Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT

26 September 2000 (1)

(Failure of a Member State to fulfil obligations - Directive 93/89/EEC - Tolls - Brenner motorway - Prohibition of discrimination - Obligation to set toll rates by reference to the costs of the infrastructure network concerned)

In Case C-205/98,

Commission of the European Communities, represented by L. Pignataro, of its Legal Service, and A. Buschmann, a national expert on secondment to that service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Republic of Austria, represented by H. Dossi, Ministerialrat in the Legal Service of the Chancellery, acting as Agent, with an address for service in Luxembourg at the Austrian Embassy, 3 Rue des Bains,

defendant,

APPLICATION for a declaration that, by raising from 1 July 1995 and from 1 February 1996 the tolls for the whole Brenner motorway, a transit route through Austria used predominantly by goods vehicles of over 12 tonnes from other Member States, and by not imposing the said tolls only to cover the costs of constructing, operating and developing the Brenner motorway, the Republic of Austria has failed to fulfil its obligations under Article 7(b) and Article 7(h) of Council Directive 93/89/EEC of 25 October 1993 on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures (OJ 1993 L 279, p. 32),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida (Rapporteur), L. Sevón, R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet, P. Jann, M. Wathelet, V. Skouris and F. Macken, Judges,

Advocate General: A. Saggio,

Registrar: H.A. Rühl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 1 December 1999, at which the Commission was represented by L. Pignataro and M. Niejahr, of its Legal Service, acting as Agent, and the Republic of Austria by H. Dossi,

after hearing the Opinion of the Advocate General at the sitting on 24 February 2000,

gives the following

Judgment

1. By application lodged at the Court Registry on 29 May 1998 the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by raising from 1 July 1995 and from 1 February 1996 the tolls for the whole Brenner motorway, a transit route throughAustria used predominantly by goods vehicles of over 12 tonnes from other Member States, and by not imposing the said tolls only to cover the costs of constructing, operating and developing the Brenner motorway, the Republic of Austria has failed to fulfil its obligations under Article 7(b) and Article 7(h) of Council Directive 93/89/EEC of 25 October 1993 on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures (OJ 1993 L 279, p. 32, hereinafter 'the Directive).

   The Directive

2. Under Article 2 of the Directive, 'toll means 'payment of a specified amount for a vehicle travelling the distance between two points on the infrastructure referred to in Article 7(d), based on the distance travelled and on the category of the vehicle (second indent) and 'vehicle means 'a motor vehicle or articulated vehicle combination intended exclusively for the carriage of goods by road and with a maximum permissible gross laden weight of not less than 12 tonnes (fourth indent).

3. According to Article 7 of the Directive:

   'Member States may maintain or introduce tolls and/or introduce user charges in accordance with the following conditions:

   (a) Tolls and user charges may not both be imposed at the same time for the use of a single road section.

   However, Member States may also impose tolls on networks where user charges are made, for the use of bridges, tunnels and mountain passes;

   (b) Without prejudice to Article 8(2)(e) and Article 9, tolls and user charges may not discriminate, directly or indirectly, on the grounds of the nationality of the haulier or of origin or destination of the vehicle;

   ...

   (d) Tolls and user charges shall be imposed only on users of motorways or other multilane roads with characteristics similar to motorways, bridges, tunnels and mountain passes.

   ...

   (h) Toll rates shall be related to the costs of constructing, operating and developing the infrastructure network concerned.

4. Under Article 13 of the Directive, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 1 January 1995. By virtue of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21 and OJ 1995 L 1, p. 1), that time-limit for transposition also applies to the Republic of Austria.

5. By its judgment in Case C-21/94 Parliament v Council [1995] ECR I-1827, 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.

6. On 17 June 1999 the European Parliament and the Council adopted Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42) which, as indicated in the fourth recital in its preamble, replaces the annulled directive.

   The Brenner motorway

7. The Brenner motorway (A 13) links Innsbruck in Austria, on the frontier with Italy, to the Brenner pass. It is one of the transalpine road sections which the Austrian federal legislation has designated as being subject to tolls. Until 1997, the company Alpen Straßen AG was entrusted with the operation, maintenance and development of the Brenner motorway, which is owned by the federal State.

8. Since 1983, the financing operations for construction and development of the Brenner motorway and of the other transalpine sections of motorways and express highways in Austria have been carried out on a centralised basis by the finance company Asfinag, which is controlled by the federal State.

9. Under the rules in force until 1997, income from toll charges constituted income of the federal State but was appropriated by law to the maintenance, operation, management and financing of the relevant infrastructure. Alpen Straßen made direct use of the funds obtained from toll charges to cover the expenses of operating, maintaining and improving the infrastructures in question. Any unused resources were paid to Asfinag, which used them to defray loan costs in respect of all the road projects financed by it. Since the toll income paid to Asfinag covered only part of the annual interest charges borne by it, the difference was paid by the Austrian Government out of the State budget.

10. The Infrastrukturfinanzierungsgesetz (Law on the financing of infrastructures) of 11 September 1997 transferred to Asfinag, retroactively from 1 January 1997, responsibility for the construction, planning, operation, maintenance and financingof Austrian motorways and express highways, and authorised it to collect tolls and user charges in its own name and right in order to cover its costs.

11. The Brenner motorway toll system comprises a principal toll station, at Schönberg, about 10 km to the south of Innsbruck, which is the only one located directly on the motorway, and secondary stations located at different accesses to and exits from the motorway, including those at Stubaital, Matrei/Steinach, Nößlach and Brennersee.

12. For toll purposes, a distinction is drawn between three types of itinerary, namely:

    - 'full itineraries ('Gesamtstrecke), corresponding principally to the distance of approximately 34.5 km between either the Innsbruck-East or the Innsbruck-West toll station and the Brenner frontier station. The 19 km section between the Schönberg and Matrei/Steinach toll stations is also regarded as a full itinerary;

    - 'partial itineraries ('Teilstrecken): the sections from Innsbruck to Schönberg (10 km) and from Matrei/Steinach to the Brenner frontier station (15.5 km) and the various parts of those sections such as, for example, from Innsbruck-East to Patsch/Igls (7 km), from Innsbruck-East to Stubaital (10 km) and from Matrei/Steinach to Nößlach (7.4 km);

    - 'short itineraries ('Kurzstrecke), represented by the last section of 1.5 km between Brennersee and the Brenner frontier station.

13. In the case of full itineraries, the toll is collected at the main station at Schönberg. In the case of partial and short itineraries, the toll is collected at the secondary toll stations.

14. As from 1 July 1995, the tolls for vehicles with more than three axles were changed. The main changes to the tariff derive from abolition of the special regime for low-noise vehicles with more than three axles and the withdrawal of reductions, based on the use of multiple-trip cards, for vehicles with more than three axles.

15. In the case of full itineraries, the reduced tariff of ATS 750 previously available to low-noise vehicles with more than three axles was abolished, so that they must pay the full tariff of ATS 1 000, that is to say 28.99 ATS/km. Reductions based on the purchase of a points card, enabling the cost of the journey to be reduced to ATS 600, that is to say 17.39 ATS/km, or a multiple-use card, reserved for low-noise vehicles, enabling the price of the journey to be reduced to ATS 500, that is to say 14.49 ATS/km, are likewise no longer available.

16. In the case of partial itineraries, the journey cost was, before the first tariff amendment, ATS 300, that is to say 30 ATS/km for the section from Innsbruck toSchönberg and 19.35 ATS/km for the section from Matrei/Steinach to the Brenner frontier post. If a points card was purchased, that price was reduced to ATS 200, that is to say 20 ATS/km for the section from Innsbruck to Schönberg and 12.09 ATS/km for the section from Matrei/Steinach to the Brenner frontier post. The rate of ATS 300 was maintained after 1 July 1995, but the points card was replaced by a prepaid card allowing the journey from Innsbruck to Schönberg to be made at the unchanged reduced rate of ATS 200, and that from Matrei/Steinach to the Brenner frontier post at the reduced rate of ATS 240, that is to say 15 ATS/km, representing an increase.

17. For short itineraries, the charge of ATS 100, that is to say 66.67 ATS/km, which was reduced to ATS 80, that is to say 53.33 ATS/km, if a points card was purchased, has also remained unchanged. The prepaid card, which replaced the points card, made available the same reduced rate as before.

18. The tolls were changed again, for vehicles with more than three axles, with effect from 1 February 1996.

19. In the case of full itineraries, the journey price was raised to ATS 1 150, that is say 33.33 ATS/km, for low-noise low-pollution lorries, and to ATS 1 500, that is to say 43.48 ATS/km, for other vehicles with more than three axles. In the case of journeys by night, the price has been increased to ATS 2 300, that is to say 66.67 ATS/km, for all vehicles with more than three axles. The reduced rates were not reintroduced and the purchase of a prepaid card has no effect on the price of the journey.

20. For partial itineraries, the journey price of ATS 300 was not increased when the second tariff change took place. The reduced rates available when a prepaid card is purchased, of ATS 200 and ATS 240 respectively, according to the journey, were likewise not increased. No special rules were adopted for night traffic or for low-noise low-pollution vehicles.

21. In the case of short itineraries, neither the full rate (ATS 100) nor the reduced rate when a prepaid card is purchased (ATS 80) was increased.

22. It should be noted that for journeys from Innsbruck to Matrei/Steinach (19 km) and from Schönberg to Matrei/Steinach (9 km), which are regarded in principle as full itineraries, a special concession, known as the 'half-rate, applies to lorries with more than three axles making round trips. Under that concession, which already applied before 1 July 1995, a return ticket can be obtained free of charge on the return journey from Matrei/Steinach to Innsbruck through the main toll station at Schönberg, so that the round trip is completed for the price of the outward journey (namely, ATS 1 150 or 1 500 instead of ATS 2 300 or ATS 3 000). If a round trip is paid for using a prepaid card, the Schönberg toll station issues, at the time of the return journey, a discount voucher for ATS 1 100 against the price of the whole journey for noisy high-pollution vehicles and a discount voucher of ATS 750 againstthe whole-journey price for low-noise low-pollution vehicles. Under that system, the round trip costs only ATS 400 for all vehicles with more than three axles, that is to say 10.53 ATS/km for the 38 km Innsbruck-Matrei/Steinach-Innsbruck round trip and 22.22 ATS/km for the 18 km Schönberg-Matrei/Steinach-Schönberg round trip.

23. Finally, it should be noted that heavy goods vehicles with a maximum permissible gross laden weight of 7.5 tonnes or more cannot use the non-paying road from Brenner, which runs alongside the motorway.

    The pre-contentious procedure

24. By letter of 31 May 1995 the Austrian Government informed the Commission that it was going to change the toll system for the Brenner motorway as from 1 July 1995.

25. On 9 June 1995 the Commission asked the Austrian Government to send it more details of the new rules and to give its views on their compatibility with the Directive.

26. The Austrian authorities replied on 27 June 1995.

27. On 4 August 1995 the Commission asked them to provide a statement of annual income and expenses for the Brenner motorway over the last ten years and a forecast for the forthcoming two or three years in order to determine whether the considerable increase in toll rates as from 1 July 1995 could be justified by an increase in expenditure.

28. The Austrian Government responded to that request on 15 January 1996. By letter of the same date, it informed the Commission of its decision, dated 9 January 1996, to make a second change to the toll rules for the Brenner motorway with effect from 1 February 1996.

29. In response to a letter from the Commission dated 25 January 1996, on 8 February 1996 the Austrian authorities provided it with more details of the reasons for the new change to the tariff.

30. By letter of 9 April 1996, the Commission informed the Austrian Government that the two tariff changes in question appeared to it to be incompatible with the requirements of the Directive. First, they involved discrimination contrary to Article 7(b) of the Directive, in that they both applied only to vehicles with more than three axles, the majority of which were not registered in Austria, and only to the full itinerary on the Brenner motorway, a compulsory transit route also used for the most part by vehicles not registered in Austria, whereas the partial itineraries,not affected by the increases at issue, are used mainly by vehicles registered in Austria. Second, the increases at issue are not proportional to the costs of construction and operation of the Brenner motorway, contrary to the requirements of Article 7(h) of the Directive. Consequently, the Commission, pursuant to Article 169 of the Treaty, formally asked the Austrian Government to submit, within two months, its observations on the alleged incompatibilities of the toll system in question with Community law.

31. In its reply of 5 June 1996, the Austrian Government rejected the allegation of discrimination within the meaning of Article 7(b) of the Directive, on the ground that the tolls applicable to full itineraries, on the one hand, and to partial itineraries, on the other, did not relate to comparable situations. Moreover, the requirements of Article 7(h) of the Directive were also satisfied, in so far as the contested increases derived from the considerable costs occasioned by the Austrian network of motorways and express highways, which are financed on a centralised basis by Asfinag.

32. By letter of 30 July 1996, the Commission asked the Austrian Government to explain why, in particular for lorries with up to three axles, the purchase of an annual card was restricted to Austrian vehicles. On 10 October 1996, the Austrian Government informed the Commission that it was abolishing that difference of treatment as from 1 November 1996.

33. Unconvinced by the explanations given by the Austrian authorities, on 13 January 1997 the Commission sent the Austrian Government a reasoned opinion to the effect that, by imposing the two increases at issue, the Austrian Republic was infringing Article 7(b) and (h) of the Directive. Accordingly, it called on Austria to take, within a period of two months, the measures needed to fulfil its obligations under the Directive.

34. It its reply of 28 May 1997, the Austrian Government maintained and developed its point of view. By letter of 7 November 1997, it gave specific details of the rules applicable to the Innsbruck-Matrei/Steinach round trip (special half-rate).

35. Finally, by letter of 17 February 1998, the Austrian Government forwarded to the Commission, for checking, a new calculation of the infrastructure costs relating to the Brenner corridor, based on the calculation method adopted by the Swiss Confederation for the purposes of its negotiations with the European Union, in order to account for the level of rates which it applies to 40-tonne lorries passing through the corridor from Basle to Chiasso.

36. Considering that the Austrian Republic had not taken the measures needed to bring the infringements to an end, the Commission brought the present action.

    Admissibility

37. The Austrian Republic observes that the Commission is continuing to bring Treaty-infringement proceedings based on the Directive even though more than three years have passed since delivery of the judgment in Parliament v Council, cited above, in which the Court annulled the Directive, whilst deciding for the time being to preserve its effects pending the adoption of a new directive which, according to the very terms of that judgment, was to take place within a reasonable period.

38. Without directly challenging the admissibility of the action, the Austrian Government contends that to allow the Council to fail to restore legality to the situation and, therefore, to allow it to perpetuate a state of illegality to the detriment of the Member States is incompatible with the rule imposing on the Member States and the Community institutions reciprocal duties of sincere cooperation, the underlying inspiration for, in particular, Article 5 of the EC Treaty (now Article 10 EC).

39. According to the Republic of Austria, it is contrary to the spirit of the Treaty to criticise it for conduct allegedly contrary to a measure which has been declared void by the Court, when the failure of the competent institution to take action to remedy the situation persisted for more than three years, in breach of the first paragraph of Article 176 of the EC Treaty (now the first paragraph of Article 233 EC).

40. The defendant government considers that conclusion to be inevitable in this case, particularly since, as the Court observed in Parliament v Council, cited above, the changes made to the proposal for a directive, COM (92) 405 final (OJ 1992 C 311, p. 63), approved by the Parliament, which were incorporated in the text of the Directive, were substantial, so that the latter would not have been adopted in that form if, in particular, the Council had reconsulted the Parliament. Moreover, the Directive did not in its view take sufficient account of the requirements of environmental protection.

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).

42. However, as noted in paragraph 6 of this judgment, the European Parliament and the Council adopted on 17 June 1999, that is to say almost four years after delivery of the judgment in Parliament v Council, cited above, Directive 1999/62, which replaces the annulled directive.

43. However, even if such a time-lapse between the annulling judgment and the adoption of the new Directive 1999/62 may, at first sight, seem long, that fact cannot prevent the Commission, in the discharge of its duties as guardian of the Treaty, from resorting to the procedure under Article 169 of the Treaty, which may lead to proceedings before the Court to establish a failure to fulfil obligations under the annulled directive which, by virtue of the judgment in Parliament v Council, cited above, and for the reasons set out therein, was to continue to take effect despite being annulled.

44. It must be made clear, in that connection, that the object of the procedure under Article 169 is to prevent the Member States from failing in their obligations under the Treaty (see, in particular, Case 48/65 Lütticke and Others v Commission [1966] ECR 19, at pp. 27 and 39) and that, moreover, the decision whether or not to initiate such a procedure falls within the discretion of the Commission.

45. The action is therefore admissible.

    Substance

46. As a preliminary point, it must be noted that it is common ground that the Brenner motorway is a 'motorway within the meaning of the first indent of Article 2 of the Directive and that the tolls charged for its use are 'tolls as defined in the second indent of Article 2 of the Directive. Moreover, the only 'vehicles covered by the Directive are those which fall within the definition contained in the fourth indent of Article 2 of the Directive, namely vehicles intended for the transport of goods by road and with a maximum permissible gross laden weight of not less than 12 tonnes.

47. In these proceedings, the Commission criticises the Republic of Austria, first, for failing to fulfil its obligations under Article 7(b) of the Directive, in that the vehicles with more than three axles affected by the increases at issue are essentially vehicles not registered in Austria. Second, it claims that the Republic of Austria has failed to fulfil its obligations under Article 7(h) of the Directive in that, contrary to the requirements of that provision, those increases are not justified by the costs of construction, operation and development of the infrastructure network concerned.

    The charge of infringement of Article 7(b) of the Directive

48. The Commission states that Article 7(b) of the Directive requires the Member States to apply a toll without discriminating directly or indirectly on grounds of the nationality of the haulier or the origin or destination of the vehicle. However, the two increases at issue involve discrimination on grounds both of the nationality of the haulier and of the origin or destination of the vehicle.

49. It is appropriate to examine the two parts of this charge separately.

    The alleged discrimination on grounds of nationality of the haulier

50. The Commission claims that the two tariff changes at issue have made it considerably more expensive to use the full itinerary as a result of the non-availability of reductions as from 1 July 1995 and the subsequent increase in the price of the journey. The Commission contends, in that connection, that it is immaterial whether the price increase derives from the withdrawal of discounts or from an increase in rates. Regardless of the technical characteristics of the toll system giving rise to that result, it is the financial result, namely the actual increase in the cost of using the road infrastructure, which is decisive for the purposes of applying the Directive.

51. According to the Commission, the effect of the increases at issue is that the Brenner motorway toll rules involve a substantial disadvantage for vehicles registered in other Member States which are generally used by hauliers not possessing Austrian nationality. Foreign hauliers, who have to pay the higher rate for the distance travelled, are clearly at a disadvantage compared with those hauliers - who are for the most part Austrian - who, in practice, travel almost exclusively on sections where more advantageous tariffs and special reductions are available.

52. Consequently, the price of the full itinerary, which is clearly disproportionate compared with those of the partial itineraries and the Innsbruck-Matrei/Steinach round trip, constitutes indirect discrimination on grounds of the nationality of the haulier within the meaning of Article 7(b) of the Directive (see, mutatis mutandis, Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraphs 33 to 35).

53. The Commission contends that indirect discrimination is also evident in the fact that, as a whole, the increases at issue affect only vehicles with more than three axles, a category in which foreign-registered vehicles very largely predominate.

54. According to the Austrian Government, no increase in toll rates took place on 1 July 1995, and the abolition of pre-existing discounts and reductions cannot be contrary to the Directive, which does not require any discounts or reductions to be granted or maintained. Thus, the single tariff of ATS 1 000 per journey, in force as from 1 July 1995 for all lorries with more than three axles following the full itinerary, was introduced on 1 January 1992.

55. Moreover, the toll rules applicable to the full itinerary, on the one hand, and those applicable to partial and short itineraries, on the other, relate to two different situations which are not comparable. Short and partial itineraries on the Brenner motorway are mainly travelled by vehicles of less than 7.5 tonnes which, by reasonof their weight category, could use the trunk road. On the other hand, the full itinerary on the Brenner motorway is essentially followed, as far as lorries are concerned, by vehicles of over 7.5 tonnes, which are not allowed to use the parallel trunk road. To extend the increase in tolls to partial and short itineraries as well would have involved an unacceptable transfer of traffic to the non-paying road network. The fact of having limited the increase in rates to the full itinerary is therefore clearly justified because of that difference of situation alone.

56. Even if only vehicles of a permissible laden weight of over 12 tonnes covered by the Directive had been affected, the increase in toll rates would not have led to the application of different rules to identical situations since, even after the two tariff changes at issue, the tolls relating to the entire journey would not be disproportionate as compared with those applicable to partial and short itineraries.

57. In the view of the Austrian authorities, the tolls concerned should be summarised in a comparative table covering all possible journeys on the Brenner motorway and indicating, first, the rate per kilometre and, second, the different types of traffic associated with them, with a distinction being drawn between through traffic (origin and destination outside Austria), traffic of local origin (origin within Austria), incoming traffic (destination in Austria) and domestic traffic (origin and destination in Austria). By calculating an average value by adding together those rates per kilometre, it is possible to obtain, for each type of traffic, an average rate per kilometre which can then be compared objectively. Such a calculation gives an average rate per kilometre of ATS 33.33 for transit traffic, a figure also arrived at by the Commission. The amount for incoming or traffic of local origin is about ATS 32.57 per kilometre and that for local traffic within the Brenner motorway area is ATS 36.79 per kilometre. The amounts thus calculated are entirely equivalent, showing that the toll rules do not give rise to any discrimination contrary to the Directive.

58. According to the Republic of Austria, an objective and reliable comparison cannot be made between the rate charged in respect of the full itinerary and that applicable to partial and short itineraries unless account is taken of the rates for all road sections. Contrary to the Commission's contention, there are differences of rates both on sections which are very heavily used (from 10.53 ATS/km for Innsbruck-Matrei/Steinach to 66.67 ATS/km for Stubaital-Patsch/Igls) and on the less used sections (from 17.14 ATS/km for Matrei/Steinach-Brennersee to 69.70 ATS/km for Stubaital-Nößlach). For 11 of the 20 journeys considered, the price per kilometre is higher than that applicable to low-noise low-pollution vehicles travelling by day on the full itinerary.

59. Since the average rate determined in accordance with objective criteria for the full itinerary does not differ considerably from that applicable to partial and short itineraries and, therefore, in the absence of any unequal treatment, there is no indirect discrimination, it is immaterial what itineraries are followed by what percentage of vehicles of what origin.

60. As to the contention that the two tariff changes at issue are limited to vehicles with more than three axles, which are principally registered in other Member States, the Austrian Government contends that it is incorrect to claim that nearly all vehicles paying the rate applicable to vehicles with up to three axles, which has not changed, are Austrian. That rate applies also to nearly all buses. Buses using the Brenner motorway account for 42% of category B (vehicles with up to three axles of a height exceeding 1.30 m from the ground over the front axle) and the proportion of buses registered in other Member States represents about 93% of that figure. As regards other vehicles with up to three axles, 32% are registered abroad and 68% in Austria. The proportion of foreign buses is thus 39% (42% x 0.93) and the proportion of foreign lorries is 19% (53% x 0.32), so that, in the aggregate, 58% of vehicles in category B are foreign vehicles.

61. The Austrian Government also considers that, contrary to the view put forward by the Commission, vehicles with more than three axles are not in a situation comparable with that of vehicles with up to three axles, since they cause more damage to roads and to the environment.

62. It must be observed that, in the first part of its first allegation, the Commission essentially criticises the Republic of Austria for having, through the two tariff changes at issue, set tolls in such a manner that they give rise, in the first place, to discrimination indirectly based on the nationality of the haulier within the meaning of Article 7(b) of the Directive, in that those changes for the most part affect vehicles registered in the other Member States.

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.

64. Next, it must be noted that, as also contended by the Commission, the two tariff changes at issue affect only vehicles with more than three axles which follow the full itinerary on the Brenner motorway.

65. As the Advocate General emphasised in points 25 and 26 of his Opinion, it is clear from a comparison of the toll rates applicable on the Brenner motorway, details of which have been given in paragraphs 15 to 22 of this judgment, that, subject to a slight increase in the reduced tariff applicable to the partial itinerary fromMatrei/Steinach to the Brenner frontier post, which was raised from ATS 200 to ATS 240, the effect of the two tariff changes at issue is substantially to increase the toll rates only for vehicles with more than three axles following the full itinerary on the Brenner motorway. As the Commission rightly pointed out, the fact that the increases at issue result, in part, from the abolition of reduced tariffs in no way detracts from that finding.

66. Thus, as from 1 February 1996, the toll rates for vehicles with more than three axles following the full itinerary has increased, as compared with the situation obtaining before 1 July 1995, by 150% where they travel by day and by 283% for journeys by night. In the case of low-noise low-pollution vehicles, the increase is 130% for travel by day and 360% for travel by night. In contrast, vehicles with up to three axles, whatever the itinerary followed, have not been affected by the increases at issue, and nor have vehicles with more than three axles which do not complete the full itinerary on the Brenner motorway, save for the minor change mentioned above regarding the journey from Matrei/Steinach to the Brenner frontier post. Finally, in view of the special half-rate regime applied on the Schönberg-Matrei/Steinach round trip, the price of that journey has remained unchanged.

67. It must also be observed that it is clear from the technical study entitled 'Alpenquerender Straßengüterverkehr (Transalpine carriage of goods by road) 1994, carried out in Vienna in 1995 at the request of the Federal Minister for Economic Affairs (hereinafter 'the 1995 technical study), the results of which have not been contested by the Austrian Government, about 84% of vehicles with more than three axles, 99% of which follow the full itinerary on the Brenner motorway, are not registered in Austria.

68. In those circumstances, in view of the correlation, noted in paragraph 63 above, between the State of which hauliers are nationals and the State of registration of the vehicles operated by them, it must be held that the contested increases resulting from the two tariff changes at issue affect, in the great majority of cases, hauliers of other Member States.

69. In order to establish whether there is a failure to observe the prohibition of discrimination based on the nationality of hauliers when fixing toll rates, laid down in Article 7(b) of the Directive, it is necessary to verify whether, contrary to the assertions of the Austrian Government, vehicles not registered in Austria, the great majority of which are affected by the contested increases, are in a situation comparable to that of vehicles registered in Austria, the great majority of which have not been affected by those increases and which, according to the Commission, pay a much lower price per kilometre travelled.

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 thesame rule to different situations (see, in particular, Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30).

71. According to the Commission, it is necessary to compare the situation of vehicles with more than three axles following the full itinerary on the Brenner motorway with the situation of vehicles with more than three axles which follow a partial itinerary and lorries with up to three axles which follow the full itinerary.

72. As regards, first, the comparison between vehicles with more than three axles following the full itinerary and those with more than three axles which follow partial itineraries, the Commission, in response to a written question from the Court, specified which of those partial itineraries should be taken into account for the purposes of the comparison. In the Commission's submission, four itineraries are relevant, namely that from Innsbruck to Schönberg (or Stubaital), of about 10 km, the unchanged cost of which amounts, if a prepaid card is used, to ATS 200, that is to say 28 ATS/km, that from Innsbruck to Matrei/Steinach, of about 19 km, the unchanged cost of which, on the basis of the special half-rate regime and use of a prepaid card, is ATS 200, that is to say 10.53 ATS/km, that from Schönberg to the Brenner frontier post, of about 24.5 km, for which the toll regime is similar to that applicable to the full itinerary, and finally that from Matrei/Steinach to the Brenner frontier post, of about 15.5 km, the cost of which is ATS 240, that is to say 15.48 ATS/km.

73. As the Advocate General observed in point 34 of his Opinion, for the purposes of comparison, it is appropriate to take account of three itineraries, namely Innsbruck-Schönberg, Innsbruck-Matrei/Steinach and Matrei/Steinach-Brenner frontier post. On the other hand, the journey from Schönberg to the Brenner frontier post, also suggested by the Commission, cannot properly be taken into account as a partial itinerary, since it is similar in every respect to the full itinerary.

74. The Austrian Government's contention that account must be taken of all the partial itineraries for the purposes of the comparison with the average price per kilometre when the full itinerary is followed must be rejected.

75. As the Advocate General rightly pointed out in point 35 of his Opinion, for the purposes of the comparison, account must be taken of the partial itineraries actually used by vehicles with more than three axles for transport operations similar to that undertaken on the full itinerary. However, as the Commission has rightly observed, the itineraries mentioned in paragraph 72 of the present judgment are the only ones which serve localities which are of economic significance, namely Innsbruck, Fulpmes, near Stubatial, and Matrei, whereas the other towns along the motorway are primarily of interest to tourists. In those circumstances, it must be accepted that vehicles with more than three axles following those partial itineraries and the full itinerary have similar reasons for travelling, namely the carriage of goods by lorry, either in transit when using the full itinerary, or from or to one ofthe localities served by those partial itineraries. In contrast, the journeys which are not of interest or are of only purely incidental interest for carriage operations of that kind cannot be taken into account for the purposes of the comparison.

76. Admittedly, it is common ground that the partial itineraries on the Brenner motorway are used by only 1% of the total number of vehicles with more than three axles. However, it is likewise common ground that the majority of vehicles with more than three axles which follow those partial itineraries are for the most part registered in Austria. For the purpose of establishing the existence of any discrimination, what is decisive is the respective percentages of national and non-national hauliers making up the two groups to be compared and not the numerical membership of each of the two groups in question. Accordingly, any inequality of treatment will stem from the fact that a majority of the vehicles in the favoured group is represented by vehicles registered in Austria, whilst a majority of the vehicles making up the disfavoured group, which represent 99% of the total traffic of vehicles with more than three axles, is constituted by vehicles not registered in Austria.

77. The Austrian Government also contends that both the low volume of heavy goods traffic following the partial itineraries and the fact that such traffic involves vehicles which rarely travel by night justified non-extension to partial itineraries of the tariff regime which is differentiated by reference to the greater or lesser pollution and noise caused and the time of travel of vehicles with more than three axles, introduced for the full itinerary, having regard to the administrative costs involved in the management of such a system. Consequently, according to the Austrian authorities, they have not applied different rules to comparable situations.

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 comparablesituation, 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 AustrianGovernment 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.

89. In order to justify those tariff differences, the Austrian Government nevertheless contends, first, that an increase in tolls for partial itineraries would give rise to a significant transfer of local and regional traffic of vehicles of less than 7.5 tonnes on to the national road network, which would be unacceptable for the local population. Second, it is essential to combat, by means of the contested increases on the full itinerary, the phenomenon of 'detour traffic ('Umwegtransit), whereby 30 to 40% of vehicles with more than three axles carrying goods from Germany and Northern Europe to Italy, and vice versa, make a detour through Austria in order to benefit from lower tariffs than those applied, in particular, in Switzerland.

90. However, as the Commission observed at the hearing, the tariff differences mentioned in paragraph 80 of this judgment cannot be justified on grounds relating to environmental protection or by considerations based on national transport policy.

91. According to the first and second recitals in the preamble to the Directive, elimination of distortions of competition between transport undertakings in the Member States calls for both the harmonisation of levy systems and the establishment of fair mechanisms for charging infrastructure costs to hauliers, and those objectives can be achieved only in stages. According to the 10th recital, until technically and economically more appropriate forms of levy are in place, distortions of competition between transport undertakings of the Member States may be attenuated by the possibility of retaining or introducing tolls and of introducing motorway user charges and, under certain conditions, other road user charges. The 11th recital makes it clear, in that respect, that it is important, in particular, for tolls and user charges not to be discriminatory.

92. It is clear from those considerations that the Community legislature, whilst aware of the fact that the removal of distortions of competition in the area of carriage of goods by road can be achieved only in stages, clearly expressed its intention to achieve that objective, in so far as it is indispensable for the proper functioning of the internal market, and decided, to that end, in particular to harmonise certain aspects of the rules on tolls and user charges.

93. That explains why, in the area covered by the Directive, the Community legislature did not wish to allow States to derogate from the rules laid down therein except on the grounds, and in accordance with the conditions, laid down in the Directive.

94. Thus, exemptions from or additional reductions in vehicle charges must be authorised by the Council and be based on grounds of specific policies of a socio-economic nature or linked to that State's infrastructure (Article 6(5)(a) of the Directive).

95. On the other hand, neither the recitals in the preamble to the Directive nor the provisions of the Directive contemplate the possibility of relying on grounds relating to policies on national transport or environmental protection in order to justify tariff arrangements which give rise to indirect discrimination within the meaning of Article 7(b) of the Directive. No other provision of the Directive allows derogations from the non-discrimination rule when toll rates are fixed.

96. That interpretation of the Directive is confirmed by the new Directive 1999/62, which was adopted on the basis of the EC Treaty, in the version resulting from the Treaty of Amsterdam.

97. Directive 1999/62, which now takes account of preoccupations concerning environmental protection and balanced development of transport networks as regards the fixing of toll rates, lays down, in Article 7(4), a prohibition of discrimination on grounds of the nationality of hauliers which is identical to that contained in Article 7(b) of the annulled directive, whereas the first indent of Article 7(10) of Directive 1999/62 authorises the Member States to vary the ratesat which tolls are charged according to vehicle emission classes, provided that no toll is more than 50% above the toll charged for equivalent vehicles meeting the strictest emission standards, and according to the time of day, provided that no toll is more than 100% above the toll charged during the cheapest period of the day. Moreover, any variation in tolls charged with respect to vehicle emission classes or the time of day is to be proportionate to the objective pursued (second indent of Article 7(10) of Directive 1999/62).

98. Consequently, no account can be taken of considerations relating to environmental protection otherwise than in the strict framework laid down by Directive 1999/62. Had it been possible for such considerations to be relied on within the scope of the annulled directive, that regime would have been maintained by the new Directive 1999/62 which, in accordance with Article 6 EC, (now, after amendment, Article 12 EC), takes account of environmental concerns.

99. In view of the foregoing considerations, it must be concluded that the intention of the Community legislature, in adopting the Directive, was to prohibit tariff differences based, directly or indirectly, on the nationality of hauliers or the origin or destination of the vehicle specifically with regard to the fixing of toll rates, without permitting any derogations in that regard.

100. In addition, the objectives invoked by the Austrian Government are also covered by other legislation, such as, for example, in the sphere of combating emissions of gaseous and particulate pollutants from diesel engines, Council Directive 88/77/EEC of 3 December 1987 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from diesel engines for use in vehicles (OJ 1988 L 36, p. 33), as amended by Directive 96/1/EC of the European Parliament and of the Council of 22 January 1996 (OJ 1996 L 40, p. 1). With regard more specifically to the object of reducing the number of goods lorries passing through Austria, mention must be made of Commission Regulation (EC) No 3298/94 of 21 December 1994 laying down detailed measures concerning the system of Rights of Transit (Ecopoints) for heavy goods vehicles transiting through Austria, established by Article 11 of Protocol No 9 to the Act of Accession of Norway, Austria, Finland and Sweden (OJ 1994 L 341, p. 20), as amended by Commission Regulation (EC) No 1524/96 of 30 July 1996 (OJ 1996 L 190, p. 13).

101. In those circumstances, it must be concluded that the first part of the first charge is well founded in that the tariff difference to which vehicles with more than three axles carrying goods are subject, depending on whether those vehicles follow the full itinerary on the Brenner motorway or one of the partial itineraries mentioned in paragraph 73 of this judgment, which operates to the detriment of hauliers who are nationals of the other Member States, involves indirect discrimination based on the nationality of hauliers contrary to Article 7(b) of the Directive.

     The allegation of discrimination by reason of the origin or destination of the vehicle

102. According to the Commission, the toll regime on the Brenner motorway resulting from the two tariff changes at issue also involves indirect discrimination by reason of the 'origin and the 'destination of the vehicle within the meaning of Article 7(b) of the Directive.

103. In that connection, the Commission observes that, in so far as that regime applies without distinction as to the origin or destination of the vehicle and the difference in tariffs between the full itinerary, the partial itineraries and the short itinerary is, formally, based on an objective criterion, namely the length of the itineraries, no direct discrimination by reason of the origin or destination of the vehicle can be identified. However, there is indirect discrimination since, in the nature of things, the full itinerary is followed in the large majority of cases (80%) by transit traffic (origin and destination outside Austria), whereas the partial and short itineraries are essentially used by lorries whose origin or destination is within Austrian territory.

104. However, the difference of tariffs as between the various itineraries does not correspond to the relative lengths of those itineraries. That is so because the toll rates were increased by sometimes more than 100% for only the full itinerary and, as was observed in paragraph 72 of the present judgment, the price per kilometre, particularly where prepaid cards are used for the partial itineraries and for the Innsbruck-Matrei/Steinach round trip, is significantly lower than the price of the full itinerary since the two increases at issue were made.

105. Accordingly, the Commission considers that the fact that the two increases at issue affect as a whole only vehicles with more than three axles following the full itinerary on the Brenner motorway also constitutes indirect discrimination by reason of the 'origin or the 'destination of the vehicle.

106. The Austrian Government contends that the allegation of discrimination by reason of the origin or destination of the vehicle is based on incorrect assumptions. The tariffs applicable to the full itinerary are entirely balanced in relation to those applicable to the partial itineraries. Moreover, the Commission's argument that the two tariff changes at issue involve discrimination since they affect only lorries with more than three axles is misconceived. The latter must, in certain respects, be classified in a different category from that of lorries with fewer axles - in particular since they cause greater wear to roads and more pollution - so that there is a different situation within the meaning of the case-law cited in paragraph 70 of this judgment, which justifies different treatment.

107. The Austrian Government adds that although the major part (94%) of transit traffic comprises vehicles registered abroad, of which 96% are heavy goods vehicles and therefore fall within the C/F toll categories (vehicles with more than threeaxles), incoming traffic or traffic of local origin comprises, as to 73%, Austrian vehicles, of which 90% are heavy goods vehicles, so that the latter must themselves pay the tariffs applicable to the C/F categories. As regards domestic traffic, there is a natural predominance of journeys using only sections of the motorway. In practice they involve only Austrian lorries.

108. According to the Republic of Austria, there can therefore be no indirect discrimination regarding the point of departure or the point of arrival, since incoming traffic or traffic of local origin involving predominantly Austrian heavy goods vehicles in the C/F categories also follow the entire itinerary.

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.

110. In that connection, the Commission seeks, by the second part of its first charge, essentially to establish that the tariff changes at issue, in so far as they affect vehicles with more than three axles following the full itinerary on the Brenner motorway, the great majority of which constitute transit traffic through Austrian territory, involve indirect discrimination based on the origin and destination of the vehicle, first, in relation to vehicles with more than three axles which follow partial itineraries and, second, in relation to vehicles with up to three axles following the full itinerary, which are not essentially engaged in transit traffic.

111. As is clear from the present judgment, the two tariff changes at issue affect almost exclusively vehicles with more than three axles which follow the full itinerary on the Brenner motorway. Furthermore, as the Advocate General observed in point 49 of his Opinion, it can be inferred from the data available for 1994, included in the 1995 technical study, that the vast majority of vehicles with more than three axles following the full itinerary are engaged in transit traffic.

112. As the Court found in considering the first part of the first charge, in which breach of the prohibition of discrimination based on the nationality of the haulier was alleged, the toll regime for vehicles with more than three axles following comparable partial itineraries, which as a general rule are not intended for transit traffic, is clearly more favourable than that applicable to vehicles with more than three axles following the full itinerary which, as has just been noted, are for the most part engaged in transit traffic.

113. On the other hand, as the Advocate General demonstrated in point 52 of his Opinion, a great majority of vehicles with up to three axles which follow the full itinerary are engaged in transit traffic, so that there is no discrimination to the detriment of vehicles in that category, in so far as they enjoy precisely the most favourable tariff regime which is available to vehicles with up to three axles.

114. For the reasons set out in paragraphs 90 to 100 of this judgment in connection with the first part of the first charge, there can be no grounds to justification as would render lawful the difference of treatment, noted in paragraph 112 of this judgment, between vehicles with more than three axles which follow the full itinerary and those with more than three axles which follow the three partial itineraries referred to in paragraph 73 of this judgment.

115. Consequently, the second part of the first charge is also well founded in that the tariff difference applied to vehicles with more than three axles engaged in goods transport depending on whether they follow the full itinerary on the Brenner motorway or one of the partial itineraries mentioned in paragraph 73 of this judgment, which operates to the detriment of those engaged in transit traffic, involves indirect discrimination based on the destination or origin of the vehicle contrary to Article 7(b) of the Directive.

     The charge alleging infringement of Article 7(h) of the Directive

116. First, according to Commission, by virtue of Article 7(h) of the Directive, no increase in toll rates is justified unless it is linked to an increase in the costs relating to the journey made.

117. The Commission does not share the view of the Austrian Government that the term 'network infrastructure concerned used in Article 7(h) of the Directive refers to all motorways for which Asfinag is responsible. In this case, the infrastructure network concerned coincides with the route of the Brenner motorway.

118. Next, the Commission contends, in the first place, that, according to the communication from the Austrian Government of 15 January 1996, the expenditure of the company Alpen Straßen relating to the Brenner motorway decreased substantially over the previous years. However, the expenses of operation, maintenance and management were set to increase according to the forecasts for 1995 to 1997 (from ATS 279.2 million in 1994 to ATS 476.7 million in 1997). According to the Commission, the increases at issue can therefore be justified only partially by the abovementioned costs.

119. Furthermore, that expenditure coincides with a substantial increase in the toll income from the Brenner motorway (from ATS 1 084.5 million in 1994 to ATS 1 495 million in 1997). The income forecasts, which, according to information from the Austrian Government, were based on the tariffs in force as at 1 July 1995, show that the first toll increase in 1995 already substantially exceeded the level of costs and that there was no justification for the new toll increase decided on in 1996. The Austrian Government, moreover, seeks to justify the second contested increase essentially by reference to traffic and environmental policies. The aim of the contested increases was, it asserts, to transfer to the maximum extent possible tothe rail network the additional goods traffic which has been recorded on the Brenner motorway since 1995 and to reduce the adverse effects on the environment suffered by the population along the motorway. However, pursuant to Article 7(h) of the Directive, increases in toll rates should be linked to the increased costs of the infrastructure which is subject to the toll.

120. The Commission states that the Member States may cover the infrastructure costs through tolls which must be linked to the real costs, even if, in addition, grounds of environmental protection might lead to an increase in the tariffs. Henceforth, only the Community legislature can authorise the taking into account of external costs in evaluating tariffs, since otherwise unacceptable distortions of competition, in particular, might ensue, which the Directive specifically seeks to eliminate.

121. As regards the political considerations put forward by the Austrian Government regarding, in particular, bilateral negotiations between the European Union and the Swiss Confederation regarding transport, they have no legal relevance to the present proceedings, which are without prejudice to any foreseeable political solutions which might be arrived at in the future with respect to the Brenner motorway.

122. Finally, the Commission contends that the calculation of the infrastructure costs for the Brenner corridor submitted by the Republic of Austria in the context of the negotiations on the proposal for a new directive, which became Directive 1999/62, does not constitute an appropriate basis for determining the relevant costs referred to in Article 7(h) of the Directive. Moreover, in relying on that calculation in the present context, the Republic of Austria is departing from its view that the network 'concerned should be seen as being the entire network financed by Asfinag.

123. As regards this new calculation of costs, based on the same principles as the cost calculation for the Basle-Chiasso corridor submitted by the Swiss Confederation in connection with the agreement with the European Union on transport, the Commission emphasises, first, that the fact that it accepted a calculation of that kind merely as a basis for political discussion in negotiating a transport agreement with that non-member country does not constitute an appropriate basis for legal appraisal of an infringement of a provision of the Directive by a Member State. Secondly, as regards decisive parameters and the results obtained, the Swiss and Austrian calculation methods differ considerably. Third, regardless of whether or not that method is scientifically valid, the Commission cannot in any event subscribe to the results obtained by that method.

124. First, according to those calculations, some 26% of the infrastructure costs of the entire Austrian motorway and express highways network are attributed to the Brenner section alone even though it accounts for only about 2% of that network. Second, that method allocates 65% of the total infrastructure costs to lorries with more than two axles whereas that category accounts for only 18% of total traffic on the Brenner motorway. In contrast, under the Swiss calculation method, thesame category of lorries, which accounts for 8.2% of total transalpine traffic in the Basle-Chiasso corridor, gives rise to only 16.5% of the total infrastructure costs. Moreover, according to the Austrian Government's calculation method, 42.8% of the infrastructure costs of the entire Austrian network are attributable to lorries, whereas under the Swiss method only 17.3% of the costs are attributable to lorries.

125. For all those reasons, the Commission contends that that new calculation method, introduced ex post facto by the Austrian Government, is not an appropriate basis for determining toll rates for the Brenner motorway in accordance with Article 7(h) of the Directive.

126. According to the Austrian Government, the expression 'infrastructure network covers all sections of motorways financed by Asfinag. However, having regard to the latter's indebtedness, the Austrian Government claims it was entitled, without infringing Article 7(h) of the Directive, to increase the toll rates on the Brenner motorway.

127. The Austrian Government also considers that it is contradictory for the Commission to state, first, that the Austrian calculation of infrastructure costs for the Brenner corridor does not constitute an appropriate basis for determining the relevant costs referred to in Article 7(h) of the Directive, whilst at the same time accepting, on other hand, the calculation produced by the Swiss Confederation - drawn up in accordance with the same principles as those used for that of the Republic of Austria - as a basis for the rates of charges negotiated with that country for the use of infrastructures by heavy goods vehicles.

128. The very restrictive interpretation adopted by the Commission of Article 7(h) of the Directive is also, in the Austrian Government's view, unacceptable as a matter of principle. That thesis would lead to extremely high tolls being charged on motorways carrying light traffic to enable the infrastructure costs to be covered. Roads carrying heavy traffic, on the other hand, would give rise only to low tolls, since the infrastructure costs, which depend to only a relatively limited extent on traffic frequency, would be shared by a large number of vehicles. On roads such as the Brenner motorway, in particular, which faces strong competition from other routes, of which there are few, crossing the Alps, that would lead to an unacceptable situation in which a new increase of traffic would necessarily entail a greater reduction in the toll per vehicle. Such a decrease would even further increase the attractiveness of that road, creating a vicious circle whose effects would run counter to the environmental objectives and principles governing transport policy.

129. Such a narrow application of the Directive, and in particular of Article 7(h) thereof, would lead to absurd results for roads crossing the Alps. In contrast, an interpretation of the Directive based on a calculation of the true costs of using a road would, in the submission of the Austrian Government, enable results to beachieved which conformed to the Directive and were useful in terms of environmental policy and transport policy.

130. It must be observed first that, contrary to the argument advanced by the Austrian Government, the 'infrastructure network concerned within the meaning of Article 7(h) of the Directive refers only to the section of the infrastructure for the use of which the toll is paid.

131. If the Austrian Government's argument were accepted, Member States would be able, through the financing arrangements chosen, to evade the requirement of a link between toll rates and the costs of construction, operation and development of the section in question and Article 7(h) of the Directive would thus to a large extent be rendered ineffectual.

132. That interpretation would also be in flagrant contradiction with Article 7(a) of the Directive in that it would mean that, contrary to the requirements of that provision, tolls and user charges might be levied cumulatively for use of the same section of motorway in cases other than those expressly authorised by the second sentence of Article 7(a), namely for networks where user charges are made, for 'the use of bridges, tunnels and mountain passes, a category into which the Brenner motorway falls.

133. If the thesis put forward by the Austrian Government were accepted, the result would be that vehicles with a total gross laden weight of 12 tonnes or more would contribute to financing the entire motorway network funded by Asfinag by means of the toll paid for use of the Brenner motorway and at the same time through the user charges to which they are liable for using Austrian motorway infrastructures in general.

134. As regards the Austrian Government's argument that the requirement of a direct link between toll rates and costs associated with the infrastructure concerned would give rise to successive decreases in toll rates on heavily used motorways which, by reason of the subsequent increase in traffic, would have more and more damaging effects on, in particular, the environment, it need only be pointed out that, if such a consequence were to ensue, it would be the result of a mechanism intentionally created by the Community legislature, upon which it would then, if necessary, be incumbent to take appropriate measures to remedy the situation.

135. As regards, second, the allegation that there is no link between the contested increases and the costs relating to the Brenner motorway, it must be pointed out, as observed by the Advocate General in points 61 and 62 of his Opinion, that an examination of the income and expenditure of the company Alpen Straßen for the previous financial years, and of the forecasts for 1995 to 1997, shows that, when the contested measures were adopted, the forecasts of the Austrian authorities themselves showed that the tolls charged on the Brenner motorway already exceeded by more than 150% the costs of construction, operation and developmentof the same motorway, even if the effects of the increase in the toll rates brought about by the abovementioned measures were disregarded.

136. In those circumstances, the two tariff changes at issue cannot be regarded as being linked to the costs of the infrastructure network concerned within the meaning of Article 7(h) of the Directive. Moreover, the Austrian Government's explanation for the second increase at issue is based essentially on reasons associated with traffic and environmental policy.

137. In the course of the proceedings before the Court, the Austrian Government has maintained that it was necessary to use as a reference information other than that which it had forwarded in the pre-litigation phase, namely the data resulting from the new method of calculating the costs of the infrastructure network developed on a proposal from the Republic of Austria in the context of the negotiations between the European Union and the Swiss Confederation regarding the carriage of goods by road, which is analogous to that used by that non-member country in determining costs for the Basle-Chiasso corridor.

138. It need only be pointed out that, even if the new calculation method belatedly produced were admissible, the Republic of Austria has not explained how that method is more appropriate for calculating the costs of the Brenner motorway than the method which it had applied in making the calculation supplied to the Commission in the pre-litigation phase in response to the charge of failure to comply with Article 7(h) of the Directive. Moreover, as the Commission has rightly emphasised, that provision implies that the adjustment of toll rates should be made after the calculation justifying it. It cannot therefore, in principle, justify an increase in those rates by means of a calculation made subsequently.

139. In those circumstances, the second charge must be upheld.

140. It must therefore be concluded that, first, by raising, on 1 July 1995 and 1 February 1996, the tolls for the full itinerary on the Brenner motorway but not for partial itineraries on that motorway and, second, by not applying the abovementioned tolls only in order to cover the costs linked with the construction, operation and development of the Brenner motorway, the Republic of Austria has failed to fulfil its obligations under, respectively, Article 7(b) and Article 7(h) of the Directive.

     Costs

141. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Republic of Austria has been unsuccessful it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by raising, on 1 July 1995 and 1 February 1996, the tolls for the full itinerary on the Brenner motorway, a transit route through Austria used predominantly by goods vehicles of a maximum permissible gross laden weight of not less than 12 tonnes registered in other Member States, but not for partial itineraries on that motorway, the great majority of the users of which are which are vehicles of a maximum permissible gross laden weight of not less than 12 tonnes used for the same type of transport and registered in Austria, and, second, by not applying the abovementioned tolls only in order to cover the costs linked with the construction, operation and development of the Brenner motorway, the Republic of Austria has failed to fulfil its obligations under, respectively, Article 7(b) and Article 7(h) of Council Directive 93/89/EEC on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures;

2. Orders the Republic of Austria to pay the costs.

Rodríguez IglesiasMoitinho de Almeida Sevón Schintgen Kapteyn Gulmann Puissochet Jann Wathelet Skouris Macken

Delivered in open court in Luxembourg on 26 September 2000.

R. Grass G.C. Rodríguez Iglesias

Registrar President

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1: Language of the case: German.