According to the Advocate General, the raising of the tolls for vehicles with more than three axles for the whole length of the Brenner, has constituted indirect discrimination on the basis of the nationality, origin or destination of the transport and has not linked tolls to the costs of the infrastructure network.
The Brenner motorway (the A13) crosses the Tyrol from the city of Innsbruck to the Italian border, covering 34.5 kilometres. It is part of a motorway complex of significant importance within the Community, linking Italy to Germany and to the rest of northern Europe. It forms part of Austrian federal property and its development has been entrusted to a State-controlled company (ASFINAG) since 1983.
The toll system in operation is "semi-open" in type, which means that it is possible to distinguish between the whole route, a part section and a short section, and on that basis three kinds of toll are levied.
Between 1995 and 1996, the rates for the tolls on the whole route were modified for vehicles with more than three axles and a total fully-laden weight of not less than 12 tonnes.
The Commission was informed of the tariff change by the Austrian Government, initiated infringement proceedings and then requested the Court to declare that, by increasing tolls for the whole route (indirect discrimination on the grounds of the nationality, origin or destination of the vehicle), and by failing to correlate the costs of the construction, operation and development of the Brenner motorway to the tolls, the Austrian Republic had failed to fulfil its obligations.
Tolls and user charges for motorways (based on the distance covered and the length of use of the motorway respectively) fall within the ambit of Community policies on transport (on account of their impact on Community traffic) and on tax harmonisation (on account of their parafiscal nature). According to Directive 93/89/EEC, tolls must be applied without any direct or indirect discrimination on the grounds of the nationality of the haulier or the origin or destination of the vehicle.
In 1995, the Court annulled the Directive for breach of essential procedural requirements (the Parliament had not been consulted as a legislative body a second time, as provided for by Articles 75 and 99 of the EEC Treaty), but maintained it in force until the adoption of a new Directive by the Council. Directive 1999/62/EC replaced the annulled legislation.
The Advocate General observes, first of all, that according to the case-law of the Court, the Commission may bring an action for failure to fulfil obligations on the basis of an annulled directive, the effects of which a judgment of the Court has preserved in force, with the objective of ensuring that not only the legislation in question, but also the judgment of the Court, should actually produce effects.
The Commission has claimed that, by its manipulation of the tolls, the Austrian Government has introduced discrimination on the basis of the nationality of the haulier, to the detriment of vehicles having more than three axles covering the whole of the Brenner motorway, since the majority of those are not registered in Austria. The discrimination is therefore indirect: the Austrian law is not based on the nationality of the haulier, but on other criteria, which in the end achieve the same result.
As a preliminary point, it must be acknowledged that the hauliers of a given Member State do in fact use vehicles registered in that State, which gives rise to a sort of assumption that the haulier's nationality is the same as the place of registration.
On 1 February 1996, tolls for vehicles with up to three axles over the whole route and for those with more than three axles not completing the whole route were not increased.
Only vehicles with more than three axles covering the whole Brenner motorway had to pay the increases. Of all vehicles with more than three axles making the complete journey, 84% belonged to non-Austrian hauliers.
Consequently, the Commission has taken into consideration heavy goods vehicles, intended for industrial and commercial use, and compared those with more than three axles covering the entire route (foreigners) with those covering part sections only (Austrian).
The cost per kilometre over the whole route is more than twice as much as the cost per kilometre over parts of the route: the Advocate General therefore finds that there is indirect discrimination against foreign vehicles.
The Commission observes that in the resolution by which it introduced the tariff changes, the regional parliament of the Tyrol had clearly adopted a protectionist attitude, particularly by making express reference to protecting domestic hauliers from the drastic rises in tolls.
The Directive also prohibits any discrimination based on the origin or destination of the vehicle, in order to avoid preferential treatment for localities, areas or whole Member States concerned by particular flows of traffic or financial requirements and in order to avoid distortion of competition between haulage undertakings in the Member States.
In the interest of thoroughness, it is pointed out that Austria benefits from differentiated Community rules (Regulation (EC) No 3298/94) concerning international traffic in transit.
According to the Commission, since the increases in the tolls affect only those vehicles which have more than three axles covering the whole route, which are primarily vehicles in transit, there exists indirect discrimination of treatment based on the origin or destination of the haulier.
Vehicles with more than three axles in transit covering the whole route constituted more than 86.8%.
According to the Advocate General since vehicles with more than three axles which were covering parts of the route and which were not in transit, profited from a better rating system than vehicles with more than three axles covering the whole route which were in transit, there exists indirect discrimination on the basis of the destination of the vehicle.
The Commission considers that the correlation between tolls and infrastructure costs must be applied to each individual stretch of motorway (and not, as Austria claim, to the whole of the motorway network operating within the same financing system).
According to the Advocate General, the Brenner motorway consists of a series of motorway bridges, tunnels and mountain passes in respect of which the amount of the relevant tolls must take into account the costs of constructing, operating and developing those works. The correlation between tolls and costs must therefore be made by reference to the length of the Brenner motorway and not to the entire Austrian motorway system.
At the same time, infrastructure costs place a ceiling on toll increases, according to the principle inherent in the Directive of reasonable and moderate motorway tolls.
A comparison of the estimated amount of costs with the estimated revenue from tolls indicates that the tolls came to a sum 153% greater than the costs and proves that there is no correlation as required by the Directive.
There will now be a subsequent undetermined period of deliberation by the judges of the Court of Justice (in which the Advocate General takes no part) before a judgment is delivered.
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For further information, please contact Fionnuala Connolly, tel: (00352) 4303-3355, fax: (00353) 4303-2731