28
This would thus be the solution to the current discussion between the Commission and
Germany on the compatibility of the planned road tolls for German highways 95 .
Another scenario can be imagined: A country ratifies the Transport Protocol and then
accedes to the Community. This could theoretically happen, with different probabilities,
in the cases of Liechtenstein, Monaco, Slovenia or Switzerland. In the case of a conflict
between the Transport Protocol and Community law, Article 307(1) EC states that the
obligations arising from international agreements concluded before the date of
accession of a Member State "shall not be affected by the provisions of this [EC]
Treaty." Nevertheless, according to Article 307(2) EC, the new Member States would
be obliged to "take all appropriate steps to eliminate the incompatibilities established."
Consequently, measures based on the Transport Protocol would prevail over
Community law only in exceptional cases and for a transitional period of time 96 .
However, the precise scope of the obligation to eliminate existing incompatibilities
between Community law and prior agreements has still not been clarified in the
jurisprudence of the Court and in literature, one can find different opinions thereto 97 .
However, the possibility of a denunciation of the Alpine Convention and its Protocols
has expressly be foreseen by these documents 98 .
4.2. Influences on the trans-European Transport Networks
The concept of trans-European Transport Networks (TEN-T) emerged at the end of the
1980s in view of the completion of the Single Market. The Treaty of Maastricht then
inserted a provision, Article 154(1) EC, obliging the Community to "contribute to the
establishment and development of trans-European networks in the areas of transport,
telecommunications and energy infrastructures."
Community law and the general mles and principles of customary international public law. The
Transport Protocol is not part of these mles but is an ordinary contractual agreement of public
international law.
95 "EU attackiert deutsche Lastwagenmaut. Kommissarin Loyola de Palacio prüft Verfahren gegen rot
grünes Prestigeprojekt". Frankfurter Allgemeine Zeitung, 21 February 2003. p.13. For further details, see
infra, 4.3. Influences on the Community policy on infrastructure pricing, p.32.
96 See supra, note 83. p.311.
97 See R. Churchill and N. Foster. "European Community law and prior Treaty obligations of Member
States: The Spanish Fishermen's cases", [1987] International and Comparative Law Quarterly 504; as
well as J. Klabbers, "Moribund on the fourth of July? The Court of Justice on prior agreements of the
Member States". (2001) 26 ELRev 187.
98 Article 13 AC and Article 23 TP.