Commission of the European Communities v Republic of Austria.
Date: 2000-09-26
41 It should be borne in mind at the outset that, in Parliament v Council, cited above, the Court, after deciding that, in order to avoid discontinuity in the programme for the harmonisation of transport taxation and in view of important considerations of legal certainty, it was necessary for all the effects of the annulled directive to be preserved provisionally until the adoption of a new directive (paragraphs 31 and 32), added that the Community legislature was under a duty to put an end within a reasonable period to the infringement it had committed (paragraph 33).
63 First, as the Advocate General rightly observed in point 22 of his Opinion, it must be recognised, as contended by the Commission, that, for the purposes of establishing the existence of discrimination indirectly based on the nationality of hauliers, the registration of vehicles constitutes, as the rules on the carriage of goods by road in the European Union stand at present, a valid criterion in so far as vehicles registered in a Member State are, as a rule, operated by economic operators of the same Member State (see, mutatis mutandis, in relation to vessels flying the national flag, the judgment in Corsica Ferries, cited above, paragraph 33). Moreover, the Austrian Government has not, for the purposes of these proceedings, challenged that correlation between the nationality of the haulier and the State of registration of the vehicles operated by him.
70 According to settled case-law of the Court, 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, Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30).
78 It need only be pointed out that that argument concerns only one aspect of the toll regime, relating to the use of a tariff which is differentiated by reference to the greater or lesser pollution and noise caused by vehicles with more than three axles and the time at which they travel, as applied to the full itinerary since the second tariff change at issue was made. However, it does not answer the Commission's complaint that the Republic of Austria has infringed the principle of non-discrimination by removing, for vehicles with more than three axles following the full itinerary, the availability of reduced tariffs which existed before the first tariff change at issue and, when making the second tariff change at issue, increased the basic tariff applicable to vehicles with more than three axles following the full itinerary. In any event, Member States may not plead administrative difficulties in order to introduce or maintain discriminatory rules (see, to that effect, Case C-45/91 Commission v Greece [1992] ECR I-2509, paragraph 21).
79 In those circumstances, it must be held that, in the case of vehicles with more than three axles carrying goods, there is a difference of treatment between, on the one hand, those following the full itinerary, of which the great majority are not registered in Austria, and, on the other, those which, being in a comparable situation, follow the partial itineraries mentioned in paragraph 73 of the present judgment, the vast majority of which are registered in Austria.
80 As is apparent from the information provided by the Commission and not challenged by the Austrian Government, vehicles with more than three axles following one of the three partial itineraries mentioned in paragraph 73 of this judgment pay, following the two increases at issue, respectively 20 ATS/km, 10.53 ATS/km and 15.48 ATS/km, which gives an average of 15.34 ATS/km. On the other hand, following those same increases, vehicles with more than three axles, travelling the full itinerary by day, pay 33.33 ATS/km if they meet the more stringent requirements concerning pollution and noise and 43.48 ATS/km in other cases and, for travel by night, 66.67 ATS/km.
81 That finding is confirmed by an examination of the legislative background to the two tariff changes at issue. The resolution of the regional Parliament of the Land of Tyrol, of 17 May 1995, which gave rise to those tariff changes, emphasised the need to protect domestic hauliers (heimischen Frächter) from the drastic charges deriving from those tariff changes.
82 Second, it is necessary to verify whether, as also contended by the Commission, there is unequal treatment as between vehicles with more than three axles using the full itinerary and vehicles with up to three axles following the same itinerary.
83 In that connection, it must be observed at the outset that, contrary to the submission put forward by the Austrian Government, buses cannot, for the purposes of identifying any discrimination within the meaning of the Directive, be taken into account as vehicles with up to three axles, nor can any other vehicles which do not meet the definition of vehicles contained in the fourth indent of Article 2 of the Directive, namely motor vehicles or articulated vehicle combinations intended exclusively for the carriage of goods by road and with a maximum permissible gross laden weight of not less than 12 tonnes.
84 Similarly, the Austrian Government's argument that any comparison between vehicles with more than three axles and those with up to three axles would be inappropriate since the former, by reason of their greater weight and more powerful engines, are more detrimental to the environment, cannot be accepted.
85 It need merely be pointed out in that respect, first, that the Austrian Government has not denied, as the Commission states, that the wear and tear suffered by the infrastructure as a result of a given vehicle depends not only on the number of axles but also on other factors such as the total weight in relation to the number of axles, the weight per axle and the suspension system of the driving axle. Second, as also pointed out by the Commission, there are no grounds for asserting that vehicles with more than three axles are significantly more detrimental to the environment than those with up to three axles, whereas, as the Austrian Government concedes, more than 90% of vehicles with more than three axles meet the requirements laid down for eligibility for the tariff applicable to low-noise low-pollution lorries.
86 Accordingly, it is necessary to verify whether, within the category of vehicles with up to three axles using the full itinerary, which, in so far as they are not affected by the contested increases, form part of the favoured group, a majority of vehicles are registered in Austria. Should that be the case, there would be unequal treatment to the disadvantage of vehicles with more than three axles which are affected by the two tariff changes at issue and are for the most part registered in other Member States.
87 As the Advocate General observed in point 42 of his Opinion, on the basis of data in the 1995 technical study, relied on by the Commission in support of its first charge, it may be presumed that, in 1994, about one quarter of the vehicles with up to three axles which followed the full itinerary were registered in Austria. No discrimination as between the two categories of vehicle in question on grounds of the nationality of the hauliers can be identified on the basis of those data since a majority of the vehicles not registered in Austria and, consequently, a majority of non-Austrian hauliers benefited from the favourable tariffs applicable to vehicles with up to three axles.
88 In view of all the foregoing considerations, it must be held that the effect of the two tariff changes at issue is to favour Austrian hauliers by comparison with hauliers who are nationals of other Member States in so far as those tariff changes affect vehicles with more than three axles which follow the full itinerary of the Brenner motorway and which, for the most part, are not registered in Austria, in contrast to vehicles with more than three axles carrying out similar transport operations on certain partial itineraries, the great majority of which are registered in Austria.
109 In order to avoid any form of distortion of competition as between transport undertakings in the Member States, 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.