The toll system on the Brenner motorway results in indirect discrimination based on the nationality of the haulier and on the origin or destination of the vehicle and breaches the requirement of a link between the toll rates and the costs of the infrastructure network concerned
The Brenner motorway (A13) goes from the city of Innsbruck (Tyrol) to the Austrian-Italian frontier. Since 1983, the financing operations for construction and development of that motorway have been carried out by a State-controlled company (ASFINAG).
As from 1 July 1995, the tolls for vehicles with more than three axles using what is known as a "full itinerary" (mainly the stretch between the Innsbruck East or the Innsbruck West toll station and the Italian frontier) were increased. A second increase affecting the same vehicles and the same itinerary was applied as from 1 February 1996.
Under Community law (Directive 93/89/EEC), tolls may not discriminate, directly or indirectly, on the grounds of the nationality of the haulier or of origin or destination of the vehicle. In addition, toll rates must be related to the costs of the infrastructure network concerned.
In 1995 the Court annulled the Directive on the ground that it had been adopted without proper consultation of the European Parliament, but preserved its effects pending the adoption of a new directive. A new directive (Directive 1999/62/EC) was finally adopted on 17 June 1999.
The Commission brought an action in the Court of Justice for a declaration that, by making increases which, in the Commission's view, for the most part affect vehicles not registered in Austria, Austria had failed to comply with Community law. The Commission also criticised Austria on the ground that the increases were not linked to the costs of construction and operation of the Brenner motorway.
The Court found that those increases do involve indirect discrimination on grounds of the nationality of the haulier in that in most cases they affect vehicles registered in other Member States. The criterion of registration constitutes, in the Court's view, a valid basis for concluding that such discrimination exists: vehicles registered in a Member State are generally used by economic operators of that State. However, it is essentially those vehicles which use the full itinerary and are affected by the tariff increases: 84% of vehicles with more than three axles which follow that itinerary are not registered in Austria. Conversely, vehicles with more than three axles engaged in similar transport operations on certain "partial itineraries", the majority of which are Austrian vehicles, pay, after those two increases, a much more favourable rate per kilometre.
The Court, in contrast to the Austrian Government, considered that neither environmental concerns nor those linked to national transport policy can be invoked by the national authorities, under Community law, in order to justify discriminatory toll rates.
The Court also considered that those increases involve indirect discrimination based on the destination or origin of the vehicle. A great majority of vehicles with more than three axles following the full itinerary are in transit through Austrian territory, in contrast to vehicles with more than three axles using comparable partial itineraries, which are not engaged in transit traffic.
The Court took the view, finally, that the requirement of a link between toll rates and the costs of construction, operation and development of the road concerned had not been observed. The rates charged in fact exceed those construction costs by far.
In those circumstances, the Court held that, by making those increases, Austria had failed to comply with Community law.