C-193/98

2. According to the order for reference, on 14 November 1996 Mr Pfennigmann, who The Amtsgericht did not accept the defen- is the proprietor of an agricultural business dant's submission that he was not required in Germany, drove a tractor (with a max- to pay any motorway charges because the imum permissible gross laden weight of 7 articulated vehicle combination (tractor 490 kg) and a trailer (with a maximum and trailer) driven by him at the time in permissible gross laden weight of 8 500 kg) question was not intended exclusively for along federal motorways A 93 and A 9 the carriage of goods but was primarily from the Alteglofsheim junction to the used in the operation of his agricultural Schwandorf junction and back without business. Instead, the court took the view that the sole decisive factor was whether, at the time of being used on the motorway, the * Original language: Spanish. 1 — Council Directive 93/89/EEC of 25 October 1993 (OJ 1993 motor vehicle or articulated vehicle combi- L 279, p. 32). nation was intended solely for the carriage

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of goods. It held that any other uses for III. Community law which it was intended, when not using the motorway, were irrelevant.

4. The Community provision of which the national court making the reference is seeking an interpretation is the fourth indent of Article 2 of Directive 93/89, which states:

II. The question referred for a preliminary ruling 'For the purposes of this Directive:

At the hearing on 19 May 1999, Mr According to the German Government, this Pfennigmann's representative, the represen- interpretation is corroborated by Arti- tative of the German Government, the cle 6(3) of the Directive, which allows representative of the Swedish Government Member States to apply reduced rates or and the representative of the Commission exemptions for vehicles which travel only submitted their oral observations. occasionally on the public roads of the Member State of registration and are used by natural or legal persons whose main occupation is not the carriage of goods. If such vehicles were already excluded from payment of user charges because the defi- nition in Article 2 used the term 'exclu- sively', it would not have been necessary to provide for the option of introducing exemptions. In any event, the Federal 6. Mr Pfennigmann argues that, in inter- Republic of Germany has not availed itself preting the meaning of the term 'vehicle' of that option and, consequently, even which appears in the fourth indent of vehicles which carry goods only occasion- Article 2 of Directive 93/89, it is not a ally are subject to payment of user charges specific isolated use which should be taken if they use a motorway within the meaning into account but the long-term use for of the Directive, provided that they are which it is intended, which must necessarily designed to carry goods. Otherwise, the be the carriage of goods by road. same motor vehicle could be subject to, or exempt from, payment of road charges depending on the subjective use to which it was put at any particular time by its owner. This would make it difficult to achieve one of the fundamental objectives of the Direc- tive, which is to distribute road infrastruc- ture costs fairly. The German Government concludes by saying that if an articulated vehicle, like a tractor and trailer, has a maximum permissible gross laden weight 7. The German Government maintains that the definitions given in Article 2 of Direc- of not less than 12 tons, it must be tive 93/89 must be interpreted in the light considered a vehicle within the meaning of the objectives of the Directive which are, of Directive 93/89 whether, at a given on the one hand, to levy a tax on certain moment, it is not carrying goods, or motor vehicles intended for the carriage of whether the goods it is carrying belong to goods and, on the other, to charge tolls and the driver, and it is irrelevant for this charges for using certain infrastructures. A purpose whether or not the owner of the vehicle cannot be classified as a motor vehicle uses it primarily in his agricultural vehicle intended exclusively for the carriage business. of goods if it does not use motorways within the meaning of the first indent of Article 2 of the Directive, since the pur- poses for which it is used on other roads have to be excluded from the definition.

9. The Swedish Government, favouring a literal interpretation of the provision, con- siders that only vehicles intended to be used exclusively for the carriage of goods should A — The request that the Court of justice be subject to payment of user charges, and interpret Article 2(1) of the Agreement that vehicles used for other purposes should concluded between some Member States be exempt. It believes that the underlying relating to the levying of user charges for intention of the provisions of the Directive, the use of certain road infrastructures by which is that the infrastructure costs should heavy goods vehicles be borne by the user, supports the inter- pretation that the definition of the vehicle which is subject to payment of user charges applies to traditional heavy goods vehicles, not vehicles intended for agricultural use, 11. Article 8 of Directive 93/89 provides in spite of the fact that they are sometimes that two or more Member States may used for the carriage of goods by road. cooperate in introducing a common system for user charges applicable to their terri- tories as a whole, and that other Member States may join the common system. On the basis of that provision, on 9 February 1994 the German, Belgian, Danish, Luxembourg and Netherlands Governments concluded the Agreement relating to the levying of user charges for the use of certain roads by 10. The Commission contends that the heavy goods vehicles 2 (hereinafter 'the terms of the fourth indent of Article 2 of Agreement'). Directive 93/89 do not permit an interpre- tation based on the actual purpose for which the vehicle is used. It believes that, in 2 — The Swedish Government, in the observations it has order to ascertain whether a 'vehicle' is submitted in these proceedings, states that, by a Protocol signed in Brussels in September 1997, it was granted the intended exclusively for the carriage of option of joining the Agreement. In December of that year, goods by road, irrespective of the purpose the Swedish Government approved the Protocol and the user charge imposed in the Agreement came into force in for which it is used in a particular instance, Sweden on 1 February 1998.

15. It is true that Article 2(1) of the Agree- ment provides that the definitions in Arti- cle 2 of Directive 93/89 apply to the Agreement, that the Oberlandesgericht is specifically seeking an interpretation of one of those definitions and that the interpreta- tion given by the Court in its judgment will 13. Article 177 of the Treaty grants the be applicable to it. However, the interpre- Court jurisdiction to give preliminary rul- tation of a provision of Directive 93/89 — ings on the interpretation of the Treaty and such as the fourth indent of Article 2 — on the validity and interpretation of mea- will be binding not only on the States which sures adopted by the Community. Although have signed the Agreement but also on all Article 8 of the Directive enables the Mem- the other States required to apply the ber States to cooperate in introducing a provision. common system for user charges, that does not mean that an agreement concluded between them on the basis of the Directive becomes part of Community law, which this Court has jurisdiction to interpret. 16. It must therefore be made clear that the reply to the question referred for a pre- 3 — Order of the Court of 12 November 1998 in Case C-194/98 Pörschke (not published in the ECR). liminary ruling will refer, solely and exclu- 4 — Order of the Court of 11 February 1999 in Case C-313/98 sively, to the interpretation to be given to Claasen (not published in the ECR). the fourth indent of Article 2 of Directive 5 — Order of the Court of 12 November 1998 in Case C-162/98 Hartmann [1998] ECR 1-7083. 93/89.

19. According to the explanatory state­ ment, the main objective of the Directive 18. This will be the first time that the Court is to eliminate distortions of competition has examined one of the provisions of between transport undertakings in the Directive 93/89 in preliminary ruling pro­ Member States. This calls for the simulta­ ceedings. That does not mean, however, neous harmonisation of levy systems and that it has never had the opportunity to the establishment of fair mechanisms for give a ruling concerning the Directive. In charging infrastructure costs to hauliers, fact, in its judgment of 5 July 1995 in which will be achieved in stages. Specifi­ Parliament ν Council, 6 it annulled the cally, the Directive confines the adjustment Directive for infringement of an essential of national levy systems to commercial procedural requirement, because the Coun­ vehicles of more than a certain gross laden cil had failed to consult the Parliament weight. again after introducing significant amend­ ments to the draft. In the same judgment the Court decided, in order to avoid a lack of continuity in the transport tax harmoni­ sation programme, to retain all the effects of the annulled Directive until the Council had adopted a new directive. The new directive has not yet been adopted. 7 20. Article 2 contains the definitions, for the purpose of applying the Directive, of the terms 'motorway', 'toll', 'user charges', 6 — Case C-21/94 [1995] ECR I-1827. and 'vehicle', the last of which is the subject 7 — On 13 November 1996 the Commission submitted to the of the question referred for a preliminary Council the proposal for the Directive concerning the application of taxes on commercial vehicles for the use of certain infrastructures (COM (96) 331 final — SYN 96/0182 (OJ 1997 C 59, p. 9). Point 7 of the explanatory statement specifies that the objective of the new directive is 8 — Case C-175/97 Commission ν France [1998] ECR I-963. to replace Directive 93/89. 9 — OJ 1998 C 234, p. 20.

24. I cannot agree with this interpretation, for two reasons. Firstly, because the vehi- cles for which the Member States may apply reduced rates or exemptions are listed in the provision and are divided into two categories: one the one hand, vehicles 22. The tolls and user charges system used for national and civil defence pur- differs from the taxation system in so far poses, by fire and other emergency services, as payment of the tax does not provide and by the police, and vehicles used for exemption from payment of tolls and user road maintenance, and on the other hand, charges when vehicles intended exclusively vehicles which travel only occasionally on for the carriage of goods travel on motor- the public roads of the Member State of ways, other similar roads, bridges, tunnels registration and are used by natural or legal and mountain passes. The tolls and user persons whose main occupation is not the charges must be imposed by the Member carriage of goods. I believe that the latter

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category will, basically, comprise lorries goederenvervoer over de weg'; in Danish, used in enclosed industrial installations, 'som udelukkende er beregnet til vejgod- such as mines or quarries. stranspot'; in Greek, 'που προορίζονται αποκλειστικά για οδικές εμπορευματικές μεταφορές'; in Swedish, 'uteslutande für godstransporter på väg'; and, in Finnish, 'joka on tarkoitettu ainoastaan maantei- dentavarakuljetukseen'. The terms used in all the official languages indicate, therefore, that these must be vehicles used exclusively for the carriage of goods by road.

25. If I interpret the fourth indent of Article 2 of Directive 93/89 literally, I notice that the different language versions all agree that the motor vehicle or articu- lated vehicle combination, within the meaning of the Directive, are those which, in Spanish, are: 'destinados unicamente al transporte de mercancías por carretera'; in 26. Having regard to the objectives of French, 'destinés exclusivement au trans- Directive 93/89 and after systematically port de marchandises par route'; in Italian, studying its provisions and comparing the 'adibiti esclusivamente al trasporto di merci versions of the fourth indent of Article 2 in su strada'; in Portuguese, ''exclusivamente the different languages, I have to conclude destinados ao transporte rodoviário de that, in order to determine whether a mercadorias'; in English, 'intended exclu- vehicle is intended exclusively for the sively for the carriage of goods by road' ; in carriage of goods by road, the general German, 'die ausschließlich für den intended use of the vehicle must be taken Güterkraftverkehr bestimmt sind'; in into account, not the purpose for which it is Dutch, 'uitsluitend bestemd is voor het used in the particular instance.

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VI. Conclusion

27. In view of the foregoing, I suggest that the Court should give the following reply to the question referred to it by the Oberlandesgericht Köln:

In order to determine whether a motor vehicle or an articulated vehicle combination is intended exclusively for the carriage of goods by road within the meaning of the fourth indent of Article 2 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, the general intended use of the vehicle must be taken into account, not the purpose for which it is used in a particular instance.