By Niels Kirst
The recent judgement of the European Court of Justice in C-591/17 Austria v Germany was a Member State dispute about the enactment of a motorway charge in Germany. The Court of Justice of the European Union (hereinafter: CJEU) addressed one of the core concepts of the European legal order – the non-discrimination principle enshrined in Article 18 of the Treaty on the functioning of the European Union (hereinafter: TFEU). Questions had to be answered: (1) Can the cumulative introduction of a vignette system and a vehicle-tax relief amount to an indirect discrimination? (2) Should political considerations be taken into account by the Court? (3) Is Article 259 TFEU a suitable tool to solve Member State disputes?
The case is particularly interesting due to the use of Article 259 TFEU, which Austria invoked to bring Germany before the CJEU. Article 259 TFEU is rarely used due to its blaming character of the alleged rule-breaker. Many Member States would prefer that the European Commission (hereinafter: EC), as guardian of the treaties, leads the investigations into an alleged breach of EU law by a Member States. However, Article 259 TFEU can be seen as a last resort measure by a Member State, if the Member State sees its interests or the interest of its citizens jeopardized.
In the case at hand, Austria brought the measure before the CJEU since many Austrians use the German highways due to proximity and transnational road travels through Germany. Austria based its claim on two characteristics. First, (i) the new motorway charge would be payable by all users of the motorway network in Germany and second (AG opinion, para. 5); (ii) owners of vehicles registered in Germany are granted a tax relief equal to the amount of the motorway charge (AG opinion, para. 5). Austria argued that the combination of these two measure factually amounts to an indirect discrimination of EU citizens when they use German highways.
This commentary presents the relevant political backgrounds leading up to this case, discusses the Court’s judgement and reflects upon the wider implications of Case C-591/17 for the development of an EU-wide vignette system for light vehicles, the use of Article 259 TFEU and the questions of political accords between the EC and a Member State. Continue reading