Order of the President of the Court of 2 October 2003. Commission of the European Communities v Republic of Austria. Application for interim measures. Case C-320/03 R.

Ordonnance de la Cour

Case C-320/03 R

Commission of the European Communities
v
Republic of Austria

«(Interlocutory proceedings – Application for interim measures – Transport – Sectoral ban on driving)»

Order of the President of the Court, 2 October 2003 I - 0000     

Summary of the Order

Applications for interim measures – Suspension of operation – Interim measures – Conditions for granting – Urgency – Serious and irreparable harm – Balancing of all of the interests in issue – Operation and economic and financial stability of Community undertakings
(Arts 242 EC and 243 EC; Rules of Procedure of the Court, Art. 83(2))

In order to establish the need to adopt interim measures and to determine their scope, it is necessary to balance the interests in issue, since the threat of serious and irreparable harm, which is the criterion for the alleged urgency, is one of the terms of the comparison made in this connection.In this regard, harm caused to the protection of the environment and to health is generally irreversible since, more often than not, damage to such interests cannot, by reason of its nature, be eliminated retroactively.However, in the case of a national regulation introducing a sectoral ban on motorway driving, with a view to reducing emissions linked to human activities and thus improving air quality, a structural approach over the medium term in regard to ambient air quality would not be jeopardised by the temporary non-application of that regulation.By contrast, such a ban on driving could affect significantly the operation and economic and financial stability of many Community undertakings. Such harm would not be limited to the aggregation of adverse financial consequences for the various undertakings. As there is evidence of a significant risk that the ban on driving could force many undertakings to close permanently and that a structural and, to a certain extent, irreversible change in conditions of transport and trade flows of goods within and across the area in question could occur, the risk of serious and irreparable damage is in those circumstances sufficiently established.see paras 90-92, 97, 101-102

ORDER OF THE PRESIDENT OF THE COURT
2 October 2003 (1)

((Interlocutory proceedings – Application for interim 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, and T. Lübbig, Rechtsanwalt,and by Italian Republic, represented by I.M. Braguglia, acting as Agent, and G. De Bellis, avvocato dello Stato, with an address for service in Luxembourg,

interveners,

v

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

defendant,

APPLICATION for the suspension of operation of the sectoral ban on driving provided for in the Verordnung des Landeshauptmanns von Tirol, mit der auf der A 12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot) (Regulation adopted by the First Minister of the Land of Tyrol limiting use of the A 12 motorway in the Inn valley (sectoral ban on driving)) of 27 May 2003 (BGBl. II, 2003/279),

THE PRESIDENT OF THE COURT

makes the following

Order

1 By application lodged at the Court Registry on 24 July 2003, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by imposing the ban on the driving of lorries carrying certain types of goods provided for in the Verordnung des Landeshauptmanns von Tirol, mit der auf der A 12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot) (Regulation adopted by the First Minister of the Tyrol limiting use of the A 12 motorway in the Inn valley (sectoral ban on driving)) of 27 May 2003 (BGBl. II, 2003/279, hereinafter 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 26 March 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 L 95, p. 1), as amended by Regulation (EC) No 484/2002 of the European Parliament and of the Council of 1 March 2002 (OJ 2002 L 76, p. 1) (hereinafter Regulation No 881/92), Articles 1 and 6 of Council Regulation (EEC) No 3118/93 of 25 October 1993 laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State (OJ 1993 L 279, p. 1), as amended by Regulation No 484/2002 (hereinafter Regulation No 3118/93), and Articles 28 EC to 30 EC.

2 By separate document lodged at the Court Registry on 25 July 2003, the Commission made an application for interim relief pursuant to Articles 242 EC and 243 EC, seeking an order enjoining the Republic of Austria to adopt the measures necessary to suspend enforcement of the ban on driving introduced by the contested regulation until such time as the Court has ruled in the main action.

3 The Commission also asked the President of the Court, pursuant to Article 84(2) of the Rules of Procedure, to grant its application for interim relief before the other party had presented its observations, pending the order terminating the interlocutory proceedings.

4 On 30 July 2003, as an interim measure, the Republic of Austria was ordered to suspend application of the ban on driving provided for in the contested regulation pending delivery of the order terminating the interlocutory proceedings.

5 By applications lodged at the Court Registry on 29 July 2003 and 6 August 2003 respectively, the Federal Republic of Germany and the Italian Republic applied for leave to intervene in these proceedings for interim relief in support of the form of order sought by the Commission.

6 The applications to intervene in the proceedings for interim relief are granted pursuant to the first and fourth paragraphs of Article 40 of the Statute of the Court of Justice and Article 93(1) and (2) of the Rules of Procedure.

7 The Republic of Austria submitted its written observations on the application for interim relief by fax dated 18 August 2003. By faxes dated the same day, the Federal Republic of Germany and the Italian Republic submitted their statements in intervention.

8 The parties presented oral argument on 27 August 2003.

Legal framework and facts

Community legislation concerning the internal market in the road haulage sector

9 Regulations No 881/92 and No 3118/93, on which the Commission bases its application, form the legal framework for the internal road haulage market and govern the freedom to provide services in that sector within the Community.

Community directives on the protection of ambient air quality

10 The Community legislation concerning the protection of ambient air quality consists in particular of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (OJ 1996 L 296, p. 55) and Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41), as amended by Commission Decision 2001/744/EC of 17 October 2001 (OJ 2001 L 278, p. 35) ( Directive 1999/30).

11 The general aim of Directive 96/62, as stated in Article 1 thereof, is to define the basic principles of a common strategy to:

─ define and establish objectives for ambient air quality in the Community designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole,

─ assess the ambient air quality in Member States on the basis of common methods and criteria,

─ obtain adequate information on ambient air quality and ensure that it is made available to the public, inter alia by means of alert thresholds,

─ maintain ambient air quality where it is good and improve it in other cases.

12 Article 7 of Directive 96/62 provides: Improvement of ambient air quality General requirements

1. Member States shall take the necessary measures to ensure compliance with the limit values.

2. Measures taken in order to achieve the aims of this Directive shall:

(a) take into account an integrated approach to the protection of air, water and soil;

(b) not contravene Community legislation on the protection of safety and health of workers at work;

(c) have no significant negative effects on the environment in the other Member States.

3. Member States shall draw up action plans indicating the measures to be taken in the short term where there is a risk of the limit values and/or alert thresholds being exceeded, in order to reduce that risk and to limit the duration of such an occurrence. Such plans may, depending on the individual case, provide for measures to control and, where necessary, suspend activities, including motor-vehicle traffic, which contribute to the limit values being exceeded.

13 In addition, Article 8(3) of Directive 96/62 provides: In the zones and agglomerations [in which the levels of one or more pollutants are higher than the limit value plus the margin of tolerance], Member States shall take measures to ensure that a plan or programme is prepared or implemented for attaining the limit value within the specific time-limit.The said plan or programme, which must be made available to the public, shall incorporate at least the information listed in Annex IV.

14 Limit values for nitrogen dioxide are set in Directive 1999/30.

15 Article 4 of Directive 1999/30 provides: Nitrogen dioxide and oxides of nitrogen

1. Member States shall take the measures necessary to ensure that concentrations of nitrogen dioxide and, where applicable, of oxides of nitrogen, in ambient air, as assessed in accordance with Article 7, do not exceed the limit values laid down in Section I of Annex II as from the dates specified therein.

The margins of tolerance laid down in Section I of Annex II shall apply in accordance with Article 8 of Directive 96/62/EC.

2. The alert threshold for concentrations of nitrogen dioxide in ambient air shall be that laid down in Section II of Annex II.

16 It is clear from Annex II to Directive 1999/30 that, in the case of nitrogen dioxide, the annual limit value plus the margin of tolerance allowed is set at 56 µg/m 3 for the year 2002.

17 According to the fourth recital in the preamble to Directive 1999/30, the limit values laid down in that directive are minimum requirements and, in accordance with Article 130t of the EC Treaty (now Article 176 EC), Member States may maintain or introduce more stringent protective measures and, in particular, introduce stricter limit values.

National law and the facts of the dispute

18 Directives 96/62 and 1999/30 were transposed into Austrian law by means of amendments to the Immissionsschutzgesetz-Luft (Austrian Emission Control Act-Air, BGBl., 1997/115).

19 After the limit value for nitrogen dioxide was first exceeded in 1999, a ban prohibiting heavy goods vehicles from travelling at night along a section of the A 12 motorway in the Inn valley, Austria, came into force on 1 October 2002.

20 For the year 2002, the annual limit value set at 55 µg/m 3 by the Immissionsschutzgesetz-Luft was exceeded at the measurement point at the Vomp service station on that section of motorway; the annual average there recorded was 61 µg/m 3 .

21 The ban on night driving, originally imposed for a limited period, was extended and then replaced, from 1 June 2003, by a permanent ban on night driving, applicable throughout the year, on the transport of goods by heavy goods vehicles weighing more than 7.5 tonnes.

22 On 27 May 2003, the Landeshauptmann von Tirol (First Minister of the Land of Tyrol), acting pursuant to the Immissionsschutzgesetz-Luft, adopted the contested regulation prohibiting, from 1 August 2003 and for an indefinite period, the use of a section, approximately 46 kilometres long, of the A 12 motorway in the Inn valley by a category of heavy goods vehicles carrying certain types of goods.

23 Paragraph 1 of the contested regulation states that the regulation is designed to reduce emissions linked to human activity and thus to improve air quality so as to ensure lasting protection for human health and for fauna and flora.

24 Paragraph 2 of the contest regulation delimits a clean zone consisting of a 46-kilometre section of the A 12 motorway in the Inn valley between the communes of Kundl and Ampass (Austria). Paragraph 3 of the contested regulation prohibits use of this section by heavy goods vehicles or articulated lorries with a maximum authorised weight in excess of 7.5 tonnes and heavy goods vehicles with trailers with a combined maximum authorised weight exceeding 7.5 tonnes carrying the following goods: all of the wastes listed in the European Waste Catalogue (referred to in Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3), as amended by Council Decision 2001/573/EC of 23 July 2001 amending Decision 2000/532/EC as regards the list of wastes (OJ 2001 L 203, p. 18)), cereals, logs, bark and cork, ferrous and non-ferrous ores, stones, soil, rubble, motor vehicles and trailers, or structural steel. It is not necessary for any authority to intervene by adopting a decision to bring the ban into force; it takes direct effect.

25 Paragraph 4 of the contested regulation exempts from the ban laid down in Paragraph 3 thereof heavy goods vehicles whose journeys start from or terminate in the territory of the City of Innsbruck or in the districts of Kufstein, Schwaz or Innsbruck-Land (Austria). The Immissionsschutzgesetz-Luft itself contains other exemptions. It directly excludes various categories of vehicle from the ban on driving, including inter alia motorway maintenance vehicles, refuse vehicles and agricultural and forestry vehicles. An individual exemption may be requested for other vehicles on grounds of public interest or significant individual interest.

Pre-litigation procedure

26 On 25 June 2003, following an initial exchange of correspondence with the Republic of Austria, the Commission sent that Member State a letter of formal notice and asked it to reply to it within a week. The Republic of Austria replied by letter of 3 July 2003.

27 By letter of 9 July 2003, the Commission sent the Republic of Austria a reasoned opinion under Article 226 EC, to which the Republic of Austria replied by letter of 18 July 2003.

Conditions for granting interim measures

28 Under Article 243 EC, the Court may lay down any necessary interim measures in cases brought before it.

29 Article 83(2) of the Rules of Procedure requires an application for such measures to state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for.

30 According to settled case-law, the judge hearing the application may grant the interim measures if it is established that such an order is justified prima facie in fact and in law and that such measures are urgent in that, in order to avoid serious and irreparable damage to the applicant's interests, they must be made and produce their effects before the decision is given in the main proceedings. The judge hearing the application may also, where appropriate, weigh up the competing interests (see the order in Case C-440/01 P(R) Commission v Artegodan [2002] ECR I-1489, paragraphs 58 and 59).

Prima facie case

Arguments of the parties

31 The Commission claims that the ban on driving manifestly hinders the freedom to provide services in the road haulage sector, which is guaranteed by the Treaty and enshrined in secondary legislation in Regulations No 881/92 and No 3118/93, and the free movement of goods within the meaning of Article 28 EC.

32 As a matter of fact the measure impacts, if not exclusively at least predominantly, on the international transit of the goods in question. It discriminates, at the very least indirectly, in a manner that is incompatible with Regulations No 881/92 and No 3118/93, and with Article 28 EC et seq. Such a measure, since it is discriminatory, cannot be justified on grounds of environmental protection and is, in any event, disproportionate.

33 The Federal Republic of Germany supports these pleas, adding that the contested regulation cannot be justified on the basis of Directives 96/62 and 1999/30 and that it infringes the principle of cooperation in good faith established in Article 10 EC and the principle of proportionality.

34 The Republic of Austria, it submits, cannot rely on Article 7 of Directive 96/62, since that provision requires that action plans be drawn up, permits the adoption only of interim measures and provides that the measures taken must have no significant negative effects on the environment in the other Member States, all of which are conditions that are not satisfied in the present case.

35 Furthermore, the contested regulation is inconsistent with Article 8 of Directive 96/62.

36 The Federal Republic of Germany also takes the view that the exceeding of the limit value for nitrogen dioxide on which the contested regulation is based was not established in accordance with the requirements of Annexes V and VI to Directive 1999/30.

37 Article 10 EC also required the Republic of Austria to liaise with others parties in good time before adopting such a radical measure as the sectoral ban on driving here in issue.

38 Furthermore, the measure imposed by the contested regulation is disproportionate, since there is no reason for it to target the transport of merchandise by heavy goods vehicles or certain goods in particular.

39 At the hearing, the Italian Republic, for its part, stressed the need to adopt this type of measure exclusively at Community level.

40 The Republic of Austria, by contrast, takes the view that the contested regulation is consistent with Community law.

41 The ban on driving was adopted in compliance with the rules of national law and the provisions of the Community directives on the protection of ambient air quality, in particular Articles 7 and 8 of Directive 96/62.

42 Furthermore, the contested regulation does not infringe Regulations No 881/92 and No 3118/93. Those regulations, it is submitted, do not grant the holder of a Community licence an unconditional right and do not release him from his obligation to observe the general transport requirements.

43 Moreover, the ban on driving in question is a necessary, non-discriminatory and proportionate measure.

44 The need for the measure is demonstrated merely by the finding that the limit values set for nitrogen dioxide for the year 2002 both in the Austrian legislation and in Directive 1999/30 were exceeded.

45 With regard to the lack of discrimination, the Republic of Austria points out that the ban on driving also affects national traffic. There are only few exceptions, which are justified by compelling reasons of public interest and also benefit foreign carriers.

46 In any event, even if it were considered to be indirectly discriminatory, the ban on driving is justifiable on grounds of the protection of human health and the environment.

47 The Commission's concerns regarding the catastrophic effects of this measure are groundless because, the Republic of Austria maintains, rail transport is an alternative method ─ feasible from both a technical and a financial point of view ─ for transporting the goods covered by the ban on driving.

Findings

48 Under Article 83(2) of the Rules of Procedure, an application for interim measures must state inter alia the pleas of fact and law establishing a prima facie case for the interim measures applied for.

49 In that regard, it is apparent from an initial examination of the information submitted by the parties that the contested regulation creates restrictions on the freedoms of movement provided for by the Treaty and secondary legislation, and there is no need at this stage to establish which specific Community provisions are involved.

50 The contested regulation imposes a total driving ban on a large category of carriers along a major road on one of the principal land transport links for trade between northern Europe and northern Italy.

51 After first examination, it cannot be ruled out that this obstacle may be indirectly discriminatory.

52 It is true that the contested regulation applies to all carriers, irrespective of their nationality, and that it therefore also penalises Austrian carriers who transport the goods referred to along the section of motorway concerned.

53 However, because of the type of transport referred to and the scope of the derogations provided for, the contested regulation may conceivably make carriers from Member States other than the Republic of Austria bear the greater part of the burden, without justification for that imbalance. Nevertheless, in order to assess that question it is necessary to examine in detail the impact of the contested regulation on the various categories of carrier, which is not possible at the stage of the present interlocutory proceedings. At the hearing, the various parties also presented figures in this connection which appear prima facie to be contradictory, and it has not been possible to determine whether they are relevant.

54 In addition to the issue of possible discrimination, the assessment of whether the Republic of Austria has infringed Community law also requires a detailed examination of the obstacle represented by the ban on driving.

55 Such an examination should take account of the aims of protecting health and/or the environment invoked by the Republic of Austria and, in particular, the extent to which the contested regulation forms part of the Community provisions on ambient air quality. That examination should also consider whether the obstacle created is proportionate in relation to those aims.

56 In that regard, it appears on first analysis that, as the Republic of Austria has argued, the contested regulation forms part of the national legislation adopted in order to meet the obligations under the Community directives on ambient air quality.

57 Furthermore, the fact that the limit value for nitrogen dioxide emissions was exceeded in 2002, which it is claimed was the reason for the adoption of the contesed regulation, has not been disputed by the various parties to the dispute.

58 It is not necessary, at this stage, to establish whether the contested regulation reflects considerations based on the protection of the environment and/or the protection of health; however, it appears that it must, as a rule, be acknowledged that requirements linked to considerations of such a kind prevail over economic considerations.

59 The stress placed by the Commission, in its application for interim relief, on the purely economic aspects of the situation cannot therefore be endorsed as such.

60 That being so, the ban on driving resulting from the contested regulation none the less raises serious questions concerning its compatibility with Community law.

61 First of all, as the Italian Republic points out, the contested regulation was adopted only a few months after the ban on night driving came into force, that is, before the effects of that measure on the concentration of nitrogen dioxide could be fully evaluated. Since the ban on night driving did not come into force until 1 October 2002, it was not possible to assess the measure's actual impact on the basis of the annual average of nitrogen dioxide for 2002.

62 Second, the short period between adoption and entry into force of the contested regulation may significantly reinforce its negative effects on the activity and organisation of the carriers concerned. A two-month period appears very short for putting in place structural adaptations, in terms of methods of transport or journeys, which the ban on driving makes necessary. In particular, even though the Republic of Austria has been able to submit some evidence to show that an increase in the availability of rail transport over the route concerned is feasible, it is apparent from all the information presented by the parties that such an adjustment could be achieved only in the medium term and in stages.

63 Lastly, as the Commission and the interveners have pointed out, measures directly affecting the transport of goods between Member States appear to call for a degree of prior coordination at Community level, which does not seem to have taken place in this case.

64 A definitive assessment of all these arguments, which raises the delicate question of the balance to be established between the requirements of the internal market and the protection of health and/or the environment, requires a more thorough examination, which cannot be carried out at the stage of the present interlocutory proceedings.

65 In those circumstances, and without its being necessary, at this stage, to rule any further on the various pleas raised in the main proceedings, it cannot directly be held that the main action is not well founded, even though, on the other hand, the arguments put forward by the Republic of Austria in its defence cannot be disregarded.

66 It is therefore necessary to examine further the application for interim relief by ascertaining whether the requested measure is urgent in that it is necessary, in order to avoid serious and irreparable harm to the interests invoked by the Commission, that it should be granted and produce its effects before the decision is given in the main proceedings and, if so, to weigh up the interests at stake.

Urgency and balancing of interests

Arguments of the parties

67 With regard to urgency, the Commission, supported by the interveners, argues that the contested regulation, which was to come into force on 1 August 2003, would have direct and significant effects on the activity of haulage undertakings operating in the market concerned and, more generally, on the proper working of the internal market.

68 According to the Commission, the case serves as an example with regard to public policy, because other Austrian Länder which have heavy transit traffic have already indicated that they intend to follow the Tyrol's example and were considering the adoption of similar provisions. It is also conceivable that Member States other than the Republic of Austria may contemplate measures of this kind.

69 Furthermore, the ban on driving in this case would directly affect the logistical network of the traders dealing with the goods concerned. Having been adopted unilaterally and without advance notice, it would cause a sudden and fundamental change in the existing conditions of the Community market in the carriage of goods which, according to the Commission, could not be fully restored. The first to suffer would be the weakest links in the production chain, namely, the road haulage undertakings, especially small undertakings which, owing to the size of their fleets of vehicles, have specialised in the transportation of a single type of goods. More than half the haulage undertakings have only between one and three lorries and 31% only between four and ten lorries.

70 For undertakings specialising in the transport of certain goods (for example, the transport of new cars or of waste), and using special vehicles for that purpose, the sectoral ban on driving would be tantamount to a general ban because they could not very easily switch in the short term to transporting other types of goods.

71 In most of the Member States, above all in Germany, the road transport sector suffers from overcapacity, which explains the keen competition between undertakings and the low profit margins. Only undertakings which manage to keep their fleets in constant use are competitive. It is therefore essential for haulage undertakings not to lose orders in progress and existing customers. A few days' wait might even mean financial ruin for undertakings with a limited number of vehicles.

72 According to the Federal Republic of Germany, every year about 53 700 trips between Germany and Italy would be affected by the ban on driving here in issue. It would therefore have serious consequences for the undertakings concerned, as is demonstrated by the declarations made by a number of them. Those consequences would be all the greater because they would also affect the organisation of the round trips made by heavy goods vehicles in order not to travel empty.

73 Moreover, according to the Commission and the interveners, there is no adequate alternative solution.

74 The haulage undertakings concerned would, in fact, have only two possible ways of avoiding the ban on driving, namely, to choose a bypass route or use rail transport.

75 However, bypass routes would involve a considerable increase in the length and duration of journeys and therefore a significant additional cost as well as higher fuel consumption and worse pollution.

76 As for switching to rail transport, the road haulage companies could only use the rolling highway ( Rollende Strasse). Transportation by goods wagons is not one of their activities and the combined transportation of unaccompanied goods is ruled out for most small and medium-sized undertakings, which do not have the means of recovering the container or trailer at the point of destination. The present availability of trains on the rolling highway is insufficient, which means a costly loss of time. The Federal Republic of Germany dwells in particular on the fact that it is possible to achieve an adequate increase in the availability of rail transport only in the medium term. It also points out that the rolling highway is often too inflexible because there is a provisional 48-hour booking period which is not financially interesting for regional transportation over short distances. In addition to these aspects, the Italian Republic stresses the markedly higher cost of rail transport.

77 Whatever approach they took, the undertakings concerned would face additional costs and lose time if they are not to be forced to cease their activities altogether. In view of the low value of the goods affected by the ban on driving and the keen competition in the road haulage sector, those additional costs could not be passed directly on to those placing orders or the customers but would have to be borne by the carriers, at least initially. However, the Commission maintains that only large undertakings would be able to offset additional costs on a route, in this case the Brenner route through Austria. Small undertakings specialising in the transport of the goods covered by the ban on driving would not be able to bear those additional costs immediately and would lose their orders and clients. The Commission submits that since, as has already been stated, most small undertakings specialise, it is to be feared that many of them would not be able to receive replacement orders in the short term and would be forced to leave their vehicles idle.

78 In conclusion, in the light of the small profit margins of road haulage undertakings, the small and medium-sized undertakings affected might be forced to cease operating. This harm would weigh heavily on the European economy and might be irreparable.

79 The Federal Republic of Germany refers to evidence indicating that the annual loss in turnover for the undertakings concerned would be about EUR 54 million, without counting the relocations of undertakings. That would involve the loss of hundreds of jobs and the winding-up of dozens of undertakings.

80 Furthermore, the Commission and the Italian Republic argue that the ban on driving would affect not only the transport sector but also production industries, especially the timber industry and the quarries in northern Italy. According to the Federal Republic of Germany, the loaders' regular financial relations would also be jeopardised and the ban on driving might finally lead to a cessation of trade between Italy and Germany for certain goods affected by the ban.

81 The balance of interests leans in favour of the application, since less restrictive measures are possible, such as a ban on the driving of those lorries which create the most pollution.

82 So far as concerns the environmental interests invoked by the Republic of Austria, the Commission points out that, unlike the tangible financial repercussions of the ban on driving, the potential harm to the environment in the Inn valley if the ban on driving is applied is not quantifiable. The Federal Republic of Germany points out, for its part, that the contested regulation, far from resolving the problem of nitrogen dioxide emissions, only moves it towards other areas in Austria or towards other Member States and Switzerland. Furthermore, the Italian Republic maintains that, in order to assess the scope of the environmental problems invoked, it is necessary first to assess the beneficial effects on the ban on night driving introduced in October 2002, something which would not be possible until the end of 2003.

83 In its observations, the Republic of Austria refutes the argument that application of the contested regulation will cause serious and irreparable damage.

84 First of all, the Republic of Austria formally denies that Austrian Länder other than the Tyrol intend following the example of this regulation. As far as it knows, no other Member State has that intention either, so that the contagious effect referred to by the Commission does not exist.

85 Also, in view of the period between the adoption of the contested regulation in May 2003 and its entry into force on 1 August 2003, the persons concerned had a sufficiently long transitional period.

86 The Republic of Austria further argues that the disadvantages of a ban on driving for carriers form part of the risks connected with any market economy and that, for the rest, the change to rail is possible both technically and financially. With regard to the technical aspects, the Republic of Austria complains that the Commission has failed to consider the opportunities for changing to transport by full goods wagons and combined transport of unaccompanied goods. For the rest, rail capacity is already adequate, while, if it were technically impossible, an application could be made for exemption on a case-by-case basis under the Austrian legislation. Financially, the cost and duration of rail transport are comparable to those of road transport.

87 Contrary to the Commission's claims, routes other than those passing along the section of the motorway in question could also be used by road carriers. In that connection, the Republic of Austria stresses the fact that, at present, much of the flow of heavy goods vehicles traveling along this section is the result of the choice made by the carriers concerned not to follow the shortest route, which would take them through Switzerland.

88 The Republic of Austria also claims that the impact of the ban on driving would be relatively limited for the road haulage undertakings. In view of the significant financial resources which they ought to have under the Community legislation, the risk of cessation of activities is slight. Similarly, the Commission has not adduced persuasive evidence of actual damage to production industries, notably the Italian timber industry.

89 Finally, with regard to the balancing of interests, the Republic of Austria stresses the extent of the damage to health and the environment which is demonstrated by the exceeding of the limit values laid down by Directive 96/62 and by numerous international studies. These fundamental interests prevail over economic interests, which concern only the protection of the road haulage sector.

Findings

90 In order to establish the need to adopt interim measures and to determine their scope, it is necessary to balance the interests at stake, since the threat of serious and irreparable harm ─ the criterion for the alleged urgency ─ is one of the terms of the comparison made in this connection.

91 The interests invoked by the Republic of Austria are linked to considerations based on the protection of the environment and of health.

92 Harm caused to such interests is generally irreversible since, more often than not, damage to the environment or to health cannot, by reason of its nature, be eliminated retroactively.

93 Moreover, factual evidence apparently confirming that damage has been presented in these interlocutory proceedings.

94 That being so, it is apparent from the Community legislation on the protection of air quality, in particular the European Community programme of policy and action in relation to the environment and sustainable development (OJ 1993 C 138, p. 5), that the policy on ambient air quality is determined at Community level on the basis of long-term objectives.

95 In the present case, the current situation as regards ambient air pollution in the area in question is the outcome of a gradual process and can only, it appears on first analysis, be satisfactorily addressed in stages over the medium term.

96 In that connection, structural measures will probably be necessary and all parties to the present proceedings for interim measures have a duty, in varying degrees, to contribute to the search for the most appropriate solutions. The solutions which may emerge will necessarily represent a compromise between conflicting interests, and it cannot a priori be ruled out that they may give rise to certain disadvantages both for the functioning of the internal market and for the interests of some groups of Community traders.

97 In those circumstances, while recognising that the contested regulation may in the short term help improve ambient air quality in the area in question, the President of the Court finds that a structural approach over the medium term, which is essential, would not be jeopardised by the temporary non-application of the regulation.

98 In other words, it does not appear that, if the Court were to dismiss the application brought by the Commission, the non-application of the contested regulation during a limited period preceding the decision in the main proceedings would endanger in the longer term the protection of ambient air quality in the area concerned.

99 On the other hand, the seriousness of the damage which would be caused by the immediate entry into force on the ban on driving, and the difficulty in repairing that damage, cannot be underestimated. It appears that, owing to its scope and unilateral nature, that ban would significantly affect the operation and economic and financial stability of many Community undertakings.

100 The material submitted, in particular by the interveners, shows that the ban on driving would indeed have a significant economic effect on many haulage undertakings, in particular small undertakings specialising in the transport of the goods covered by the driving ban.

101 That harm is not limited to the aggregation of adverse financial consequences for the various undertakings. There is conclusive evidence of a significant risk that the ban on driving would force many undertakings to close permanently and that a structural and, to a certain extent, irreversible change in conditions of transport and trade flows of goods within and across the area in question would occur.

102 In those circumstances, the risk of serious and irreparable damage following the immediate application of the contested regulation must be regarded as having been sufficiently established.

103 In the light of the appraisal criteria which have been brought to the attention of the President of the Court, it therefore appears necessary to adopt such interim measures as will make it possible to preserve the interests at stake as far as possible in the short term. During that period, greater weight must be given to the interests facing the most immediate and irreversible threat, namely those invoked by the Commission.

104 It therefore appears appropriate to extend for a limited period the instruction issued to the Republic of Austria to suspend enforcement of the sectoral ban on driving provided for in the contested regulation.

105 Nevertheless, given the significant ambient air quality problems in the area concerned, 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.

106 Failing that, the parties are requested 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 driving 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 6 February 2004 at the latest.

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

108 In the light of these considerations, the interim measure laid down in the aforementioned order of 30 July 2003 should be extended until 30 April 2004.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1. The Republic of Austria shall suspend until 30 April 2004 enforcement of the sectoral ban on driving provided for in the Verordnung des Landeshauptmanns von Tirol, mit der auf der A 12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot) (Regulation adopted by the First Minister of the Land of Tyrol limiting use of the A 12 motorway in the Inn valley (sectoral ban on driving)) of 27 May 2003.

2. Costs are reserved.

Luxembourg, 2 October 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1 – Language of the case: German. Top

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