36
The Commission challenged this increase of the Brenner toll on the basis of an alleged
discrimination of the haulier's nationality and on non-respect of the obligation to use the
income from the toll exclusively for the maintenance of the section of the infrastructure
for the use of which the toll is paid. The Court of Justice declared both claims for well-
founded 132 .
According to the Court, the first breach of Community law consists in a discrimination
against hauliers from other Member States. By the new toll system for the Brenner pass,
Austria had introduced three different levels of toll, for full, partial and short journeys
on the motorway. At each level, this increase was of different importance. The toll for
the full itinerary has been raised the most compared to the previous situation, while the
toll for the other two categories had not been touched significantly. Since non-Austrian
hauliers mostly used the full itinerary, they were more concerned by the increase of the
toll than their Austrian competitors. This indirect discrimination of foreign hauliers
infringed Article 7(b) of the former Directive 93/98/EEC then in force. According to the
Court, derogations from the principle of non-discrimination may only be granted when
expressly foreseen by the Directive and "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." 133
At first sight, this argument seems convincing, the principle of non-discrimination based
on nationality being one of the basic principles of Community law and exceptions being
subject to restrictive interpretation 134 . Nevertheless, some authors do not share the
Court's assessment. Advocate General Saggio stated in his opinion, that this
"discrimination, being indirect, may in principle be justified on objective and impartial
grounds connected inter alia with the requirements of national transport policy and
protection of the environment." 135 Epiney makes a similar argument, saying that Article
132 Judgment of 26 September 2000. in case C-205/98, Commission v. Austria ("Brenner toll”), [2000]
ECR1-7367.
133 See supra, note 132. para 95.
134 See L. Krämer. Casebook on EU Environmental Law, Hart Publishing. Oxford and Portland/Oregon
2002. p. 105.
135 Opinion of Advocate General Saggio. delivered on 24 February 2000. in case C-205/98. Commission
v. Austria, [2000] ECR I 7367. para 43.