Commission of the European Communities v Republic of Austria.
Date: 2005-11-15
34. In those circumstances, the Commission, which has the responsibility under Article 211 EC for ensuring that Member States comply with their obligations under Community law, cannot be blamed for fixing deadlines which took account of the specific circumstances of the case, and particularly its urgency (see, to that effect, Case 293/85 Commission  v Belgium  [1988] ECR 305, paragraph 14; Case C‑328/96 Commission  v Austria  [1999] ECR I-7479, paragraphs 34 and 51, and Case C-1/00 Commission  v France  [2001] ECR I-9989, paragraphs 64 and 65).
35. As for the procedure under Regulation No 2679/98, which is designed to bring as speedy an end as possible to obstacles to the free movement of goods between Member States, as defined in Article 1 of that regulation, the Court finds, as the Advocate General has pointed out in paragraph 35 of his Opinion, that engaging such a procedure is in no way a precondition which the Commission must satisfy before commencing the pre-litigation procedure under Article 226 EC, and that that regulation does not in any way restrict the Commission’s powers under Article 226 EC (see, to that effect, Case C‑394/02 Commission  v Greece  [2005] ECR I-0000, paragraphs 27 and 28, and the case-law cited therein).
63. It should be stated at the outset that the free movement of goods is one of the fundamental principles of the Treaty (Case C-265/95 Commission  v France  [1997] ECR I-6959, paragraph 24).
65. Such freedom of movement entails the existence of a general principle of free transit of goods within the Community (see Case 266/81 SIOT  [1983] ECR 731, paragraph 16).
66. Clearly, by prohibiting heavy vehicles of more than 7.5 tonnes carrying certain categories of goods from travelling along a road section of paramount importance, constituting one of the main routes of land communication between southern Germany and northern Italy, the contested regulation obstructs the free movement of goods and, in particular, their free transit.
67. The fact that, as the Republic of Austria argues, there are alternative routes or other means of transport capable of allowing the goods in question to be transported does not negate the existence of an obstacle. It has been established in the case-law since the judgment of 11 July 1974 in Case 8/74 Dassonville  [1974] ECR 837, paragraph 5, that Articles 28 EC and 29 EC, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intra-Community trade (see Case C‑112/00 Schmidberger  [2003] ECR I-5659, paragraph 56).
68. In this case, it cannot be denied that the prohibition on traffic laid down by the contested regulation, by forcing the undertakings concerned, at very short notice moreover, to seek viable alternative solutions for the transport of goods covered by that regulation, is capable of limiting trading opportunities between northern Europe and the north of Italy.
69. The contested regulation must therefore be regarded as constituting a measure having equivalent effect to quantitative restrictions, which in principle are incompatible with the Community law obligations under Articles 28 EC and 29 EC, unless that measure can be objectively justified.
– Possible justification of the obstacle
70. It is settled case-law that national measures capable of obstructing intra-Community trade may be justified by overriding requirements relating to protection of the environment provided that the measures in question are proportionate to the aim pursued (see, in particular, Case C-463/01 Commission  v Germany  [2004] ECR I-11705, paragraph 75, and Case C-309/02 Radberger Getränkegesellschaft and S. Spitz  [2004] ECR I-11763, paragraph 75).
71. In this case, it is undisputed that the contested regulation was adopted in order to ensure the quality of ambient air in the zone concerned and is therefore justified on environmental protection grounds.
72. In the first place, protection of the environment constitutes one of the essential objectives of the Community (Case 240/83 ADBHU  [1985] ECR 531, paragraph 13; Case 302/86 Commission  v Denmark  [1988] ECR 4607, paragraph 8; Case C‑213/96 Outokumpu  [1998] ECR I-1777, paragraph 32; and Case C‑176/03 Commission  v Council  [2005] ECR I-0000, paragraph 41). With that objective in mind, Article 2 EC states that the Community shall have as its task to promote a ‘high level of protection and improvement of the quality of the environment’, and, for that purpose, Article 3(1)(l) EC provides for the establishment of a ‘policy in the sphere of the environment’.
73. Furthermore, in the words of Article 6 EC ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Community policies and activities’, a provision which emphasises the fundamental nature of that objective and its extension across the range of those policies and activities ( Commission  v Council , cited above, paragraph 42).
81. Article 8(3) of Directive 96/62 requires more particularly that, where limit values are exceeded, the Member State concerned must prepare or implement a plan or programme, which must contain the information listed in Annex IV to that directive, concerning such matters as the place where the values were exceeded, the principal sources of emissions responsible for the pollution and measures existing or envisaged. By definition, such a plan or programme must contain a series of appropriate and coherent measures designed to reduce the pollution level in the specific circumstances of the zone concerned.
87. Without the need for the Court itself to give a ruling on the existence of alternative means, by rail or road, of transporting the goods covered by the contested regulation under economically acceptable conditions, or to determine whether other measures, combined or not, could have been adopted in order to attain the objective of reducing emissions of pollutants in the zone concerned, it suffices to say in this respect that, 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 inadequacy, in relation to the objective pursued, was clearly established.
90. Moreover, a transition period of only two months between the date on which the contested regulation was adopted and the date fixed by the Austrian authorities for implementation of the sectoral traffic ban was clearly insufficient reasonably to allow the operators concerned to adapt to the new circumstances (see, to that effect, the judgments referred to above in Commission  v Germany , paragraphs 79 and 80, and Radlberger Getränkegesellschaft and S. Spitz , paragraphs 80 and 81).