, to that effect, judgment of 22 June 2017, Bechtel, C‑20/16, EU:C:2017:488, paragraph 32 and the case-law cited) and, in the area of freedom to provide services, in Articles 56 TFEU and 62 TFEU (see, to that effect, judgment of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 32 and the case-law cited).
41


It follows that, in the present case, the national measures at issue can be examined having regard to the first paragraph of Article 18 TFEU only to the extent that they apply to situations which do not fall within the scope of such specific rules on non-discrimination laid down by the FEU Treaty.
42


Second, it must be recalled that the general principle of non-discrimination on the grounds of nationality, as enshrined in the first paragraph of Article 18 TFEU, prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, judgment of 13 April 2010, Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 40 and the case-law cited).
54


First, as regards the argument that it is compatible with EU law that the relief from motor vehicle tax benefits solely owners of vehicles registered in Germany, the Court has indeed held that, since the taxation of motor vehicles has not been harmonised, the Member States are free to exercise their powers of taxation in that area, registration being the natural corollary of the exercise of those powers of taxation (see, to that effect, judgment of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraphs 40 and 41). That explains why the motor vehicle tax affects only the owners of vehicles registered in Germany, with the consequence that only they can qualify for the tax relief concerned.
56


It must be recalled that, according to settled case-law, the Member States must exercise their competence in the area of direct taxation in a way that is compatible with EU law and, in particular, with the fundamental freedoms guaranteed by the FEU Treaty (judgments of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraph 40, and of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 44 and the case-law cited).
73


Third and last, it must be recalled that, according to settled case-law, indirect discrimination on grounds of nationality can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate objective of the national provisions (judgment of 4 October 2012, Commission v Austria, C‑75/11, EU:C:2012:605, paragraph 52 and the case-law cited).
75


With respect to, first, environmental considerations, while, in accordance with the Court’s case-law, the protection of the environment constitutes a legitimate objective for the purposes of justifying a difference in treatment on ground of nationality (see, by analogy, with respect to the justification of restrictions on fundamental freedoms, judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 36 and the case-law cited), the Federal Republic of Germany fails however to establish in what way the introduction of an infrastructure use charge that affects, de facto, only the owners and drivers of vehicles registered in Member States other than Germany would be appropriate to the achievement of that objective.
82


The judgment of 19 March 2002, Commission v Italy (C‑224/00, EU:C:2002:185, paragraphs 16 to 19), confirms the existence of the difference in treatment that the Federal Republic of Germany has established.
83


The Republic of Austria recognises that the objective of ensuring payment of the infrastructure use charge payable by the owners and drivers of vehicles registered in Member States other than Germany could possibly justify the difference in treatment at issue, with respect to the powers to intervene and the imposition of fines. Such an objective could not, however, justify such a difference with respect to the recovery a posteriori of the infrastructure use charge, under Article 12 of the InfrAG. In relation to the latter, the Republic of Austria again refers to the judgment of 19 March 2002, Commission v Italy (C‑224/00, EU:C:2002:185, paragraph 26).
102


In that regard, it must be recalled that the Court has previously held that the absence of any treaty instruments to secure the enforcement of a court decision in a Member State other than that in which it was delivered objectively justifies a difference in treatment between resident and non-resident offenders and that the obligation to pay a sum of money by way of security, imposed solely on non-resident offenders, is appropriate to prevent them from avoiding an effective penalty simply by declaring that they do not consent to the immediate collection of the fine (judgment of 19 March 2002, Commission v Italy, C‑224/00, EU:C:2002:185, paragraph 21).
117


The Federal Republic of Germany states that measures whose only effect is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State are not covered by Article 56 TFEU (judgment of 8 September 2005, Mobistar andBelgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31). In that regard, the Federal Republic of Germany states that service providers and service recipients from other Member States do not suffer, because of the introduction of the infrastructure use charge and the simultaneous relief from motor vehicle tax, any indirect discrimination in comparison with German providers and recipients of the same services.
119


It must be recalled that the free movement of goods between Member States is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect (judgment of 27 April 2017, Noria Distribution, C‑672/15, EU:C:2017:310, paragraph 17 and the case-law cited).
120


In accordance with settled case-law, the prohibition of measures having equivalent effect to quantitative restrictions on imports laid down in Article 34 TFEU covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Union trade (judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 26 and the case-law cited).
121


Further, a measure, even if it has neither the object nor the effect of treating goods coming from other Member States less favourably, also falls within the scope of the concept of a ‘measure having equivalent effect to quantitative restrictions’, within the meaning of Article 34 TFEU, if it hinders access to the market of a Member State of products originating in other Member States (judgment of 3 April 2014, Commission v Spain, C‑428/12, not published, EU:C:2014:218, paragraph 29 and the case-law cited).
122


Last, it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified on one of the grounds of public interest laid down in Article 36 TFEU or by imperative requirements. In either case, the provision of national law must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (judgments of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 53 and the case-law cited, and of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 110).
135


It must be recalled that, in accordance with the Court’s case-law, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (judgment of 28 April 1998, Kohll, C‑158/96, EU:C:1998:171, paragraph 33 and the case-law cited).
136


National measures which prohibit, impede or render less attractive the exercise of the freedom to provide services are restrictions on that freedom (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 46 and the case-law cited).
137


On the other hand, measures the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State do not fall within the scope of Article 56 TFEU (judgment of 8 September 2005, Mobistar and Belgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31 and the case-law cited).
138


It must also be recalled that, in accordance with settled case-law, the freedom to provide services includes not only the active aspect of the freedom to provide services, where the service provider travels to the recipient of the services, but also the passive aspect of the freedom to provide services, that is, the freedom of the recipients of services to travel to another Member State where the service provider is located in order to receive the services there (see, to that effect, judgments of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 15, and of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 36 and the case-law cited).
139


Last, it follows from the Court’s case-law that a restriction on the freedom to provide services is warranted only if it pursues a legitimate objective compatible with the FEU Treaty and is justified by overriding reasons in the public interest; if that is the case, it must be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain that objective (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 52 and the case-law cited).
162


It is therefore clear that, by offsetting in its entirety the new tax burden constituted by the infrastructure use charge, payable by all carriers, by means of a relief from motor vehicle tax in an amount at least equivalent to the charge paid, a relief to the benefit of the German carriers from which the foreign carriers are excluded, the effect of the national measures at issue is to alter, unfavourably, the situation of the foreign carriers in relation to that of the German carriers (see, to that effect, judgment of 19 May 1992, Commission v Germany, C‑195/90, EU:C:1992:219, paragraph 23).