37 
7(b) of the Directive does not list exhaustively all grounds for derogation. She adds that 
in other cases, the Court generally accepted the possibility to justify indirect 
discriminations 136 . The future will show in which direction jurisprudence will develop. 
The second breach of Community law consists, according to the Court, in the fact that 
the new Austrian toll system did not respect the obligation laid down in Article 7(h) of 
the Directive 93/89/EEC, that "toll rates shall be related to the costs of constructing, 
operating and developing the infrastructure network concerned." Under the new 
Austrian toll system, the money raised could also be used for the financing of other 
parts of the motorway network, not only the Brenner motorway. 
Regarding this topic, it has to be clearly pointed out that the Directive in question was 
not environmentally motivated. The rule that tolls may only be used for the construction 
and operation of the motorway where they are levied implies, that a huge fréquentation 
is paired with low toll. The more trucks will use the motorway, the more the toll will 
decrease. This is a clear incentive in favour of road transport, because the more goods 
are shipped by road, the cheaper each single shipment will become. It is beyond doubts 
that, when "adopting this Directive, the Community simply had not forged Directive 
93/89 as a tool for environmental protection." 137 Another author goes even further by 
declaring the provision of the Directive in question as contrary to primary Community 
law, concretely to the polluter-pays principle enshrined in Article 174(2) EC 138 . 
Directive 1999/62 tried to take into account some of the environmental considerations 
mentioned above. Under Article 7(10), Member States are allowed to vary the toll 
according to vehicle emission classes. Additionally, Article 9(2) of the Directive opens 
up for the possibility to attribute a certain percentage of the toll to "environmental 
protection and the balanced development of transport networks". This gives Member 
States "a great deal of room to decide where to spend revenue from pricing; including 
subsidising railways." 139 It is a first step in the direction of the policy presented in the 
Commission's White Paper on a "European transport policy for 2010: time to decide" of 
2001. 
See supra, note 115. p.109. 
137 See supra, note 134. p.108. 
138 See supra, note 115. p.110. 
139 "How long can de Palacio remain in office?". (2003) 117 T&E Bulletin 1.