1. 

By application registered at the Court Registry on 20 January 1994, the European Parliament seeks the annulment of Council Directive 93/89/EEC of 25 October 1993 on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures. ( 1 )

2. 

Following Case C-65/90 Parliament ν Council — which gave rise to the judgment ( 2 ) annulling Council Regulation (EEC) No 4059/89 of 21 December 1989 laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State ( 3 ) — and Case C-388/92 Parliament ν Council — which gave rise to the judgment ( 4 ) annulling Council Regulation (EEC) No 2454/92 of 23 July 1992 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State ( 5 ) —, the Parliament is once more complaining that the Council failed to reconsult it in accordance with the procedure laid down in Article 75(1) of the EEC Treaty concerning transport. ( 6 )

3. 

Under the separate transport policy, the Commission has for nearly 30 years been concerned to eliminate distortions of competition between road hauliers in the Member States arising from differences in the methods by which those carriers contribute to the cost of the infrastructures they use. While some contributions take the form of a tax on vehicles registered in a Member State, irrespective of the number of miles driven, others vary in direct proportion to mileage and take, for example, the form of tolls. As Mr Bourlanges noted: ( 7 )

‘The juxtapositioning of these two systems of contribution gives rise to a situation which is very damaging for some hauliers in some Member States, who have to pay twice over: for the cost of their own infrastructure network when they are at home, by means of a [high] tax levied on the vehicle, and again, when they go to other Community countries, by having to pay tolls.’

4. 

In a proposal for a first Council directive on the adjustment of national systems for the taxation of heavy goods vehicles submitted to the Council on 17 July 1968, ( 8 ) the Commission proposed that the Member States should adjust their tax systems for heavy goods vehicles by replacing existing taxes ‘with a tax on the use of road infrastructures’ ( 9 ) which would reflect ‘(...) the respective responsibilities of goods vehicles for the costs caused by their movements’. ( 10 ) Such a tax, levied on the basis of total permissible laden weight, would be applied to all heavy goods vehicles. The proposal was not approved by the Council.

5. 

The Commission's efforts led to the adoption of Directive 93/89 after parliamentary proceedings abounding in unexpected developments, which I shall summarize as follows.

6. 

On 15 January 1988, the Commission submitted to the Council a proposal COM(87) 716 final for a Directive on the charging of transport infrastructure costs to heavy goods vehicles ( 11 ) designed progressively to adjust the national systems of taxation for the use or possession of heavy goods vehicles. Drawing inspiration from the 1968 proposal, the Commission, by replacing the ‘principle of nationality’ with the ‘principle of territoriality’, proposed that national taxation systems should be progressively adjusted so that the tax should be directly related to actual use of the road infrastructure, irrespective of where the vehicle was registered. The costs of maintaining those infrastructures would thus be more equitably shared and conditions of competition equalized as between hauliers. Article 10 provides that: ‘After 31 December 1992 infrastructure costs shall be charged to users through a combination of taxes on possession or use of heavy goods vehicles levied in accordance with the principle of territoriality and, where they exist, tolls, taking account of the fact that excise duties on diesel oil will have been harmonized at Community level by that date’. ( 12 )

7. 

Subject to an amendment, the Parliament approved the proposal by legislative resolution of 23 May 1989. ( 13 )

8. 

The proposal was never adopted by the Council, where it was said to be ‘very poorly received’. ( 14 )

9. 

On 27 November 1990 the Commission submitted a modification of the proposal, COM(90) 540 final, ( 15 ) which set the same longer-term objective: ‘the implementation for vehicle taxation purposes of a Community-wide system following the principle of territoriality’ ( 16 ) progressively implemented in stages following ‘a strict time schedule’. ( 17 ) Article 10 provides that as from 1 January 1995, Member States are to apply minimum vehicle tax rates, annually reviewed, to establish a gradual increase of ‘the coverage of road infrastructure costs so that at least total road infrastructure costs are covered, not later than 31 December 1999’. ( 18 ) Those rates are to take account of diesel excise duties and a downward correction to take into account double taxation occurring as a result of tolls.

10. 

That proposal was approved, subject to numerous amendments, by legislative amendment of the Parliament of 15 May 1992. ( 19 )

11. 

Proceeding from an acknowledgement that ‘(...) in the absence of a satisfactory theoretical model for determining the costs to be charged or of sufficiently precise, comparable and complete figures, a period of several years is required to examine, propose, adopt and implement a reliable and strict system for charging infrastructure costs, including costs relating to the environment’, ( 20 ) the Parliament proposed to draw a clear distinction between an initial transitional phase of harmonization of existing taxation and a final phase of charging infrastructure costs to transport undertakings. That new taxation mechanism should consist as a matter of priority of excise duties on fuels and on fees linked to the use of the networks (which may take the form of season ticket charges) — which are particularly well suited to the requirements of taxes levied on a territorial basis — and not of vehicle taxes, ‘non-territorial taxes par excellence’, the amount and proceeds of which ‘are fixed without any reference whatsoever to the actual use of the network by the vehicle on which the tax is levied’. ( 21 )

12. 

In its judgment in Case C-195/90 Commission ν Germany, ( 22 ) the Court held that, by adopting the Law of 30 April 1990 on charges for the use of federal roads and motorways by heavy goods vehicles, Germany had failed to fulfil its obligations under Article 76 of the EEC Treaty. That law introduced a tax on heavy goods vehicles circulating in Germany and reduced by an equivalent amount the vehicle tax paid by carriers registered in the Federal Republic of Germany.

13. 

Acting in the light of that judgment and appropriating many of the ideas put forward by the Parliament in May 1992, ( 23 ) the Commission submitted a new modified proposal COM(92) 405 final on 26 October 1992. ( 24 )

14. 

The introduction of the harmonized system of road taxation based on the principle of territoriality is deferred, until the Council has ‘as soon as possible’ ( 25 ) adopted further measures on the basis of a report and proposals to be drawn up by the Commission before 1 January 1998, the harmonized system being due to enter into force on 30 June 1999 at the latest.

15. 

The proposal adopts a transitional system based, first, on the setting of minimum rates for vehicle taxes (rates considerably lower than those in the earlier proposal) and, secondly, on the opportunity for Member States to impose charges for the use of their motorways.

16. 

It was approved by the Parliament on 18 December 1992, ( 26 ) subject to two minor amendments establishing user charges proportional to the distance covered and providing for exemption from user charges ‘when travelling in border areas’.

17. 

The ‘Transport’ Council of 19 June 1993 considered both a draft measure on cabotage in the carriage of goods and the proposal for a directive on the application by Member States of taxes on certain vehicles used for the carriage of goods by road.

18. 

When it was informed of the amendments arising from the proceedings of the Council, the Transport Committee of the Parliament invited the Council to reconsult it, which the Council refused to do by letter of 8 October 1993 from the Presidency.

19. 

Directive 93/89 was adopted in definitive form on 25 October 1993, on the same day as Council Regulation (EEC) No 3118/93 laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State. ( 27 )

20. 

The Parliament claims that the final text reveals substantial amendments as compared with the text of the amended proposal, which require it to be reconsulted.

21. 

I shall consider:

22.

The case-law of the Court has established a number of requirements to ensure that the Parliament's prerogatives are respected during the process of drawing up legislative acts. ( 28 )

23.

Of the various legislative procedures in which the Parliament participates, the consultation procedure is the one which gives it fewest powers.

24.

In order to maintain an institutional balance, the Court nevertheless considers that consultation to be an essential formal requirement disregard of which renders the measure concerned void. ( 29 )

25.

The Court ensures that consultation does take place and that the Parliament can, through the opinions it issues in the consultation procedure, exert some influence on the substance of the legislative acts adopted by the Council. ( 30 )

26.

It is necessary to strike a balance here between two conflicting requirements.

27.

First, the right to be consulted on the Commission's proposal would be a mere formality if it were open to the Council to adopt definitively a different text, bearing no relation to the proposal on which the Parliament has given an opinion.

28.

Secondly, in order to distinguish the consultation procedure on the one hand from the assent procedure or the cooperation or joint decision-taking procedures on the other, the Council must be able to depart, within certain limits, from the proposed text and the opinion of the Parliament which is not legally binding on it.

29.

It is exactly those limits which the Court has defined in what is by now well settled case-law: ‘... whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases where the amendments substantially correspond to the wishes of the Parliament itself ...’, the Parliament must be reconsulted. ( 31 )

30.

What is to be understood by the concept of a substantial amendment of an act or of an amendment which ‘... affects the scheme of the proposal taken as a whole ...’? ( 32 )

31.

The Court considers that amendments which ‘relate to the very essence of the provisions drawn up ... must be called substantial’. ( 33 ) That is so in the case of the definitive regulation replacing the principle of freedom to provide cabotage as regards the carriage of goods by road in the Member States laid down in the proposal with the principle of temporary authorization under a Community quota. ( 34 ) The Court thus identifies a fundamental difference between a definitive liberalization of transport services and a temporary liberalization which is of necessity uncertain, since it may be undermined by lack of diligence on the Council's part. ( 35 )

32.

A similar situation was in point in the field of cabotage carriage of passengers by road. The Commission's initial proposal envisaged that any carrier who operated road passenger transport services for hire or reward, was established in a Member State in which he was authorized there to undertake the international carriage of passengers, and satisfied the conditions laid down by Directive 74/562/EEC, ( 36 ) should be permitted to operate national road passenger services for hire or reward by means of regular services, occasional services or shuttle services in a Member State other than that in which he was established. The Court found that the proposal had been substantially altered by the regulation adopted by the Council, which restricted the scope both ratione personae and ratione materiae of the regulation to a few exceptional situations. ( 37 )

33.

Conversely, an amendment is not substantial if it

34.

In order to establish whether the amendments affect the very essence of the enactment, the Court uses an objective test, namely a collation of the two texts: a ‘comparison between the Commission's initial proposal and the contested regulation ...’. ( 41 )

35.

After I have described the system set up by the proposal, I shall endeavour to discover, by a comparative study of the two texts, whether it is possible to identify any substantial amendments.

36.

The Commission's amended proposal displays three features which constitute ‘the very essence of the enactment’:

37.

Directive 93/89 maintains a ‘progressive’ approach. The establishment of a cost-charging scheme based on the principle of territoriality becomes a non-binding objective which the Commission may ‘if necessary’ propose in a report to be presented to the Council no later than 31 December 1997. ( 48 )

38.

It departs from the proposal on five main points:

39.

Does the text on which the Council reached agreement, taken as a whole, depart substantially from the proposal on which the Parliament was consulted? That is the question I must now consider.

40.

Clearly, the text finally adopted must be compared with the Commission's last amended proposal, namely that of 26 October 1992, on which the Parliament gave its opinion on 18 December 1992.

41.

In my view, the text finally adopted is a distortion of the proposal in so far as it makes it possible to maintain the status quo without taking any significant step towards harmonizing taxes. It displays substantial modifications which are even more marked than those identified by the Court in its judgments in Case C-65/90 and Case C-388/92, both Parliament ν Council, concerning cabotage. It does not set itself the same objective as the proposal (A) or give itself the same means of attaining it (B).

42.

At first sight, the proposal and the directive are at one as to the objective to be attained ‘... elimination of distortion of competition between transport undertakings in the various Member States calls for both the harmonization of taxation systems — vehicle taxes, excise duty on fuels or charges for the use of a facility — and the establishment of a fair mechanism for charging infrastructure costs to carriers’. ( 53 ) They are in agreement on the fact that that system of charging costs should ‘as far as possible’ ( 54 ) be based on the principle of territoriality, while neither text envisages the total abandonment of the principle of nationality.

43.

The two texts both note that there is no model for assessing and charging infrastructure costs available at present. ( 55 )

44.

That problem was brought to light by the proceedings of the Parliament. During the debates of 14 May 1992, the Rapporteur, Mr Bourlanges made a speech in which he said: ‘Let us start by harmonizing at a satisfactory level, a relatively low level, even if we cannot go along with the Commission's idea of regular increases in rates to cover costs, since we know very well that we do not yet have the means of charging costs in this way. That will be a task for us in the months and years ahead.’ ( 56 )

45.

The two texts diverge as regards the inferences to be drawn from the fact that it was impossible to establish forthwith a Community system of taxation requiring the road infrastructure costs to be borne by carriers in accordance with a principle of territoriality.

46.

The proposal distinguishes a transitional phase setting minimum rates for the vehicle taxes currently applied ( 57 ) from a final phase which is to enter into force as of 30 June 1999 at the latest, ( 58 ) following a strict timetable fixed there and then.

47.

The directive provides for a first stage ( 59 ) during which minimum rates are to be set for the vehicle taxes currently applied. ( 60 ) It does not envisage, except conditionally and as a possibility, ( 61 )‘the establishment of cost-charging arrangements based on the principle of territoriality’. By providing that the Commission is ‘if necessary’ to present a report accompanied by proposals for establishing cost-charging arrangements based on the principle of territoriality, the directive merely recalls the Commission's general right of initiative under Article 155(3) of the EC Treaty. It sets no date for proceeding to the final phase of the harmonized system of cost-charging, which it does not impose.

48.

Charging infrastructure costs to transport operators presupposes the gathering of economic and statistical data by the Member States and the designing of a charging method or model the complexity of which they could judge for themselves. That is my explanation for the Council's caution.

49.

Although the amendment can be explained, it none the less constitutes a substantial amendment of the proposal: the Council has not merely prolonged the transitional phase. It has made transition to the final phase — which the proposal categorically states is to happen by 30 June 1999 at the latest — à mere possibility, not an obligation, as if it entertained doubts as to the ‘feasibility’ of the final objective which it has set itself. Not only is the Council no longer obliged to adopt a harmonized system by 31 December 1998 at the latest, but the Commission is no longer required to submit, in the report to be presented to the Council, proposals for establishing cost-charging arrangements based on the principle of territoriality. ( 62 ) In other words, the directive could be applied in such a way that the Community never at any time switches to a harmonized system of charging infrastructure costs to transport operators. Here the directive radically departs from the proposal which set itself the objective of implementing that system within time-limits fixed then and there. It differs also from the Parliament's position, summarized by the Rapporteur, Mr Bourlanges, as follows: ‘We do not have the necessary data available, nor is there a notion of costs which seems satisfactory to us. Let us not take advantage of these economic and statistical difficulties in order to do nothing, however.’ ( 63 )

50.

Those differences are comparable to the contrasts between the Commission's proposal and the wording of Regulation No 4059/89 which the Court examined in its judgment in Case C-65/90 Parliament ν Council, cited above. It considered that replacing the principle of freedom for transport operators to provide cabotage as regards the carriage of goods by road by the principle of temporary authorization under a Community quota constituted a substantial modification, a fortiori since there was no longer a timetable for transition to final liberalization of transport in the definitive regulation.

51.

Similarly, in Case C-388/92 Parliament ν Council, the Commission's initial proposal had retained the principle of complete freedom of cabotage as regards regular services for road passenger transport as well as ‘shuttle services’ or ‘occasional services’. As far as regular services are concerned, the version finally adopted, Regulation No 2454/92, restricts the scope of cabotage to specialized services only, which are those for the carriage, in frontier areas, of workers, school pupils and students. Under Article 12 of the regulation, cabotage may be extended to other regular services only by a new Council regulation. ( 64 ) The Court stated that a comparison between the Commission's initial proposal and the contested regulation showed that: ‘as far as regular services are concerned, the amendments made have restricted the scope of the regulation to certain types of road passenger transport and to certain restricted frontier zones in such a way as to affect the very essence of the enactment’. ( 65 )

52.

It is the same type of reasoning that I propose the Court should follow in this case.

By making the adoption of a harmonized system based on the principle of territoriality purely optional, the Council has substantially amended the Commission's proposal:

Moreover, the directive permits only an extremely restricted development of transport taxation. It is not far, in fact, from maintaining the status quo, as I shall now demonstrate.

53.

Although minimum rates are provided for, five Member States — those which already provide for low taxation — are temporarily authorized to apply a reduced rate, which in the proposal was limited to three countries. Those rates are to remain unchanged until 31 December 1997. ( 66 ) I see no substantial amendment in that provision. It is rather a question of a change of method, talcing account of greater progression in raising the rates applied by those Member States with the lowest level of taxes. ( 67 )

54.

Nor does it seem to me that Article 7(e) and (f) conflict with the spirit of the proposal. Admittedly, the first of those provisions takes into account only vehicles registered within the Member State concerned and does not apply the principle of territoriality, in all its rigour, but neither the Commission nor the Council has ever claimed that the application of that principle could not be palliated by taking account to some extent of the principle of nationality.

55.

On the other hand, two points do seem to me to constitute substantial amendments.

56.

First, the directive maintains on an incomparably larger scale than the proposal the possibility of applying concurrently vehicle taxes and tolls but does not provide for any medium-or long-term mechanism for eliminating the distortions caused by that concurrent application, by the establishment of a refund system, ( 68 ) before the implementation of a taxation system based on the principle of territoriality.

57.

Secondly, Article 6 of the directive extends the circumstances in which derogations or exemptions from or reductions in the minimum rates may be applied, in a manner difficult to supervise. They may be applied in particular: ‘on the grounds of specific policies of a socio-economic nature or linked to that State's infrastructure’. ( 69 )

58.

In short, it is my view that while the proposal constituted a genuine step towards eliminating distortions of competition produced by taxation, the directive makes it possible to maintain the status quo almost in its entirety ( 70 ) and to leave any chance of progress entirely to the Council's discretion.

59.

Moreover, I believe that it is precisely because the steps which the directive envisages are so timid, and the exceptions and exemptions which it authorizes are so abundant, that it has been impossible to fix a strict timetable.

60.

Accordingly I conclude that the directive finally adopted by the Council, ‘considered as a whole’, ( 71 ) is markedly different from the proposal on which the Parliament was consulted. The contested directive therefore falls to be annulled.

61.

I shall make one last observation. The Council claims that in any case the Parliament had earlier expressed itself on the amendments made to the proposal by the directive and that its opinion was known to the Council. ( 72 ) I find that this is not so with regard to the key point, which is the abandoning of any timetable for proceeding to the final phase, or to the fact that such progress is not obligatory or to the extension of the circumstances in which a derogation or exemption from or a reduction of the minimum rates may be applied.

62.

The Council and the German Government have asked the Court to limit the effects of any annulment of the directive. The Parliament has not objected to this. ( 73 )

63.

The Court recognizes that, where a directive is annulled, important considerations of legal certainty, comparable with those arising where certain regulations are annulled, may justify ‘the Court in exercising the power expressly conferred on it by the second paragraph of Article 174 of the EEC Treaty, when it annuls a regulation, and in stating which of the provisions of the contested directive are to remain effective’. ( 74 )

64.

The Member States were to adjust their tax systems and to apply the minimum rates by 1 January 1995. ( 75 ) If the effects of the directive were not to be preserved, this would amount to a return to the status quo ante and to the annulment of what, after all, constitutes an approximation and the beginnings of a harmonization, however limited, of taxation rates on transport within the Community and contributes to the implementation of the independent transport policy.

65.

The need to avoid discontinuity in the programme for the harmonization of transport taxation and important considerations of legal certainty (there could be an abundance of cases concerning the taxes levied pursuant to the directive since 1 January 1995), and the fact that Article 8 of the directive has already been implemented ( 76 ) provide justification for preserving the effects of the directive until the Council, after proper consultation of the Parliament, has adopted new legislation in the matter. ( 77 )

66.

Finally, the Court could not, as the Parliament requests, order the Council to adopt new legislation within a period fixed by the Court without infringing Article 176 of the EC Treaty.

67.

I therefore propose that: