Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs- AG (Asfinag).
Date: 2004-02-05
22. It ought to be borne in mind that the Court has consistently held (Case 8/81  Becker  [1982] ECR 53, paragraphs 23 to 25, and Case C-188/89  Foster and Others  [1990] ECR I-3313, paragraph 16) that where the Community authorities have, by means of a directive, placed Member States under an obligation to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law. Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.  Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State.
23. The Court has further held (Case 152/84  Marshall  [1986] ECR 723, paragraph 49, and  Foster and Others , cited above, paragraph 17) that where a person is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority.  In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law.
24. A body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon ( Foster and Others , paragraph 20, and Case C-343/98  Collino and Chiappero  [2000] ECR I-6659, paragraph 23).
25. It is clear from the information contained in the order for reference that the Austrian State is the sole shareholder in Asfinag.  It has the right to check all measures taken by that company and its subsidiaries and at any time to demand information about their activities.  It is entitled to impose objectives with regard to the organisation of traffic, safety and construction.  Every year Asfinag is required to draw up a plan for the maintenance of the motorways and expressways and to submit to the State the calculation of the costs involved.  Furthermore, every year within the periods necessary for the drawing-up of the State ' s budget, it must present to the State calculations with the estimated costs of planning, constructing, maintaining and managing motorways and national expressways.
26. In addition, the order for reference makes it clear that Asfinag is not entitled of its own authority to fix the amount of the tolls to be levied.  That amount is fixed by law.  Paragraphs 4 and 8 of the law known as the Asfinag Law (BGBl. 1982/591) provide that the amount of the payment must be fixed by the Bundesminister für Wirtschaftliche Angelegenheiten (Federal Minister for Economic Affairs) in concert with the Bundesminister für Finanzen (Federal Minister for Finance), according to certain criteria including, inter alia, the type of vehicle.
27. Those facts clearly show that Asfinag is a body to which, pursuant to an act adopted by the public authorities, the performance of a public-interest service (namely: the constructing, planning, operating, maintaining and financing of motorways and expressways in addition to the levying of tolls and user charges), has been entrusted, under the supervision of those public authorities, and which for that purpose possesses special powers beyond those resulting from the normal rules applicable in relations between individuals.
34. As the Court has consistently held, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or wh ere it has failed to implement the directive correctly (see, in particular, Joined Cases C-6/90 and C-9/90  Francovich and Others  [1991] ECR I-5357, paragraph 11, and Case C-62/00  Marks & Spencer  [2002] ECR I-6325, paragraph 25).
39. The Austrian Government ' s argument that, in the absence of a mathematically certain method of calculating tolls or user charges, Articles 7(b) of Directive 93/89 and 7(4) of Directive 1999/62 may not be relied upon cannot be accepted.  According to the Court ' s settled case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular,  Commission  v  Austria , paragraph 70).  That criterion is sufficient to establish whether the prohibition of discrimination laid down in those provisions has been infringed in the case in the main proceedings, by making a comparison of the tolls charged for the various journeys under consideration ( Commission  v  Austria , paragraphs 79 to 88, 112 and 115).
51. It ought to be borne in mind that it is in order to avoid any form of distortion of competition as between transport undertakings in the Member States that Article 7(b) of the Directive prohibits, in the application of user charges and tolls, not only discrimination based directly or indirectly on the nationality of hauliers but also that based on the origin or destination of the vehicle ( Commission  v  Austria , paragraph 109).
60. The purpose of preserving the effects of an annulled legal act is, however, not to allow a legal vacuum to subsist until the annulled act has been replaced by a new act.  That objective can be attained only if the annulled legal act continues to produce effects until the new act does so.  Since Directive 1999/62 had no effect until the date it entered into force, the judgment in  Parliament  v  Council  must be understood to mean that the effects of Directive 83/89 were to be preserved until the entry into force of Directive 1999/62, that is to say, 20 July 1999 in accordance with its Article 13.  Directive 93/89 continued therefore to produce effects until midnight 19 July 1999.
66. It follows from the application of the second paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC and from Directive 1999/62 itself that, during the period prescribed by that Directive for its transposition into national law, the Member State to which it is addressed must refrain from taking any measures liable seriously to compromise the result prescribed by that directive (Case C-129/96  Inter-Environnement Wallonie  [1997] ECR I-7411, paragraph 45).
67. The fact remains that in proceedings brought by individuals relying on a directive ' s direct effect, national courts are bound to refrain from applying pre-existing national rules contrary to the directive only after the period prescribed for its transposition has expired (see, to that effect, Case C-156/91  Hansa Fleisch Ernst Mundt  [1992] ECR I-5567, paragraph 20).
68. Since the purpose of such a period is, in particular, to give Member States the necessary time to adopt transposition measures, they cannot be faulted for not having transposed the directive into their internal legal order before expiry of that period ( Inter-Environnement Wallonie , paragraph 43).