Volltext: The Transport Protocol of the Alpine Convention: Added Value to the Transport Policy of the European Community?

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.
	        

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