Action brought on 12 October 2017 — Republic of Austria v Federal Republic of Germany

(Case C-591/17)

(2017/C 402/23)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: G. Hesse, acting as Agent)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

1.   Indirect discrimination on grounds of nationality through the compensation of the infrastructure charges by means of tax relief for owners of cars registered in Germany

The Law on infrastructure charges requires all users of the German motorway network to pay an infrastructure charge graded according to the emissions class of the vehicle. However, road users residing in Germany are reimbursed at least an equal amount through tax relief enshrined in the Law on motor vehicle tax. The connection in timing and content between the infrastructure charge and motor vehicle tax relief in (at least) an equal amount means that, in effect, only foreign road users are subject to the infrastructure charge.

The Republic of Austria takes the view that those two measures, due to their inseparability in timing and content, must be judged together under EU law. The legislation gives rise to indirect discrimination on grounds of nationality which, under Article 18 TFEU, requires justification. In the Republic of Austria’s view, there is no such justification for discrimination against foreign road users. The legislation therefore infringes Article 18 TFEU.

2.   Indirect discrimination on grounds of nationality through the design of the infrastructure charge

A difference in treatment of national and foreign road users also lies in the fact that monitoring of the obligation to pay and sanctions on account of unpaid or incorrectly paid infrastructure charges apply predominantly to foreign drivers, because German drivers are automatically invoiced the infrastructure charge.

3.   Infringement of Articles 34 TFEU and 56 TFEU

In the Republic of Austria’s view, there is, moreover, an infringement of the free movement of goods and the freedom to provide services, in so far as the legislation affects the cross-border supply of goods with small motor vehicles below 3,5 t weight that are subject to the infrastructure charge and the provision of services by non-residents or the provision of services to non-residents. It must therefore — in addition to the discrimination already indicated — also be classified as an inadmissible restriction on those fundamental freedoms which cannot be justified.

4.   Infringement of Article 92 TFEU

Lastly, the legislation infringes Article 92 TFEU, in so far as it extends to commercial bus transportation or the transportation of goods with motor vehicles below 3,5 t. Article 92 TFEU does not provide for a possibility of justification, with the result that the very existence of discrimination under Article 92 TFEU renders the legislation incompatible with EU law.