In Case C-320/03

ORDER OF THE PRESIDENT OF THE COURT

27 April 2004 (*)

(Application for interim relief – Application for temporary measures – Transport –Sectoral ban on driving)

In Case C-320/03 R,

Commission of the European Communities, represented by C.Schmidt, acting as Agent, with an address for service in Luxembourg,

applicant,

supported by

Federal Republic of Germany, represented by W.-D. Plessing and A.Tiemann, acting as Agents, assisted by T.Lübbig, Rechtsanwalt,

and by

Italian Republic, represented by I.M. Braguglia, acting as Agent, assisted by G.de Bellis, avvocato dello Stato, with an address for service in Luxembourg,

interveners,

v

Republic of Austria, represented by H.Dossi, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for suspension of implementation of the sectoral ban on driving contained in the Verordnung des Landeshauptmanns von Tirol, mit der auf der A12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot) (regulation adopted by the First Minister of the Tyrol limiting transport on the A12 motorway in the Inn valley (sectoral ban on driving)) of 27May 2003 (BGBl. II, 2003/279),

THE PRESIDENT OF THE COURT

makes the following

Order

1By an application lodged with the Registry of the Court on 24July 2003, the Commission of the European Communities brought an action under Article 226EC for a declaration that, by imposing a ban on driving affecting heavy goods vehicles transporting certain goods by the Verordnung des Landeshauptmanns von Tirol, mit der auf der A12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot) (regulation adopted by the First Minister of the Land of Tyrol limiting traffic on the A12 motorway in the Inn Valley (sectoral ban on driving)) of 27May 2003 (BGBl. II, 2003/279) (‘the contested regulation’), the Republic of Austria has failed to fulfil its obligations under Articles 1 and 3 of Council Regulation (EEC) No 881/92 of 26March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States (OJ 1992 L95, p.1), as amended by Regulation (EC) No484/2002 of the European Parliament and of the Council of 1March 2002 (OJ 2002 L76, p.1), Articles 1 and 6 of Council Regulation (EEC) No 3118/93 of 25October 1993 laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State (OJ 1993 L279, p.1), as amended by Regulation No484/2002, and Articles 28EC to 30EC.

Background to the present proceedings

2By separate document, lodged at the Registry of the Court on 25July 2003, the Commission brought an application under Articles 242EC and 243EC for interim relief requiring the Republic of Austria to take the measures necessary to suspend application of the ban on driving introduced by the contested regulation until such time as the Court has given a ruling in the main action.

3The Commission also requested, under Article 84(2) of the Rules of Procedure, that the request for interim relief be granted provisionally, even before the other party has submitted its observations, until the making of the order terminating the interim relief proceedings.

4By order of 30July 2003 in Case C-320/03R Commission v Austria [2003] ECR I-7929, the Republic of Austria was ordered temporarily to suspend implementation of the ban on driving contained in the contested regulation until the making of the order terminating the interim relief proceedings.

5By order of 2 October 2003 in Case C-320/03R Commission v Austria [2003] ECR I-11665, the measure suspending implementation of that ban on driving was extended up to 30April 2004.

6That order of 2 October 2003 also granted leave to the Federal Republic of Germany and the Italian Republic to intervene in the present interim-relief proceedings in support of the form of order sought by the Commission.

7Paragraphs 105 to 107 of the above order of 2October 2003 in Commission v Austria are worded as follows:

‘105Nevertheless, given the significant ambient air quality problems in the area in question, the parties are invited to consult each other for the purpose of drawing up measures which may reconcile their conflicting interests, even if only temporarily, and to notify the Court of any compromise reached.

106Failing that, the parties are invited to gather all the relevant information, inter alia on changes in ambient air quality in the area concerned, the estimated impact of the ban on night travel during 2003 and the prospects for developing rail transport or transport by other routes, and to submit that information to the Court, together with any observations they consider relevant, by 6February 2004 at the latest.

107On the basis of that information and observations, the measure decided by this order may be extended, revoked or amended.’

8On 4February 2004 the Republic of Austria requested, with the agreement of the other parties to the present proceedings, that the period for submitting such relevant information to the Court be extended up to 1March 2004.In support of that request it submitted that an extension of that period was desirable in the light of the real possibilities of reconciling the various interests in issue.That request was granted by order of the President of the Court of 5February 2004.

9However, as this consultation did not lead to a compromise within the new period laid down for that purpose, the Federal Republic of Germany, the Republic of Austria and the Commission submitted their observations to the Court on 25February, 25February and 1March 2004 respectively.

Prolongation of the measure suspending implementation of the contested regulation

Observations of the parties

10The Commission states that two meetings were held between the parties, the first on 14January 2004 and the second on 17February 2004, during which an examination was made of a number of alternative measures to the sectoral ban on driving promulgated by the contested regulation and which tended in the same direction, without, however, being discriminatory in nature or constituting such a significant obstacle to the freedom to provide transit services and to the free movement of goods.

11The Commission states that scientific estimates made by Ökoscience AG, established in Coire (Switzerland), represented by J.Thudium, an expert in air hygiene who accompanied the Austrian delegation, indicated that the sectoral ban on driving could result, in the case of nitrous oxides, in a reduction in pollutants of between 5% and 6% of present emissions.The Commission does not call those estimates into question.

12With regard to the effects of the reduction in pollutants liable to result from the alternative measures to the sectoral ban on driving envisaged by the contested regulation, it is clear from those estimates that the ban on driving heavy goods vehicles of classes EURO 0 and 1 would allow a 2% reduction in nitrous oxides, a ban on driving heavy goods vehicles of class EURO 2 would lead to a reduction of 6% to 7%, while a limitation on the speed of cars over the section covered by the driving ban through the installation of a traffic management device would, under ideal conditions, result in a reduction of such nitrous oxides in the order of 11%.Data on the effects of an extension of the ban on night driving for heavy goods vehicles from seven hours per day, as is the position at present, to twelve hours per day are, the Commission states, not yet available.

13It follows that at least two of the above measures would, taken separately, have a more significant effect than the sectoral driving ban laid down by the contested regulation.As those substitute measures are in accordance with Community law, the Commission considers that this constitutes confirmation of its view that this sectoral ban on driving is disproportionate.

14The Austrian Government points out that measures consisting of a ban on driving heavy goods vehicles have a very graduated effect.A ban on driving heavy goods vehicles of classes EURO 0, 1 and 2 on the Inn Valley motorway (A12 motorway) would lead to a reduction of nitrous oxides of 8.5% for 2003 and 6% for 2004, with that reduction being no greater than 3.5% for 2005.By the latest during this latter year the ban on driving ought to be reinforced by including heavy goods vehicles of class EURO 3 in order to continue to ensure a significant reductive effect, such a ban being, however, difficult to justify in terms of legal certainty.

15So far as concerns a speed limit for cars travelling on the section covered by the sectoral driving ban laid down by the contested regulation, the Austrian Government submits, on the basis of scientific studies, that rigid speed limits, applicable day and night over long distances, regardless of the state of traffic, are poorly complied with in relative terms.A traffic management device based on polluting emissions would make it possible to envisage a greater degree of compliance with the speed limits but its implementation would take some time, with the result that, even if the work on construction of such a device could, as planned, start during the first half of 2004, the system would probably not be operational before 2005.

16From this the Austrian Government concludes that meeting the objectives relating to ambient air quality requires, in addition to a ban on night driving, the sectoral ban on driving provided for by the contested regulation.The substitution measures proposed by the Commission are not at present achievable or would not be as effective as implementation of that ban.

17The German Government points out that, by Regulation (EC) No2327/2003 of the European Parliament and of the Council of 22December 2003 establishing a transitional points system applicable to heavy goods vehicles travelling through Austria for 2004 within the framework of a sustainable transport policy (OJ 2003 L345, p.30), the Community established a new regulatory system of ecopoints from 1January 2004, which sets out more stringent conditions for transit journeys through Austria.It argues that Austria is not implementing that regulation and has therefore not exhausted the measures available to it for the purpose of improving the protection of the population and the environment.

18The German Government stresses the negative economic repercussions and frequently irreparable damage which would be suffered by many transport companies as a result of the sectoral ban on driving provided for in the contested regulation.It takes the view that the solution advocated by the Republic of Austria of transferring to the railways the transport subject to such a ban will encounter much greater obstacles than that Member State acknowledges, in particular because of a shortfall in rail transport capacity and the difficulties in transferring certain types of transport to the rail network.

Assessment

19It was held in paragraph 65 of the order of 2October 2003 in Commission v Austria, cited above, that the soundness of the main action could not be discounted out of hand, even though the arguments put forward by the Republic of Austria in its defence could not be disregarded.Paragraph 102 of that order stated that the risk of serious and irreparable damage following immediate application of the contested regulation had to be regarded as having been sufficiently established.In those circumstances, the decision was taken in that order to extend for a limited period expiring on 30April 2004 the injunction issued to the Republic of Austria to suspend enforcement of the sectoral ban on driving laid down in that regulation.The purpose of that suspensory measure was, in particular, to allow the parties to consult each other for the purpose of drawing up measures capable of reconciling, even if only temporarily, their conflicting interests.

20The observations submitted to the Court by the parties to the present proceedings following the failure of the negotiations conducted for that purpose do not place in question the basis of that order or the conclusions arrived at by the President of the Court of First Instance in his capacity as the judge granting interim relief.

21The contested regulation imposes a permanent ban on the circulation of heavy goods vehicles with a maximum authorised weight greater than 7.5 tonnes which transport specified goods over a 46-kilometre section of motorway constituting one of the main land links for trade between Northern Europe and Northern Italy, whereas bypassing the region in question encounters other limitations on circulation and the observations of the Austrian Government have failed to dispose of doubts as to what may be the indirectly discriminatory nature of this barrier to the rights of free movement laid down in the ECTreaty.

22The Austrian Government refers to the concept of ‘rail-compatible goods’ (‘bahnaffine Güter’) as justification for the choice of goods covered by the contested regulation.That choice was thus not made on the basis of any particular contribution made by the goods in question in exceeding the limit values for harmful emissions but rather on the ostensible appropriateness of those goods for rail transport.As the decision to opt for rail transport for specific goods frequently depends less on the nature of the goods than on other criteria, such as the journey to be made, the duration of the transport and the resultant costs, it cannot be ruled out that this criterion will be unable to justify the choice made.The fact that paragraph 3 of that regulation lists a variety of widely differing goods, such as waste, cereals, logs, bark and cork, ferrous and non-ferrous ores, pebbles, soil, rubble, motor vehicles and trailers, as well as construction steel, tends rather to reinforce doubts existing in that regard.

23Furthermore, the observations submitted to the Court in pursuance of paragraph 106 of the order of 2October 2003 in Commission v Austria make clear that there are a number of replacement measures which would enable a substantial reduction in harmful emissions to be achieved.Admittedly, some of those other measures will lose some of their efficacy over the years, in particular the ban on driving heavy goods vehicles of classes EURO 0, 1 and 2 as a result of the progressive replacement of those vehicles by more modern heavy goods vehicles.However, the present interim-relief proceedings concern the immediate future, that is to say, the period which will elapse before the Court gives its ruling in the main action.

24The parties express divergent views as to whether these other measures are capable of replacing the sectoral ban on driving laid down by the contested regulation or whether only a combination of that ban and those measures will make it possible to achieve the vital reduction in harmful emissions.It appears in this regard, even if it is assumed that such a combination is necessary, that the fact none the less remains that the other measures might have the effect of reducing such emissions.The weight of the interests in the two examples in favour of extending the period of suspension of implementation of the contested regulation laid down by the order of 30 July2003 in Commission v Austria is thus reinforced.

25Subject to the foregoing, the information supplied to the Court in pursuance of the order of 2October 2003 in Commission v Austria has not highlighted any new factors which should, at this stage of the proceedings, lead the President of the Court, acting in his capacity as the judge responsible for granting interim relief, to an outcome of the balancing of the interests involved which differs from that on the basis of which that order was made.

26In those circumstances, and in the absence of consultation between the parties in regard to measures capable of reconciling, even if only temporarily, their conflicting interests for the purpose of reaching a compromise, the measure suspending implementation laid down by the order of 30July 2003 in Commission v Austria, which was maintained in force by the order of 2October 2003 in Commission v Austria for the period expiring on 30April 2004, is extended, as from that latter date, until such time as the Court has given a ruling in the main action.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1.The measure suspending implementation laid down by the order of 30July 2003 in Case C-320/03R Commission v Austria, which was maintained in force by the order of 2October 2003 in Commission v Austria, is extended until such time as the Court has given a ruling in the main action.

2.Costs are reserved.

Luxembourg,27 April 2004.

* Language of the case: German.