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Order of the Court of 12 July 1990.

Commission of the European Communities v Federal Republic of Germany.

C-195/90 • ECLI:EU:C:1990:314 • 61990CO0195(01)

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Commission of the European Communities v Federal Republic of Germany.

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Keywords

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1 . Application for interim measures - Interim measures - Conditions for grant - Serious and irreparable damage - Pecuniary damage

( EEC Treaty, Art . 186; Rules of Procedure, Art . 83(2 ) )

2 . Application for interim measures - Interim measures - Conditions for grant - Lodging of security

( EEC Treaty, Art . 186; Rules of Procedure, Art . 86(2 ) )

Summary

1 . The urgency of an application for interim measures, as referred to in Article 83(2 ) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting relief in order to prevent serious and irreparable damage by the immediate application of the measure which is the subject of the main proceedings .

Although, in principle, pecuniary damage is not to be regarded as irreparable, the position may be different in exceptional circumstances where pecuniary compensation cannot restore the injured person to the position prior to the occurrence of the damage .

2 . The lodging of security as a condition for the grant of interim relief applied for pursuant to Article 86(2 ) of the Rules of Procedure, can be contemplated only if the party against which it is ordered is liable for the sums which the security is intended to cover and there is a risk of that party' s insolvency . There is no such risk in the event of the Community being liable for the said sums .

Parties

In Case C-195/90 R,

Commission of the European Communities, represented by Rolf Waegenbaur, Legal Adviser, and Ricardo Gosalbo Bono, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

supported by

Kingdom of Belgium, represented by Eduard Marissens, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Lucy Dupong, 14 A rue des Bains,

Kingdom of Denmark, represented by Jorgen Molde, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Danish Embassy, 11 B boulevard Joseph-II,

French Republic, represented by Jean-Pierre Puissochet, Director for Legal Affairs in the Ministry of Foreign Affairs, and Géraud de Bergues, Principal Deputy Secretary in the Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9 boulevard Prince-Henri,

Grand Duchy of Luxembourg, represented by Fernand Kesseler, Principal Governmental Adviser to the Ministry of Transport, acting as Agent, with an address for service in Luxembourg at the Ministry of Transport, 19-21 boulevard Royal,

Kingdom of the Netherlands, represented by A . Bos, Legal Adviser in the Ministry of Foreign Affairs, and J . W . de Zwaan, Deputy Legal Adviser in the Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the Netherlands Embassy, 5 rue C . M . Spoo,

interveners,

v

Federal Republic of Germany, represented by Ernst Roeder, Regierungsdirektor in the Federal Ministry of the Economy, and Joachim Karl, Oberregierungsrat in the Federal Ministry of the Economy, and by Jochim Sedemund, Rechtsanwalt, Cologne, acting as Agents, with an address for service in Luxembourg at the Embassy of the Federal Republic of Germany, 20-22 avenue Emile-Reuter,

defendant,

APPLICATION for an interim order suspending the operation of the Gesetz ueber Gebuehren fuer die Benutzung von Bundesfernstrassen mit schweren Lastfahrzeugen ( Law on charges for the use of Federal roads and motorways by heavy goods vehicles ) of 30 April 1990 ( BGBl . I, p . 826 ),

THE COURT

composed of O . Due, President, Sir Gordon Slynn, C . N . Kakouris, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, F . Grévisse et M . Díez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : H . A . Ruehl, Principal Administrator,

after hearing the views of the Advocate General

makes the following

Order

Grounds

1 By an application lodged at the Court Registry on 23 June 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by enacting the Gesetz ueber Gebuehren fuer die Benutzung von Bundesfernstrassen mit schweren Lastfahrzeugen ( hereinafter referred to as the "Gesetz ueber Gebuehren ") of 30 April 1990, the Federal Republic of Germany has failed to fulfil its obligations under Articles 76, 95 and 5 of the EEC Treaty .

2 By a separate document also lodged at the Court Registry on 23 June 1990, the Commission of the European Communities sought an interim order under Article 186 of the EEC Treaty that the Federal Republic of Germany should take the necessary measures to suspend the operation of the Gesetz ueber Gebuehren until the Court had reached a decision in the main proceedings .

3 On 28 June 1990 the President of the Court made the following order pursuant to Article 84(2 ) of the Rules of Procedure upon the Commission' s application for interim measures even before the observations of the defendant had been submitted :

"( 1 ) As a protective measure, the Federal Republic of Germany shall suspend the charging of the road tax provided for in the Gesetz ueber Gebuehren fuer die Benutzung von Bundesfernstrassen mit schweren Lastfahrzeugen of 30 April 1990 in respect of vehicles registered in other Member States pending delivery of the final order in these proceedings for interim measures .

( 2 ) Costs are reserved ."

4 Pursuant to the first paragraph of Article 85 of the Rules of Procedure, the President of the Court by decision of 27 June 1990 with effect from 29 June 1990 referred the final decision in the proceedings for interim measures to the Court .

5 By order of 4 July 1990 the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands were given leave to intervene in the proceedings for interim measures in support of the Commission' s claim .

6 The Kingdom of Belgium, the French Republic and the Kingdom of the Netherlands lodged written observations in support of their application to intervene . The Federal Republic of Germany submitted written observations on 29 June 1990 . The Commission, the applicant, the Kingdom of Belgium, the Kingdom of Denmark, the French Republic and the Kingdom of the Netherlands, interveners, and the Federal Republic of Germany, defendant, presented oral argument at the hearing of the Court on 6 July 1990 .

7 Paragraph 1 of the Gesetz ueber Gebuehren introduces a road tax (" Strassenbenutzungsgebuehr "), payable, with certain exceptions, on all heavy goods vehicles, whose licensed fully loaded weight exceeds 18 tonnes, regardless of their place of registration, which use Federal roads and motorways outside built-up areas .

8 The annual amount of the tax varies, according to the total loaded weight of the vehicle, from DM 1 000 to 9 000 . Upon certain conditions the tax may be paid for specific periods of days ( 24 hours ), weeks or months .

9 A certificate is issued for payment of the tax and must accompany the vehicle . The necessary checks are carried out, inter alia, by the police and customs officers; checks at frontiers between Member States may, however, only be by spot checks as part of other checks .

10 Article 2 of the Gesetz ueber Gebuehren also amends the Kraftfahrzeugsteuergesetz ( Law on Motor Vehicle Tax ) and introduces until the end of 1993 a reduced rate of motor vehicle tax payable on all vehicles according to a scale varying according to the vehicle' s total weight up to a maximum of DM 3 500 per annum .

11 Article 5 of the Gesetz ueber Gebuehren provides that it shall enter into force on 1 July 1990 and cease to apply at the end of 1993 .

12 It is apparent from the documents before the Court that on 21 March 1989 a draft of the Gesetz ueber Gebuehren was forwarded to the Commission for consultation pursuant to the Council Decision of 21 March 1962 instituting a procedure for prior examination and consultation in respect of certain laws, regulations and administrative provisions concerning transport proposed in Member States ( Official Journal, English Special Edition 1959-62, p . 96 ).

13 The Opinion delivered by the Commission on 15 June 1989 pursuant to the said decision points out that the proposed reduction in the motor vehicle tax would benefit only German carriers, since the carriers of other Member States are, as a result of bilateral agreements, exempt from that tax and the proposed reduction in the rate of the tax would be practically equivalent to the amount of the road tax contemplated . The introduction of the latter tax would thus in fact not constitute a burden upon German carriers but solely on carriers of other Member States who would be required to pay the road tax without having the benefit of a reduction in the motor vehicle tax .

14 The Commission concludes in its Opinion that the provisions contemplated by the Federal Republic of Germany infringe the "standstill" obligation under Article 76 of the EEC Treaty, according to which, until a common transport policy as referred to in Article 75(1 ) has been established, no Member State may, without the unanimous approval of the Council, make the various provisions governing the subject when the Treaty enters into force less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State . According to the Opinion, the provisions contemplated were, in addition, contrary in particular to Article 95 of the EEC Treaty .

15 The draft law was adopted on 6 April 1990 whereupon the Commission sent formal notice to the Federal Republic of Germany on 11 April 1990 followed, on 1 June 1990, by the reasoned opinion provided for in Article 169(1 ) of the EEC Treaty .

16 In its replies of 30 April and 22 June 1990 to the formal notice and the reasoned opinion, the Federal Republic of Germany states that the object of the law is, first, to harmonize the conditions of competition between German carriers and those of other Member States and to establish an adequate contribution to the costs of the road infrastructure . It argues that Article 76 of the EEC Treaty does not lay down a standstill obligation in a situation of this kind but is a specific embodiment of the general rule prohibiting discrimination . Neither the new road tax nor the reduction in motor vehicle tax is in itself discriminatory .

17 The Federal Republic of Germany states in the said replies that the road tax is in accordance with the guidelines proposed by the Commission itself in its proposal of 8 January 1988 for a Council Directive on the charging of transport infrastructure costs to heavy goods vehicles and that the Gesetz ueber Gebuehren is of limited duration since it is hoped that a harmonized system of taxation will be adopted before the end of 1993 .

18 Article 185 of the EEC Treaty provides that actions brought before the Court do not have suspensory effect . However, pursuant to Article 186 of the EEC Treaty, the Court may in cases before it prescribe any necessary interim measures .

19 According to Article 83(2 ) of the Rules of Procedure, a decision ordering an interim measure may be made only where there are circumstances giving rise to urgency and factual and legal grounds establishing a prima-facie case for the interim measure applied for .

20 As factual and legal grounds establishing a prima-facie case for the interim measure applied for, the Commission and the Member States intervening in its support make three submissions, concerning the infringement of Article 76 of the EEC Treaty, of Article 95 of the EEC Treaty, and of the combined provisions of Articles 5 and 8a of the EEC Treaty respectively .

21 The Commission maintains that the Federal Republic of Germany has infringed Article 76 of the EEC Treaty by adopting measures discriminating against carriers of other Member States and not observing the standstill clause laid down therein .

22 The German law is, in the Commission' s view, also contrary to Article 95 of the EEC Treaty in so far as carriers of other Member States are subject to heavier taxation than German carriers and such taxation, which will lead to an increase in transport prices, will inevitably have repercussions on the price of imported products .

23 The Commission also alleges that the Federal Republic of Germany has infringed Article 5 of the EEC Treaty, which requires abstention from any unilateral measures which could jeopardize the common policy on taxation of means of transport for the use of the road infrastructure by heavy goods vehicles, and has thereby created obstacles to the establishment of an area without internal frontiers as provided for by Article 8a of the Treaty .

24 The Federal Republic of Germany denies having infringed Article 76 of the EEC Treaty and contends that the road tax for heavy goods vehicles, even in conjunction with the reduction in the motor vehicle tax, is not discriminatory . The Gesetz ueber Gebuehren has two objectives, namely to harmonize the conditions of competition between German carriers and those of other Member States and to establish an adequate contribution to the costs of the road infrastructure in order both to relieve road congestion and to protect the environment . As regards the first objective, the Federal Republic of Germany states that carriers of other Member States do not receive any reduction in the motor vehicle tax because they are exempt from such tax under agreements made between the States in which they are established and the Federal Republic of Germany . In those circumstances the Gesetz ueber Gebuehren is not contrary to the standstill obligation laid down in Article 76 of the EEC Treaty .

25 As regards the infringement of Article 95 of the EEC Treaty, the Federal Republic of Germany stresses the non-discriminatory nature of the tax and maintains that it is indirect taxation within the meaning of Article 99 of the EEC Treaty which must be harmonized pursuant to the rules provided for by the Treaty .

26 According to the Federal Republic of Germany, Article 5 of the EEC Treaty does not lay down a general standstill obligation and, so long as no common transport policy has been established pursuant to Articles 74 and 75 of the EEC Treaty, the Member States remain, in principle, competent in this area .

27 It should be observed, as regards the Commission' s first submission, that the Commission has adduced weighty factors in support of its argument that Article 76 of the EEC Treaty must be interpreted as prohibiting any unilateral national measure having the direct or indirect effect of altering, to the detriment of other Member States, the existing situation in relation to the conditions under which international transport is carried out from or to the territory of a Member State or crossing the territory of one or more Member States .

28 Such may in particular be the case of a new road tax for heavy goods vehicles introduced by a Member State where the burden on national carriers is largely offset by a reduction in the motor vehicle tax to which the carriers of other Member States are not subject pursuant to bilateral agreements concluded between the State where such carriers are established and the State which has imposed the tax .

29 As regards the German Government' s argument that the Gesetz ueber Gebuehren encourages the transfer of road traffic to the railways or inland waterways, it is to be observed that although the protection of the environment constitutes, according to the case-law of the Court, one of the essential objectives of the Community ( see the judgment in Case 302/86 Commission v Denmark [1988] ECR 4607 ), the importance of which has moreover been confirmed by the Single European Act, it does not necessarily follow that a Member State may, by invoking that objective, evade its obligations under Article 76 of the EEC Treaty . It appears moreover from consideration of the statement of grounds in the Gesetz ueber Gebuehren and the German authorities' statements during the proceedings that the Gesetz ueber Gebuehren is mainly intended to harmonize the conditions of competition for German carriers while the relief of road congestion and the protection of the environment are merely subsidiary aims .

30 Without it being necessary at this stage to consider the other submissions put forward, it is to be observed that the submission relating to infringement of Article 76 of the EEC Treaty constitutes, prima facie, a sufficient basis for the grant of the interim measure applied for .

31 As regards the condition of urgency, it is to be borne in mind that the Court has consistently held that the urgency of an application for interim measures, as referred to in Article 83(2 ) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage by the immediate application of the measure the subject of the main proceedings .

32 On that issue the Commission, backed by the Member States intervening in its support, alleges that there is a risk of the application of the tax at issue causing irreparable damage at least to certain carriers of the other Member States . The damage to those carriers consists, in the Commission' s view, in an increase in transport costs which would force them to increase their tariffs - and risk losing customers - or else reduce their profit margins - and risk having to cease trading . The Commission maintains generally that the unilateral introduction of the road tax by the Federal Republic of Germany constitutes an unacceptable undermining of ordre public in the Community . Since there is a danger of the introduction of the tax provoking retaliatory measures on the part of the other Member States, it would render illusory any progress towards achieving the common transport policy .

33 The Federal Republic of Germany denies that there would be any irreparable damage to ordre public in the Community and to traders on the transport market as claimed by the Commission .

34 The German tax is neutral as regards competition and brings the German tax system closer into line with those in the majority of Member States and pursues the object of establishing a transport policy based on the principle of territoriality . In those circumstances it cannot be said to jeopardize achievement of the common transport policy .

35 Furthermore, in view of the slight effect it would have on transport costs, the new tax could not affect the competitive position of carriers of other Member States . On the other hand, the danger of deterioration in their competitive position is greater for German carriers who are subject to heavier taxes than their counterparts in other Member States .

36 The Federal Republic of Germany adds that in balancing the interests in question, priority should be given to the requirements of protecting the environment and alleviating congestion on the German road network .

37 It adds that in any event, even if the Court were to uphold the main application and find that the Federal Republic of Germany had failed to fulfil its Community obligations by creating the tax at issue, it would be possible to make good any damage suffered by transport undertakings of other Member States . The damage which the Federal Republic of Germany would suffer as a result of an order suspending the operation of the Gesetz ueber Gebuehren of 30 April 1990 would, on the other hand, be irreparable .

38 It should be noted that, although, in principle, pecuniary damage is not to be regarded as irreparable, the position may be different in exceptional circumstances where pecuniary compensation cannot restore the injured person to the position prior to the occurrence of the damage .

39 That possibility cannot be ruled out in the present case . In view of the often very slender profit margins of many medium-sized transport undertakings mentioned at the hearing, there is a danger of the effect of the tax in question on the profitability of carriers of other Member States forcing many of them to stop trading . Furthermore, the application of the tax at issue is likely to bring about irremediable changes in the respective market shares of German carriers and of carriers of other Member States . Such an abrupt and substantial change, caused by a unilateral national measure, in the conditions at present existing on the road transport market in the Community, which could not be exactly re-established later if the measures in question are held to be contrary to the Treaty, would also make the development and completion of the common transport policy, required by Article 74 of the EEC Treaty, more difficult .

40 It must therefore be held that the Commission, supported by the interveners, has established the existence of a risk of serious and irreparable damage .

41 The Federal Republic of Germany maintains that the grant of the interim measure applied for would cause it irreparable damage consisting in the loss of revenue from the taxes which are not levied during the main proceedings and the risk to the threat to the economic survival of German carriers .

42 In that respect it should be pointed out that the damage alleged by the Federal Republic of Germany is only the detrimental consequence of a situation existing before the introduction of the new tax . Moreover it has not been shown that the measures which have been introduced were made necessary by a significant change in the factual situation likely to increase substantially the magnitude of the existing damage and to justify a different reaction from the German authorities . Finally there seems little likelihood of any serious risk of the damage increasing to any considerable extent in the time up to the adoption of the decision in the main proceedings .

43 As regards, in particular, the damage arising from uncollected taxes which it will be impossible to recover subsequently, it suffices to observe that no such tax existed in the past and therefore there can be no question of the loss of revenue seriously affecting the public finances of the Federal Republic of Germany .

44 As regards the threat to the economic survival of German carriers as a result of the deterioration in their competitive position, there is, at first sight, nothing to suggest that, in the absence of any substantial change in the market situation in relation to circumstances which have prevailed for a long period, such a risk will materialize in the coming months .

45 Regarding the argument that the environment will be affected, Germany has failed to substantiate its contention that imposition of the contested tax on carriers of other Member States would lead to a transfer of road traffic to the railways and inland waterways rather than the transfer of the market share of carriers of other Member States to German carriers .

46 In those circumstances it must be held that the condition of urgency has been satisfied .

47 It should therefore be ordered, as an interim measure, that the Federal Republic of Germany suspend the charging of the road tax provided for in the Gesetz ueber Gebuehren fuer die Benutzung von Bundesfernstrassen mit schweren Lastfahrzeugen of 30 April 1990 in respect of vehicles registered in other Member States pending the delivery of the judgment in the main proceedings brought by the Commission .

48 As regards the Federal Republic of Germany' s claim that, in the event of the grant of the interim measure applied for, the Commission should be ordered to provide a security of some DM 500 000 000 to cover payment of the taxes for which carriers of other Member States would be liable pending the proceedings and which the Federal Republic of Germany would not be able to recover subsequently even if it were successful in its submissions, it should be observed that the lodging of security pursuant to Article 86(2 ) of the Rules of Procedure can be contemplated only if the party against which it is ordered is liable for the sums which the security is intended to cover and there is a risk of that party being insolvent .

49 That is not so in the present case since in any event there are no grounds for believing that the Community will not be able to meet any award of damages which may be made against it .

50 If follows that there is no ground for making the grant of the interim measure subject to the lodging by the Commission of security of DM 500 000 000 .

Operative part

On those grounds,

THE COURT

hereby orders as follows :

( 1 ) The Federal Republic of Germany shall suspend the charging of the road tax provided for in the Gesetz ueber Gebuehren fuer die Benutzung von Bundesfernstrassen mit schweren Lastfahrzeugen of 30 April 1990 in respect of vehicles registered in other Member States pending delivery of the judgment in the main proceedings .

( 2 ) Costs are reserved .

Luxembourg, 12 July 1990 .

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