1.

The request for a preliminary ruling made by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) arises in the context of a dispute between the managing director of a Turkish haulage company and an Austrian administrative authority which fined him for engaging in the commercial carriage of goods from Turkey to Germany, through Austria, without having the authorisation required for that purpose.

2.

Under the Austrian legislation, the international commercial carriage of goods by road to, through or from Austrian territory may be carried out only under an authorisation. For hauliers established in Turkey (‘Turkish hauliers’), that authorisation may take the form of either an authorisation issued as part of a quota established pursuant to the bilateral agreement concluded between the Republic of Austria and the Republic of Turkey on road transport ( 2 ) (‘the Austria-Turkey road transport agreement’) or an individual permit issued for a single transport of substantial public interest. Such a permit is issued only where the applicant sufficiently demonstrates that the journey cannot be avoided by logistical measures or by the choice of a different means of transport.

3.

The referring court asks, in essence, whether the Austrian authorisation scheme established for Turkish hauliers complies with the provisions governing the Association between the European Economic Community and Turkey (‘the EEC-Turkey Association’), in particular the provisions laid down by the Agreement establishing an Association between the European Economic Community and Turkey ( 3 ) (‘the EEC-Turkey Association Agreement’), the Additional Protocol to the EEC-Turkey Association Agreement ( 4 ) (‘the Additional Protocol’) and Decision No 1/95 of the EC-Turkey Association Council ( 5 ) (‘Decision No 1/95 of the Association Council’).

4.

The referring court asks, first of all, whether the applicant in the main proceedings can rely on the provisions relating to the free movement of goods between the European Union and Turkey in support of a claim that the Austrian authorisation scheme constitutes a measure having an effect equivalent to quantitative restrictions for the purposes of Article 5 of Decision No 1/95 of the Association Council, or whether that scheme is concerned rather with the provision of transport services. The referring court also asks whether the Austrian authorisation scheme discriminates against Turkish hauliers, in breach of Article 9 of the EEC-Turkey Association Agreement.

5.

In this Opinion, I shall explain the reasons why I consider, first, that the Austrian legislation at issue falls within the field of transport services and, secondly, that the provisions governing the EEC-Turkey Association do not preclude such legislation, provided that the referring court is satisfied that that legislation does not entail a new restriction on the freedom to provide services for the purposes of Article 41(1) of the Additional Protocol.

6.

Under Article 9 of the EEC-Turkey Association Agreement, ‘the Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community’.

7.

Article 10 of the agreement provides:

‘1.   The customs union provided for in Article 2(2) of this Agreement shall cover all trade in goods.

2.   The customs union shall involve:

…’

8.

Under Article 14 of the agreement, ‘the Contracting Parties agree to be guided by Articles 55, 56 and 58 to 65 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom to provide services between them’.

9.

Article 15 of the agreement provides that ‘the rules and conditions for extension to Turkey of the transport provisions contained in the Treaty establishing the Community and measures adopted in implementation of those provisions shall be laid down with due regard to the geographical situation of Turkey’.

10.

Article 41 of the Additional Protocol, contained in Chapter II of Title II, ‘Right of establishment, services and transport’, provides as follows:

‘1.   The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.

2.   The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services.

The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade.’

11.

Article 42, contained in the same chapter of the Additional Protocol, provides:

‘1.   The Council of Association shall extend to Turkey, in accordance with the rules which it shall determine, the transport provisions of the Treaty establishing the Community with due regard to the geographical situation of Turkey. In the same way it may extend to Turkey measures taken by the Community in applying those provisions in respect of transport by rail, road and inland waterway.

…’

12.

According to Article 1 of Decision No 1/95 of the Association Council, ‘without prejudice to the provisions of the Ankara Agreement, its Additional and Supplementary Protocols, the Association Council hereby lays down the rules for implementing the final phase of the Customs Union, laid down in Articles 2 and 5 of the abovementioned Agreement’.

13.

Article 5 of Decision No 1/95 of the Association Council, contained in Chapter I, Section II, entitled ‘Elimination of quantitative restrictions or measures having equivalent effect’, provides:

‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between the Parties.’

14.

According to Article 7, ‘the provisions of Articles 5 and 6 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Parties’.

15.

According to Paragraph 1 of the Güterbeförderungsgesetz (Law on the transport of goods) of 1995 (BGBl. 593/1995, in the version published in BGBl. 96/2013, ‘the GütbefG’), that law applies in particular to ‘the commercial carriage of goods by road motor vehicles or such vehicles with trailers, where the sum of the maximum authorised gross weights exceeds a total of 3500 kg, effected by transport undertakings’.

16.

Paragraph 2 of the GütbefG, ‘Licence obligation and types of licences’, provides:

‘(1)   The commercial carriage of goods by motor vehicles may be carried on only on the basis of a licence, unless provided otherwise by this Federal Law (Paragraph 4) …’

17.

Paragraph 7 of the GütbefG, ‘Cross-border transport’, provides:

‘(1)   Commercial carriage of goods by motor vehicles from places outside Federal territory into Federal territory or through Federal territory, or from places within Federal territory to places abroad, shall be permitted, in addition to holders of licences under Paragraph 2, to operators who, in accordance with the rules in force in the State in which their undertaking is located, are entitled to transport goods by motor vehicles and are holders of one of the following authorisations:

18.

Paragraph 8 of the GütbefG, entitled ‘Obtaining of authorisations’, provides:

‘(1)   A permit under Paragraph 7(1)(3) shall be granted for individual transports of goods. A permit is to be granted only if there is a substantial public interest therein. The applicant must show credibly that the journey cannot be avoided either by organisational measures or by the choice of another means of transport. A permit is to be refused if (in view in particular of the transport facilities already existing in Federal territory) there is no need for the transport of goods applied for. The transport and economic interests of Austria, the protection of the population and the environment, and the possibility of carrying out the transport of goods by way of other transport facilities are to be taken into account …

(3)   On the basis of this Federal Law, agreements may be concluded on the cross-border carriage of goods in accordance with Paragraph 7 if the volume of goods traffic between States requires this. Provision is to be made in the agreements that motor vehicles with foreign number plates may carry out journeys into, through and out of Austria on a reciprocal basis. Quotas may also be laid down between States, in defining the extent of which the transport and economic interests of Austria and the protection of the population and the environment are to be taken into account …

(4)   The agreed quotas are to be issued in a simplified procedure. The competent authority can issue confirmations that the conditions laid down in the agreement, in particular compliance with the agreed quota, are satisfied (quota authorisation). …’

19.

Paragraph 9 of the GütbefG provides:

‘(1)   The operator must ensure that the documents evidencing the authorisations mentioned in Paragraph 7(1) are, in the case of the cross-border carriage of goods, carried throughout the journey, fully completed and if necessary endorsed.

(2)   The driver must, during every cross-border carriage of goods, carry in the vehicle throughout the journey the documents evidencing the authorisations mentioned in Paragraph 7(1), fully completed and if necessary endorsed, and produce them on demand to the supervisory authorities.

…’

20.

Paragraph 23 of the GütbefG, entitled ‘Penalties’, states:

‘(1)   … an administrative offence punishable by a penalty of up to EUR 7267 shall be committed by a person who, as an operator,

…

(3)   carries out transports under Paragraphs 7 to 9 without the required authorisation or does not comply with requirements or prohibitions in international agreements;

…’

21.

According to Article 4(1) of the Austria-Turkey road transport agreement, ‘for motor vehicles, including trailers, registered in one of the two States and used for the carriage of goods between those States or in transit between the two States, a pass shall be required’. Article 4(2) provides that ‘no pass shall be required for empty journeys and for vehicles with a payload of up to two tonnes’.

22.

Article 6 of that agreement provides:

‘1.   The passes shall be issued to transport operators. They shall authorise the carriage of goods by motor vehicles including trailers.

2.   A pass of one State shall authorise the carrying out of transports to and from the other State and transit through that State.

3.   Passes must be carried in the vehicle during the journey through the territory of the State for which the pass is valid, and are to be produced to the competent supervisory authorities of that State on demand.’

23.

Article 7 of that agreement provides:

‘1.   The passes shall be issued by the competent authorities of the State in which the vehicle is registered on behalf of the competent authority of the other State, within the limits of the quota determined by agreement by 30 November of each year for the following year by the competent authorities of the two States.

2.   The competent authorities of the two States shall exchange the necessary number of forms for the carriage of goods under this Agreement.’

24.

CX is the managing director of FU, a company which is established in Turkey and is engaged in the commercial carriage of goods.

25.

By decision of 17 March 2015 the Bezirkshauptmannschaft Schärding (Schärding district authority) fined CX the amount of EUR 1453 (or the alternative penalty of a term of imprisonment of 67 hours) because on 2 April 2015 FU undertook the commercial carriage of goods (textiles) from Turkey to Germany, through Austria, without having the permit required for that purpose.

26.

CX challenged that decision before the Landesverwaltungsgericht Oberösterreich (Regional Administrative Court, Upper Austria, Austria). By judgment of 28 December 2015, that court dismissed the action on the ground that CX had infringed Paragraph 23(1)(3) and Paragraph 7(1)(4) of the GütbefG in conjunction with Article 4(1) and Articles 6 and 7 of the Austria-Turkey road transport agreement, since the driver of the vehicle was unable to produce the permit required for the international carriage of goods between Austria and Turkey.

27.

CX brought an appeal against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court).

28.

By decision of 22 November 2016, received at the Court on 7 December 2016, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does EU law, in particular the [EEC-Turkey Association] Agreement, the Additional Protocol … and Decision No 1/95 of the … Association Council …, preclude national legislation under which goods transport operators established in [the Republic of] Turkey may carry out the cross-border commercial carriage of goods by motor vehicles to or through the territory of the Republic of Austria only if they have passes for the motor vehicles issued as part of a quota established between [the Republic of] Austria and [the Republic of] Turkey on the basis of a bilateral agreement, or if they are granted authorisation for the individual carriage of goods, in which case there must be a significant public interest in the individual carriage of goods and the applicant must show credibly that the journey cannot be avoided by organisational measures or by the choice of a different means of transport?’

29.

Written observations were submitted by CX, the Austrian and Hungarian Governments and the European Commission. Each of those parties was represented at the hearing on 31 January 2018.

30.

Under the Austrian legislation at issue, the international commercial carriage of goods by road to, through or from Austrian territory may be carried out only under an authorisation. For hauliers established in an EU Member State, that authorisation may take the form of a Community licence issued in accordance with Regulation No 1072/2009. ( 7 ) For hauliers established in a third country, including Turkey, that authorisation may, by contrast, take one of the following two forms.

31.

First, in accordance with Paragraph 7(1)(4) of the GütbefG, hauliers established in a third country may be granted an authorisation issued under an international agreement. With regard to Turkish hauliers, the Austria-Turkey road transport agreement provides for an annual carriage quota to be established between the competent authorities of the two States. ( 8 ) Those authorisations are granted to Turkish hauliers by the competent Turkish authorities within the limits of the quota established. In that regard, the Austrian Government states that the Republic of Austria and the Republic of Turkey have at present agreed an annual quota of 21000 authorisations (basic quota), ( 9 ) to which is added a variable number of authorisations by way of recompense ( 10 ) and the authorisations granted in the context of the European Conference of Ministers of Transport (ECMT) (‘ECMT authorisation’). ( 11 ) In total, Turkey carries out approximately 90000 to 100000 road transit operations per year through Austria.

32.

Secondly, Turkish hauliers can apply for a licence under Paragraph 7(1)(3) and Paragraph 8(1) of the GütbefG (‘individual licence’). That licence is issued only for a single transport of substantial public interest provided that the applicant sufficiently demonstrates that the journey cannot be avoided by logistical measures or by the choice of a different means of transport. ( 12 )

33.

By its question, the referring court asks, in essence, whether the Austrian authorisation scheme put in place for Turkish hauliers is compatible with the provisions governing the EEC-Turkey Association.

34.

CX argues that it is not. First, that scheme restricts the free movement of goods between the European Union and Turkey, in breach of Article 5 of Decision No 1/95 of the Association Council, by allowing transit by only a limited number of Turkish hauliers. The quota established for Turkish hauliers is insufficient. Consequently, those hauliers are obliged to use the ‘Rollende Landstraße’ (highway on rails), ( 13 ) which entails additional costs and prolongs the transport time by comparison with road transport. ( 14 ) This means that goods from Turkey are made more expensive and are ultimately less competitive. The quota restrictions relating to the carriage of goods therefore have significant economic effects for the manufacturers and buyers of those goods and undermine the effectiveness of the Customs Union. Secondly, the Austrian scheme of quotas for the carriage of goods results in discrimination against Turkish hauliers, in breach of Article 9 of the EEC-Turkey Association Agreement, since the quota restrictions are not applicable to EU hauliers.

35.

The referring court asks, first of all, whether CX can rely on the free movement of goods between the European Union and Turkey, even though FU is a road haulage undertaking which does not itself manufacture the goods it carries, and whether CX may argue, in particular, that the conditions which are applicable to FU for the granting of the authorisation required by the GütbefG constitute a measure having an effect equivalent to quantitative restrictions for the purposes of Article 5 of Decision No 1/95 of the Association Council. The referring court considers, at this point, that the present case should not be examined from the perspective of the free movement of goods, since, in its view, the EEC-Turkey Association Agreement regards the free movement of goods, the freedom to provide services and the transport sector as separate areas, which the Association is required to implement to varying degrees and according to different timetables. There are serious reasons to think that the field of transport was to be intentionally excluded and not implemented via the free movement of goods. ( 15 )

36.

Should the Court consider that CX can rely on the free movement of goods in support of a claim that the Austrian legislation at issue results in a restriction of that freedom or, at the very least, discrimination against Turkish nationals within the meaning of Article 9 of the EEC-Turkey Association Agreement, there then arises, according to the referring court, the question whether that restriction is justified under Article 7 of Decision No 1/95 of the Association Council.

37.

In the following analysis, I shall first address the question of the classification of the Austrian legislation at issue in the light of the provisions governing the EEC-Turkey Association. In that regard, I shall explain the reasons why, like the Austrian and Hungarian Governments and the Commission, I consider that such legislation falls within the field of transport services and that the provisions of Decision No 1/95 of the Association Council concerning the free movement of goods between the European Union and Turkey are not applicable to such legislation (Section B.1). Secondly, I shall reject the opposing arguments put forward by CX concerning the case-law of the Court on the free movement of goods (Section B.2). Thirdly, I shall examine the legislation at issue in the light of the standstill clause in Article 41(1) of the Additional Protocol, which prohibits the introduction of new restrictions on the freedom to provide services (Section B.3). Lastly, I shall briefly address the issue of possible discrimination against Turkish hauliers for the purposes of Article 9 of the EEC-Turkey Association Agreement (Section B.4).

38.

The question referred by the Verwaltungsgerichtshof (Supreme Administrative Court) raises, first of all, an issue relating to the classification of the legislation at issue in the light of the provisions governing the EEC-Turkey Association. ( 16 ) Does such legislation fall under the provisions relating to the free movement of goods between the European Union and Turkey or rather those relating to the provision of transport services?

39.

Like the Austrian and Hungarian Governments and the Commission, I am inclined to favour the second possibility.

40.

In that regard, I rely on the following considerations.

41.

First, it must be borne in mind that, within the framework of the EEC-Turkey Association, the free movement of goods, the freedom to provide services and transport constitute separate areas which are subject to different rules. ( 17 ) Those rules reflect varying degrees of liberalisation of the markets concerned. While the free movement of goods between the European Union and Turkey is guaranteed in particular by the provisions of Decision No 1/95 of the Association Council concerning the Customs Union, ( 18 ) the fields of services and transport remain, at the current stage of development of the EEC-Turkey Association, for the most part non-liberalised. ( 19 )

42.

As regards, in particular, the field of transport, Article 15 of the EEC-Turkey Association Agreement provides that ‘the rules and conditions for extension to Turkey of the transport provisions contained in the Treaty establishing the Community and measures adopted in implementation of those provisions are to be laid down with due regard to the geographical situation of Turkey’. Moreover, Article 42 of the Additional Protocol provides that the Council of Association is to extend to Turkey, in accordance with the rules which it is to determine, the transport provisions of the Treaty establishing the Community with due regard to the geographical situation of Turkey and that in the same way it may extend to Turkey measures taken by the Community in applying those provisions, in particular, in respect of transport by road.

43.

However, it should be noted that, to date, the Association Council has not determined any rules to that end. At the current stage of development of the EEC-Turkey Association, there are therefore no specific rules in the field of transport. ( 20 )

44.

Secondly, as regards the question of whether the national legislation falls within the scope of one or other of the freedoms of movement, it is necessary, in accordance with the settled case-law, to take into consideration the purpose of the legislation at issue. ( 21 ) I consider that this also applies, by analogy, to the classification of national legislation in the light of the provisions governing the EEC-Turkey Association.

45.

As far as the Austrian legislation at issue in the main proceedings is concerned, I consider that it is essentially intended to determine the preconditions for undertaking the international commercial carriage of goods by road to, through or from Austrian territory. ( 22 ) In that regard, that legislation provides in particular that such carriage may be undertaken only under an authorisation which, for Turkish hauliers, may take the form of either an authorisation issued as part of a quota established pursuant to the Austria-Turkey road transport agreement or an individual licence issued where carriage is of substantial public interest. ( 23 ) In other words, the Austrian legislation at issue imposes restrictions on the access of Turkish hauliers to the international road haulage market.

46.

There is no doubt in my mind that such legislation falls within the scope of transport services.

47.

First, it is apparent from the case-law of the Court that, under the general scheme of the Treaty, the freedom to transport goods by road belongs to the sphere of the provision of services in the field of transport. ( 24 ) I see no reason for it to be otherwise in the context of the provisions relating to the EEC-Turkey Association.

48.

Secondly, it should be noted that, previously, the international carriage of goods by road between Member States was subject to authorisation schemes similar to that now established by the Austrian legislation at issue with respect to Turkish hauliers. Those schemes were based, in part, on bilateral quotas between Member States and, in part, on Community quotas. ( 25 )

49.

In Parliament v Council, ( 26 ) the Court found that the Council had failed to fulfil its obligations under Article 75 of the EEC Treaty (now Article 91 TFEU), in particular by failing to ensure freedom to provide services in the sphere of international transport. Following that judgment, the bilateral and Community quotas were phased out before being replaced, with effect from 1 January 1993, by the quota-free Community licence system currently in force. ( 27 ) The measures relating to the Community quota and the Community licence were adopted under the provisions of the Treaty relating to the common transport policy. ( 28 )

50.

Those developments in the legislation and case-law concerning international carriage between Member States confirm, in my view, the conclusion that national legislation, such as that at issue, which establishes a system of authorisation for the international carriage of goods by road must be classified as a measure in the field of transport services.

51.

In that context, I consider that the judgment of the Court in Lambregts Transportbedrijf ( 29 ) deserves particular attention. In that judgment, the Court ruled that Article 75(1)(a) and (b) of the EEC Treaty (now Article 91(1)(a) and (b) TFEU), concerning the implementation by the Council of the common transport policy, does not create individual rights on which nationals of the Member States may rely in proceedings before national courts with regard to decisions adopted by national authorities in 1982. In other words, the Court has held that that provision does not have direct effect allowing a haulier established in a Member State to rely on it to challenge a national administrative decision relating to national and international carriage authorisations.

52.

In that regard, the Court found, in paragraph 14 of the judgment, that ‘in 1982, freedom to provide services in the field of international transport was … ensured only within, from or to the Member State in which the undertaking was established and was subject to the issue of a transport licence under the bilateral or Community quotas for the Member State concerned’. ( 30 ) The Court thus considered that, in the absence of implementation by the Council of the principle of the freedom to provide services in the field of international and national transport in accordance with its obligations under Article 75(1)(a) and (b) of the EEC Treaty, such services could only be provided within the limits of the bilateral and Community quotas. In that context, the Court did not carry out any examination of the possible effect of those quotas on the free movement of goods.

53.

I consider that the same reasoning applies a fortiori to international carriage by Turkish hauliers within the framework of the EEC-Turkey Association. In that regard it must be taken into account that, while Article 75(1)(a) and (b) of the EEC Treaty imposed on the Council an obligation to introduce a common transport policy, ( 31 ) it is clear from the case-law of the Court that the extension to the Republic of Turkey of the Treaty provisions in the field of transport is only optional. ( 32 ) In that context, the Court found that the Association Council ‘enjoys a considerably wider discretion in the field of transport’. ( 33 ) On that basis, I consider that, if the Court did not apply Article 30 of the EEC Treaty (now Article 34 TFEU) in Lambregts Transportbedrijf, ( 34 ) there is a fortiori no need to apply Article 5 of Decision No 1/95 of the Association Council in the present case.

54.

It follows, in my view, that as long as the Association Council has not adopted rules on transport under Article 15 of the EEC-Turkey Association Agreement and Article 42 of the Additional Protocol, ( 35 ) the access of Turkish hauliers to the international haulage market remains subject to the conditions laid down in the national legislation of Member States and in the bilateral agreements concluded between Member States and the Republic of Turkey. ( 36 ) In that regard, the number of transport authorisations granted to Turkish hauliers depends, in particular, on negotiations between the States concerned in the context of such agreements. I would like to point out that most Member States have established, on the basis of the bilateral agreements that they have concluded with the Republic of Turkey, transport authorisation schemes which have similarities with that at issue in the main proceedings. ( 37 )

55.

It is solely for the Contracting Parties to decide whether to liberalise the field of transport services within the context of the EEC-Turkey Association, should they consider it appropriate, following a thorough analysis of the practical implications which that operation is likely to have, in particular with regard to conditions of competition in the international haulage market. In that context, the gradual liberalisation of international carriage between the Member States shows that such liberalisation must be accompanied by the establishment of common rules, particularly in the field of transport. ( 38 )

56.

In those circumstances, I consider that the application by the Court of the provisions concerning the free movement of goods between the European Union and Turkey to legislation such as that at issue in the main proceedings might lead to a degree of liberalisation in the field of international transport ( 39 ) which is not yet intended by the Contracting Parties to the EEC-Turkey Association Agreement.

57.

Having regard to all the foregoing considerations, I conclude that legislation such as that at issue in the main proceedings falls within the field of transport services and that the provisions laid down in Decision No 1/95 of the Association Council on the free movement of goods between the European Union and Turkey are not applicable to such legislation.

58.

That conclusion cannot be called into question by the arguments put forward by CX concerning the case-law of the Court on the free movement of goods. I shall address those arguments below.

59.

In support of his argument that the provisions relating to the free movement of goods between the European Union and Turkey apply to legislation such as that at issue, CX relies on a number of judgments of the Court relating to that freedom.

60.

In the first place, CX relies on the judgment in Istanbul Lojistik. ( 40 ) In that judgment, the Court found that a tax on motor vehicles which had to be paid by persons operating heavy goods vehicles registered in Turkey and in transit through Hungarian territory constituted a charge having equivalent effect to a customs duty within the meaning of Article 4 of Decision No 1/95 of the Association Council. ( 41 )

61.

According to CX, if the Hungarian transit tax is an obstacle to the free movement of goods, the same must apply to the Austrian legislation at issue, since the carriage quota system provided for by that legislation constitutes a greater restriction on the free movement of goods than does a transit tax.

62.

That argument does not convince me.

63.

In my view, the Austrian legislation at issue is not comparable to that at issue in Istanbul Lojistik. First, the two pieces of legislation are distinguished by their nature. Istanbul Lojistik was concerned with a fiscal measure (a tax), whereas the present case concerns a quota.

64.

Secondly, they also differ in their purpose. In Istanbul Lojistik, the Court held that ‘even though the motor vehicle tax is not levied on products as such, it is imposed on the goods transported by vehicles registered in a third country, in particular Turkey, when they cross the Hungarian border, and not … on the transport service’. ( 42 ) By contrast, the Austrian legislation at issue in the present case is, as I have already explained, specifically intended to determine the preconditions for the provision of transport services. ( 43 ) I would point out that, in the Istanbul Lojistik case, the Court confined itself to examining the tax as such and did not examine the quota system to which that tax was linked. ( 44 )

65.

In the second place, CX relies on a series of judgments in which, according to CX, the Court acknowledged the link between road haulage and the free movement of goods within the European Union. In the judgments concerned, the Court held that a measure prohibiting lorries of over 7.5 tonnes carrying certain goods from using a section of a motorway constituting one of the main routes of land communication in the region concerned ( 45 ) is a measure having an effect equivalent to a quantitative restriction for the purposes of Article 34 TFEU, as is legislation laying down short maximum journey times and distances for the transport of animals for slaughter. ( 46 )

66.

According to CX, it follows from that case-law that legislation such as that at issue in the main proceedings, although technically linked to the carriage of goods, necessarily restricts the movement of goods, by permitting free transit by only a limited number of hauliers and thereby directing trade flows towards alternative routes or means of transport which entail additional time and expenditure. ( 47 )

67.

That argument cannot succeed.

68.

It must be noted that the case-law relied on by CX concerned national legislation of a nature very different to that of the Austrian legislation at issue in the present case.

69.

First, the legislation at issue related not to the preconditions for the provision of transport services (conditions for access to the transport market), as in the present case, but rather to the conditions governing the carriage of certain goods (conditions for the carriage of goods). ( 48 ) In that regard, the Court held that the conditions imposed in connection with the mode of transport and with the duration and distance of carriage were such as to restrict free movement of the goods in question. ( 49 )

70.

Secondly, unlike the Austrian legislation at issue, the legislative provisions concerned in the case-law relied on by CX did not target particular hauliers but applied in a general manner to any carriage of goods falling within their scope. It is to that end that the Court considered that the conditions of carriage imposed were liable to obstruct the free movement of the goods concerned and, in particular, their free transit. ( 50 )

71.

It should be noted that the Austrian legislation at issue in the main proceedings imposes no restriction on the conditions for the carriage of goods from Turkey. Under that legislation, those goods may move freely by road to, through or from Austrian territory. Only the possibility for Turkish hauliers to transport those goods is limited. In other words, Turkish goods may move freely in Austria but not necessarily in Turkish lorries. I would add that that legislation does not target goods from Turkey but applies also to carriage by Turkish hauliers of goods from Member States, including Austria.

72.

It follows, in my view, that even assuming that the Austrian legislation at issue falls within the provisions relating to the free movement of goods, that legislation is not incompatible with the general principle of free transit of goods within the European Union, recognised by the Court as a corollary of that freedom. ( 51 )

73.

In conclusion, I consider that the arguments relied on by CX are incapable of calling into question the classification of the relevant Austrian legislation as a measure in the field of transport services. It follows that the provisions laid down by Decision No 1/95 of the Association Council on the free movement of goods between the European Union and Turkey are not applicable to such legislation.

74.

Such legislation must, however, comply with the standstill clause contained in Article 41(1) of the Additional Protocol. ( 52 ) I shall examine that issue in the next section.

75.

Article 41(1) of the Additional Protocol contains a standstill clause, under which the Contracting Parties are to refrain from introducing between themselves any new restrictions, inter alia, on the freedom to provide services. It follows from the case-law of the Court that that clause is capable of applying to transport services and that it may be relied on by an undertaking established in Turkey which is lawfully providing services in a Member State. ( 53 )

76.

The standstill clause prohibits generally the introduction of any new measure having the object or effect of making the exercise by a Turkish national, inter alia, of the freedom to provide services in the territory of a Member State subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to that Member State. ( 54 ) In order to determine whether that clause precludes national legislation such as that at issue, it must therefore be considered whether it entails a restriction on the freedom to provide services and, if so, whether that restriction must be considered to be a new one. ( 55 )

77.

As regards, first, the question whether the legislation at issue in the main proceedings entails a restriction on the freedom to provide services, I consider that that question calls for a reply in the affirmative. In that regard, I would point out that, according to settled case-law, national legislation which makes the provision of certain services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitutes a restriction on the fundamental principle enshrined in Article 56 TFEU. ( 56 )

78.

As regards, secondly, the question whether the legislation at issue constitutes a new restriction, it is necessary to determine whether that legislation has a new aspect in that it results in a worse position for Turkish hauliers than their position under the rules applicable to them in Austria on the date of the entry into force of the Additional Protocol for that Member State. ( 57 )

79.

In that regard, the Austrian Government states that the quota system provided for in the Austria-Turkey road transport agreement was already in force at the time of the entry into force of the Additional Protocol for the Republic of Austria, upon its accession to the European Union on 1 January 1995. ( 58 )

80.

Subject to verification in that regard, which is a matter for the referring court, it therefore seems that the Austrian legislation at issue does not entail a new restriction on the freedom to provide services for the purposes of the Article 41(1) of the Additional Protocol. ( 59 )

81.

CX considers that the Austrian legislation at issue results in discrimination against Turkish hauliers, in breach of Article 9 of the EEC-Turkey Association Agreement — which prohibits any discrimination on grounds of nationality within the scope of that agreement — since the restrictions connected with the transport quota system do not apply to hauliers established in the European Union. ( 60 )

82.

Like the Austrian and Hungarian Governments and the Commission, I consider that Article 9 of the EEC-Turkey Association Agreement does not preclude legislation such as that at issue in the main proceedings, for the following reasons.

83.

In the first place, I consider that Article 9 of the EEC-Turkey Association Agreement is not applicable to such legislation. According to its wording, that provision applies ‘without prejudice to any special provisions which may be laid down pursuant to Article 8’ of that agreement. ( 61 ) Although, at the current stage of development of the EEC-Turkey Association, there are no specific rules in the field of transport, ( 62 ) it cannot be ruled out that such rules might be adopted by the Association Council under Article 15 of the EEC-Turkey Association Agreement and Article 42 of the Additional Protocol. As the Commission rightly points out, the application of Article 9 of the EEC-Turkey Association Agreement to legislation such as that at issue in the main proceedings would therefore anticipate the content of any rules in the field of transport.

84.

In the second place, even assuming that Article 9 of the EEC-Turkey Association Agreement is applicable to legislation such as that at issue in the main proceedings, I consider that such legislation does not result in discrimination within the meaning of that provision.

85.

In that regard, it must be pointed out that the Austrian legislation at issue draws no distinction on the basis of the place of establishment of the haulier. ( 63 ) The difference in treatment relied on by CX, according to whether or not the haulier is established in a Member State, is merely the consequence of the different regulatory frameworks applicable, on the one hand, to hauliers established in the European Union and, on the other hand, to hauliers established in Turkey. While the former are subject to common rules relating to international transport, in particular those established by Regulation No 1072/2009, the latter are not subject to such rules.

86.

It follows that only hauliers established in the European Union have the possibility of availing themselves of a Community licence issued in accordance with Regulation No 1072/2009, which is one of the forms of authorisation fulfilling the requirements of the Austrian legislation at issue. That possibility does not exist for Turkish hauliers, whose activities do not fall within the scope of Regulation No 1072/2009, and those hauliers are therefore obliged to use other forms of authorisation in order to fulfil the requirements of the Austrian legislation at issue. ( 64 ) That difference, which is due to the disparities between the rules applicable to European Union hauliers and those applicable to Turkish hauliers, cannot be eliminated by means of Article 9 of the EEC-Turkey Association Agreement. In other words, I consider that that provision cannot be relied on with a view to achieving a degree of liberalisation in the field of international transport which is not yet intended by the Contracting Parties to the EEC-Turkey Association Agreement. ( 65 )

87.

On that basis, I propose that the Court rule that Article 9 of the EEC-Turkey Association Agreement does not preclude legislation such as that at issue in the main proceedings.

88.

In the light of the foregoing considerations, I propose that the Court should answer as follows the question referred by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria):

The Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, and Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union do not preclude national legislation such as that at issue in the main proceedings, under which goods transport undertakings established in Turkey may engage in the international commercial carriage of goods to or through Austrian territory only if they have, for the motor vehicles concerned, passes issued as part of a quota established under a bilateral agreement between the Republic of Austria and the Republic of Turkey or if they are granted authorisation for a single transport of goods, in which case the single transport of goods must be of substantial public interest and the applicant must sufficiently demonstrate that the journey cannot be avoided by logistical measures or by the choice of a different means of transport, provided that the referring court is satisfied that that legislation does not entail a new restriction on the freedom to provide services for the purposes of Article 41(1) of the Additional Protocol.