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permissible gross laden weight of not less 5. Directive 1999/62, which replaces Direc- than 12 tonnes. tive 93/89 annulled by the Court, was adopted by the Council on 17 June 1999 and, pursuant to Article 13 thereof, entered into force on 20 July 1999. Under Article 12 thereof, it was to be implemented by 1 July 2000. Article 7(4), (9) and (10) of Directive 4. Article 7 of Directive 93/89 provides: 1999/62 — the content of paragraphs 4 and 9 being identical to Article 7(b) and (h) of Directive 93/89 — provides:

'Member States may maintain or introduce tolls and/or introduce user charges in '4. Tolls and user charges may not dis- accordance with the following conditions: criminate, directly or indirectly, on the grounds of the nationality of the haulier or the origin or destination of the vehicle.

(b) Without prejudice to Article 8(2)(e) and Article 9, tolls and user charges 9. The weighted average tolls shall be may not discriminate, directly or indi- related to the costs of constructing, oper- rectly, on the grounds of the nationality ating and developing the infrastructure of the haulier or of origin or desti- network concerned. nation of the vehicle;

10. Without prejudice to the weighted average tolls referred to in paragraph 9, Member States may vary the rates at which tolls are charged according to:

7. The plaintiff in the main proceedings is Rieser Internationale Transporte G m b H (hereinafter 'Rieser'), a transport undertak- ing established in Austria. It operates heavy goods vehicles with a maximum permis- 6. In its judgment of 26 September 2000 5 sible gross laden weight of not less than 12 the Court declared that, 'by raising, on tonnes and with more than three axles in 1 July 1995 and 1 February 1996, the tolls international road haulage and in doing so for the full itinerary on the Brenner motor- makes regular use inter alia of the Brenner way, a transit route through Austria used motorway which is subject to tolls. predominantly by goods vehicles of a maximum permissible gross laden weight of not less than 12 tonnes registered in other Member States, but not for part itineraries on that motorway, the great majority of the users of which are vehicles of a maximum permissible gross laden weight of not less than 12 tonnes used for 8. In the light of the judgment which the the same type of transport and registered in Court gave in the infringement proceedings Austria', the Republic of Austria had failed in Commission v Austria, 6Rieser is seeking to fulfil its obligations under Article 7(b) of from the operator of the Brenner motor-

5 — Case C-205/98 Commission v Austria [2000] ECR I-7367. 6 — Cited in footnote 5 above.

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way, the Autobahnen- und Schnellstraßen Directive 1999/62. Secondly, the Oberster Finanzierungs-AG (hereinafter 'Asfinag'), Gerichtshof also considers — contrary to partial repayment of the tolls for the use the view of the lower courts — that the of the full itinerary of the Brenner motor- direct effect of the prohibition on discrimi- way which were paid during the period nation laid down in Article 7(b) of Direc- between 1 January 1997 and 31 July 2000, tive 93/89 and Article 7(4) of Directive in its view in breach of Community law. 1999/62 is also doubtful. Thirdly, it con- siders that clarification is necessary regard- ing the connection between annulled Direc- tive 93/89 and the effects thereof, on the one hand, and Directive 1999/62, which it replaced on 17 June 1999 but which did not have to be implemented until 1 July 2000, on the other.

Are Article 7(b) and (h) of Directive 93/89 and Article 7(4) and (9) of Directive 1999/62 directly applicable, (4) If the answer to both Questions 1 and 2 in accordance with the Court of Jus- should be "Yes": tice's case-law, so that they may be relied on in the calculating of a toll consistent with those Directives in respect of vehicles, with more than three axles, used for the carriage of goods for the full itinerary of the Austrian Brenner motorway, even if the Directives have not been trans- posed, or have been transposed imper- (a) Is the judgment of the Court of fectly, into Austrian law? Justice in Case C-21/94 Parliament v Council, cited above, in which it was held that the effects of Direc- tive 93/89, which it annulled, were to be preserved until the Council should have adopted a new direc- tive, to be interpreted as meaning (3) If the answer to Question 2 should be that the effects are to be preserved "Yes": until the M e m b e r States have transposed the new directive or until the period prescribed for transposition has expired?

(a) H o w and by reference to what parameters is the authorised toll for a single journey on the full itinerary to be calculated?

(b) If the answer to Question 4(a) should be " N o " : are the Member States under an obligation during the period from 17 June 1999 to (b) May Austrian hauliers too rely on 1 July 2000 to have regard to the the fact that the (excessive) rate for new Directive: must they for the full itinerary discriminates example observe any effects in against them in comparison with advance?'

14. Since the national court has not sub- mitted a question concerning the interpre- tation of Articles 82 EC and 86 EC, there is

17. By contrast, Asfinag takes the view 7 — Case 44/65 Singer [1965] ECR 965, at 970 and 971; Case that, according to the Court's case-law, it is C-412/96 Kainuun Liikenne Oy and Others [1998] ECR not required, when concluding contracts, to I-5141, paragraph 23; and Case C-402/98 ATB and Others [2000] ECR I-5501, paragraph 29. observe the directly effective provisions of

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18. In the view of the Commission, Asfinag must be ascribed, in functional terms, to 2. Legal assessment the Austrian State and thus be regarded as a person to which Directive 93/89 and Direc- tive 1999/62 are addressed. It is true that Asfinag is a joint stock company governed by private law which is bound to the Republic of Austria only contractually in such a way that its board is not subject to 19. As regards the first question referred direction and that it levies the toll in its for a preliminary ruling, it should first be own name and on its own account and does noted that under the division of functions not pass it on to the Republic of Austria. provided for by Article 234 EC, it is, However, Asfinag is covered by the rel- according to established case-law, for the evant provisions of the directives. The national court to apply the rules of Com- Republic of Austria is the defendant's sole munity law to an individual case. 8 Con- shareholder and is entitled under the sequently, the Court cannot consider licence concluded with Asfinag to control whether — as is set out in the ques- all measures taken by Asfinag and its tion — 'the defendant', that is to say subsidiaries and to require at any time Asfinag, is required to observe the directly information on its activities. It has the right applicable provisions of directives in the to set objectives. Asfinag has an obligation light of the Court's case-law concerning the to it to draw up an annual maintenance so-called 'functional concept of the State'. plan and submit the relevant costs account to the federal government. Furthermore, it must each year and in good time submit to 8 — Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11, and Case C-40/01 Ansul the federal g o v e r n m e n t the planning [2003] ECR I-2439, paragraph 45.

23. According to established case-law, the starting point for this extension of the functional concept of the State is that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. 11 However, when applying national law, 2 1 . Consequently, it is necessary to exam- whether adopted before or after the direc- ine whether a body such as Asfinag may — tive, the national court having to interpret regardless of its legal personality as a legal that law must do so, as far as possible, in person governed by private law — be cat- the light of the wording and the purpose of egorised, in functional terms, as a public the directive so as to achieve the result it authority against which the provisions of has in view and thereby comply with the the abovementioned directives may be third paragraph of Article 189 of the EC relied on directly. T r e a t y (now the third p a r a g r a p h of Article 249 EC). 12

25. Accordingly, the Court has also ruled acting. Whenever in fact the State, directly that a body or a State undertaking, what- or indirectly, stands behind an institution ever its legal form, which has been made or undertaking and controls it, then it is no responsible, pursuant to a measure adopted longer a private individual. 15 by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules appli- cable in relations between individuals is included in any event among the bodies against which the provisions of a directive 28. In this context it is necessary to assess capable of having direct effect may be below, on the one hand, the State's direct relied upon. 14 m a n a g e m e n t , control and supervisory powers vis-à-vis an undertaking governed by private law and, on the other, the possibilities for indirectly intervening and exercising influence which arise from the structural link between the undertaking and the body governed by public law which stands behind it economically. 26. The problem could now be whether such (vertical) direct effect of a directive can exist also vis-à-vis a legal person governed by private law, which has been established by the State and operated by it as sole shareholder and which has had transferred to it — without complete State supervision — tasks to be performed on its 29. According to the principles set out own responsibility and on its own account above, the important factor as regards the which were previously carried out by the State's direct management, control and State itself as public tasks. supervisory powers is not necessarily whether an undertaking or other private body is formally subject to complete State supervision. Objectives laid down by law or individual powers of the State granted by agreement can also restrict the legal scope for manœuvre available to the under- taking to the extent that they are, in terms 27. As regards this assessment, I would like of their effects, equivalent to complete to recall my Opinion in Collino and Chiap- supervision. Where, for example, the State però^ according to which the sanction of is entitled to inspect any measures, includ- direct effect vis-à-vis the Member States ing planning measures, taken by the under- only exercises its full impact if it affects the taking and its subsidiaries, to set objectives State in all instances, regardless of the and to require at any time information on specific legal form in which the State is its activities and its subsidiaries, the legal

30. As regards the possibilities of exercising indirect influence, account should be taken of whether the State, which stands behind the undertaking economically, is able, inside the company, to guide in accordance 33. The objective of the directives at issue with its own will the areas of freedom in this case is to harmonise the levying of which, in law, outwardly formally exist, as charges for the use of certain infrastruc- is probably the case where there is a sole tures in the Member States. This objective shareholder. would be jeopardised if a Member State were able to evade the effects of the directives by organising under private law the relevant areas of responsibility conven- tionally assigned to the public adminis- tration. Accordingly, an undertaking gov- erned by private law to which these tasks have been transferred — through State act of organisation or legal agreement —, and which satisfies the criteria of the broad definition of the State laid down by the 31. All the possibilities for controlling and Court, cannot be exempt from the direct exercising influence directly and indirectly, effects of these directives. as can be put into effect in respect of an undertaking such as Asfinag, justify regard- ing it as belonging, in practical terms, to the 16 — See, to this effect, the cases cited in footnotes 13 and 14 State. above.

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34. Finally, it should be noted that, for the trative, managerial or supervisory purposes of Article 1(b) of Council Direc- b o a r d , m o r e t h a n half of whose tive 93/37/EEC of 14 June 1993 concerning members are appointed by the State, the coordination of procedures for the regional or local authorities or by other award of public works contracts, 17 Asfinag bodies governed by public law.' must be regarded as a contracting auth- ority. 1 8 Under this provision, a contracting authority is, in addition to the State itself, any body governed by public law,

36. Therefore, I propose that the answer to — having legal personality, and the first question referred for a preliminary ruling should be that when concluding contracts with road users a legal person governed by private law is also required to observe the directly effective provisions 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 — financed, for the most part, by the charges for the use of certain infrastruc- State, or regional or local authorities, tures and of Directive 1999/62/EC of the or other bodies governed by public law, European Parliament and of the Council of or subject to management supervision 17 June 1999 on the charging of heavy by those bodies, or having an adminis- goods vehicles for the use of certain infra- structures, where the State has transferred to that legal person the task of levying tolls 17 — OJ 1993 L 199, p. 54. for the use of public infrastructures and it 18 — See Case C-410/01 Fritsch, Chiari & Partner and Others has direct or indirect control of that legal [2003] ECR I-6413, and my Opinion in Case C-421/01 Traunfellner [2003] ECR I-11941 and I-11944. person.

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C — The second and third questions 39. By contrast, Asfinag takes the view that Article 7(b) and (h) of Directive 93/89 and Articles 7(4) and (9) of Directive 1999/62 do not satisfy the requirements for direct effect.

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on grounds of their nationality and the Directive 93/89. Article 7(9) of Directive directives on transport infrastructure costs 1999/62 takes as a basis 'weighted average are not intended to lay down provisions on tolls' and not merely 'tolls'. Article 7(10) of competition between hauliers within the Directive 1999/62 provides for variations same Member State. according to vehicle emission classes and time of day and Article 9(2) of Directive 1999/62 provides for the attribution of an (unspecified) percentage to environmental protection and the balanced development of transport networks. The calculation of the permissible rate of the toll for certain vehicles is thereby rendered even more difficult. 42. N o r does Article 7(h) of Directive 93/89 have direct effect. It provides merely that toll rates are to be related to the costs of constructing, operating and developing the infrastructure network concerned but contains no provisions regarding the calcu- lation of such costs and the division thereof 44. Directive 93/89 grants no individual into individual vehicle categories, itiner- rights even in accordance with its protec- aries and periods. It is impossible, on the tive purpose. Its objective of eliminating basis of these rules laying down only a distortions of competition is not adversely vague objective, to put even an approxi- affected by the setting of different tariffs for mate figure on the permissible toll. Nor did the full itinerary and part itineraries. the Court specify the method of calculating Neither Directive 93/89 itself nor the legal the costs of the infrastructure network in bases therefor in the EC Treaty reveal any Commission v Austria. Finally, there are legislative objective justifying the annul- clearly several methods of calculation that ment of the toll contracts which it has are compatible with Article 7(h) of Direc- concluded with the users of the Brenner tive 93/89. However, since there is a great motorway. degree of latitude in this case, Directive 93/89 cannot be directly effective.

46. The Austrian Government also con- and (b) of Directive 1999/62). According to tends that the contested provisions of the the wording of the final sentence of directives do not have direct effect and Article 7(10) of Directive 1999/62, such argues — in a manner similar to Asfi- variation in tolls charged with respect to nag — that there is as little definition of vehicle emission classes or time of day must the three cost items referred to therein — be proportionate to the objective pursued. constructing, operating and developing — However, Article 7(9) of Directive 1999/62 as there is of the term 'infrastructure fails to provide any definition or detailed network concerned'. Consequently, it is information on the possible variations. completely unclear which costs are to be subsumed under these undefined terms and thus how they could enter into the cor- responding calculation of the costs. Nor can the Member States' already broad degree of latitude be restricted since the toll rate for the individual motorway user to be calculated pursuant to Article 7(h) of Directive 93/89 must merely be 'related' to these cost items and does not have to correspond to them precisely. Furthermore, no provisions are laid down concerning the 48. In the absence of a mathematical result division of the costs into individual user in accordance with Article 7(h) of Directive categories. Finally, Article 7(h) contains no 9 3 / 8 9 and Article 7(9) of Directive information on a method of calculation 1999/62, a toll rate calculated accordingly which is to be applied to produce a toll for cannot be examined in the light of the the individual road user which is consistent prohibition on discrimination laid down in with Directive 93/89. Community law. The direct effect of Article 7(b) of Directive 9 3 / 8 9 a n d Article 7(4) of Directive 1999/62 must be rejected on account of the lack of precise- ness of Article 7(h) of Directive 93/89 and of Article 7(9) of Directive 1999/62.

50. As regards Question 3(a), the Republic 52. By contrast, the Commission takes the of Austria submits, in the alternative, that view that the prohibition on discrimination Article 7(h) of Directive 93/89 merely laid down in Article 7(b) of Directive 93/89 names three parameters which are not and Article 7(4) of Directive 1999/62 specified in detail, that is to say the costs requires no further indications for it to be of constructing, operating and developing directly effective. The Court has already the infrastructure n e t w o r k concerned, classified a prohibition on discrimination as which are to be used as criteria for unconditional and sufficiently precise in the establishing the toll rate. However, there case of HI. 20 are no indications as to how these costs are to be calculated and which cost com- ponents the three abovementioned items actually include. In its judgment in Com- mission v Austria the Court itself also made no pronouncement, based on a calculation of infrastructure costs, as to the rate of the Brenner toll consistent with the Treaty.

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54. On the other hand, Article 7(h) of (b) The prohibition on discrimination Directive 93/89 and Article 7(9) of Direc- under Article 7(b) of Directive 93/89 and tive 1999/62 cannot be said to have direct Article 7(4) of Directive 1999/62 effect. Although the requirement that the toll be related to costs laid down therein gives the Member States some guidance for calculating tolls, they have, provided that they comply with this requirement, such a broad degree of latitude that the specific (i) Direct effect means of calculation does not have the unconditional or sufficiently precise char- acter necessary for direct effect. Con- sequently, there is likewise no need to answer Question 3(a). 56. As the Court has consistently held, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and suffi- ciently precise, they may be relied upon 2. Legal assessment before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the direc- tive correctly. 22 (a) Preliminary remarks on the class of vehicles covered by the directive

60. In this regard it should be noted that in various fields of Community law the Court has regarded prohibitions on discrimi- nation contained in directives as directly effective. Accordingly, it has consistently held that the prohibition on (direct or indirect) discrimination based on sex as regards access to employment and working conditions and social security is sufficiently precise and unconditional to allow individ- 59. It must be examined whether the other uals to rely upon it before the national conditions for the direct effect of the courts in order to preclude the application prohibition on direct or indirect discrimi- of any national provision inconsistent with nation based on the origin or destination of it. 26 the vehicle laid down in Article 7(b) of Directive 93/89 and Article 7(4) of Direc- tive 1999/62 are satisfied. The prohibition on discrimination based on nationality, which is also laid down in these provisions, is not relevant in the present case. It is true that in Commission v Austria 25 the Court held that the structure of the charges 61. As regards the award of public service involves discrimination based on national- contracts, the Court has ruled that a service ity contrary to Article 7(b) of Directive provider can rely on the provisions of a 93/89. However, as an Austrian undertak- directive laying down a general prohibition ing, Rieser does not belong to the category on discrimination if it is clear from an of persons placed in a less favourable individual examination of their wording position. Therefore, the following examin-

that they are unconditional and sufficiently it must be observed that these provisions clear and precise. 27 preclude, generally and unequivocally, any discrimination based on the origin or destination of the vehicle. The supposed difficulties in establishing the itineraries to be compared, cited by the national court, Asfinag and the Austrian Government, do not prevent the prohibition on discrimi- nation from being precise. 62. Finally, the Court recently held that the prohibition laid down in Article 9(2) of Directive 97/13/EC of the European Parlia- ment and of the Council of 10 April 1997 on a common framework for general auth- orisations and individual licences in the field of telecommunications services 2 8is directly effective. 29 65. There can be discrimination if different rules are applied to comparable situations or the same rule is applied to different situations. In any event, the application of a prohibition on discrimination therefore requires a comparison of different factual situations and the rules which govern them. 63. In these circumstances there is in prin- It is primarily for the body applying the law ciple nothing to prevent direct effect being and not the legislature to make this attributed also to the provisions of direc- comparison. tives which prohibit discrimination based on the origin or destination of the vehicle, provided that they satisfy the minimum requirements of unconditionality and pre- ciseness.

67. In Commission v Austria 30 the Court condition as regards the scope thereof. The compared the toll per kilometre for follow- rule contained in Article 9 is also intended ing the full itinerary and the toll per merely to leave open to the Member States kilometre for following certain part itiner- the possibility of excluding border areas aries. In doing so it took account only of from the scope of the directive in accord- those part itineraries that link localities ance with the procedure laid down in the which are of economic significance and Council decision of 21 March 1962. How- thus took into consideration a further ever, it is clearly not intended to limit or criterion for the comparability of the itin- make conditional the application of the eraries in addition to the origin and desti- principle of equal treatment within its nation of the vehicle. It is only on the part scope ratione materiae and therefore it itineraries selected by the Court that there likewise does not prevent the conclusion is heavy goods traffic similar to that on the being drawn that the prohibition on dis- full itinerary. This criterion is consistent crimination has direct effect. 3 3 with the spirit and purpose of the directive, namely to eliminate distortions of compe- tition between transport undertakings. 3 1

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7 1 . However, this argument cannot be (ii) May Austrian undertakings also rely on accepted. In this respect it should be noted the prohibition on discrimination? (Ques- that the granting of a margin of latitude tion 3(b)) and discretion and a power of assessment in transposing a directive does not preclude the direct effect thereof if the objective of the directive is set out in sufficiently precise terms. Even where a provision of a directive leaves the Member States a degree of latitude as regards the form and methods for achieving the result, it can still prescribe unconditionally the result to be achieved, 74. According to the wording of the provi- for example the abolition of any provisions sion in question, discrimination on the contrary to the principle of equal treat- grounds of the nationality of the haulier ment. 3 4 or of origin or destination of the vehicle is not permitted. Whereas the first alter- n a t i v e — n o d i s c r i m i n a t i o n on t h e grounds of nationality — clearly has in mind the protection of foreign hauliers, the s e c o n d — n o d i s c r i m i n a t i o n on t h e grounds of origin or destination of the vehicle — reveals no such (limited) pro- 72. Accordingly, it can be argued in the tective purpose. present case that the fact that the Member States are left a considerable degree of discretion and variation in fixing a toll rate that complies with the directive — a point on which all the parties concerned agree — cannot deny direct effect to the sufficiently precise and unconditionally worded pro- hibition on discrimination.

79. In so far as an individual can rely on directly effective provisions of the directive, contrary national provisions are ineffective. The absence of any further need to pay the excessive toll is not the only consequence. In order to ensure the practical effect of the prohibition on discrimination, the amounts already paid must also be reimbursed in so 77. It therefore follows that Austrian haul- far as they exceed the amounts paid by the iers who transit the full itinerary of the favoured group, that is to say in this case Brenner motorway and are thereby placed the users of comparable itineraries. at a disadvantage compared with certain users of part itineraries can rely on the second alternative of the prohibition on discrimination laid down in Article 7(b) of Directive 93/89.

81. The Court has already ruled to this 83. In that respect it should be noted that it effect on several occasions in connection is the settled case-law of the Court that the with charges that have been levied in nature of a tax, duty or charge must be breach of the prohibition on discrimi- determined by the Court, under Commu- nation. 41 However, each of those cases nity law, according to the objective char- concerned breaches of prohibitions on dis- acteristics by which it is levied, irrespective crimination arising directly from the provi- of its classification under national law. 45 sions of the Treaty. It is not possible to see any reason why a breach of a directly effective prohibition on discrimination laid down in a directive should be treated any differently in terms of its others con- sequences. Furthermore, the Court has recognised an entitlement to compensation 84. The same must apply where the con- also in the case of breaches against different sideration for the use of a State service is kinds of directly effective provisions of levied in the form of a contractual user directives. 42 remuneration as a result of the privatisation of the area of administration concerned but must be classified as a public (toll) fee in terms of its function or replaces such a fee. The view set out in the answer to the first question referred for a preliminary ruling, namely that a Member State may not evade its obligations under Community law by privatising or farming out particular areas 82. An entitlement to reimbursement of of public administration, must also apply to payments made but not due exists also the reimbursement of charges. where they have been levied in breach of Community law by a formally private, but State-controlled undertaking. 43 In particu- lar, it is not possible to raise against such an entitlement the argument that the amounts are levied not by public authorities as charges but as remuneration pursuant to 85. According to the Court's case-law, an agreement of private law and that the where the Member States or the legal Court's case-law concerning the reimburse- persons and bodies covered by the broad ment of charges in breach of Community concept of the State are in principle law cannot therefore be applied. 44 required to reimburse charges levied in breach of directly effective Community law, in the absence of Community rules 41 — See, for example, Barra, cited in footnote 39 above. See also Case 199/82 San Giorgio [1983] ECR 3595, para- governing the matter it is for the domestic graph 12, and Case C-242/95 GT-Link [1997] ECR legal system of each Member State to lay I-4449, paragraph 58. 42 — See, for example, BP Supergas, cited in footnote 39 above. down the detailed procedural rules govern- 43 — See, similarly, GT-Link, cited in footnote 41 above, paragraph 59, in respect of the duty of a public undertak- ing to reimburse charges. 44 — See, to this effect, the submissions of the Republic of 45 — See, inter alia, Joined Cases C-197/94 and C-252/94 Austria in parallel case C-257/02 Stuij en de Man, Bautiaa and Société française maritime [1996] ECR I-505, reproduced in the order for reference made by the Oberster paragraph 39, and Case C-294/99 Athinaïki Zytbopoiïa Gerichtshof (p. 10). [2001] ECR I-6797, paragraph 27.

90. However, the question whether an 87. In that respect the question arises as to indirect charge has or has not been passed how account is to be taken of the possibil- on in each case is a question of fact to be ity of the person paying the charge passing determined by the national court. The the costs on to a third party. This problem actual passing-on of such taxes, either in arises in the present case because according whole or in part, depends on various to the order for reference, Rieser claims factors in each commercial transaction that it was unable to pass the increase in the 48 — See pages 9 and 13 of the order for reference. 49 — Case 68/79 Just [1980] ECR 5 0 1 ; Case 61/79 Denkavit 46 — Case 33/76 Reive [1976] ECR 1989, paragraph 5; Case italiana [1980] ECR 1205; San Giorgio, cited in footnote C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12; 41 above, paragraph 13; Joined Cases C-192/95 to Joined Cases C-279/96 to C-281/96 Ansaldo Energia and C-218/95 Comateb and Others [1997] ECR I-165, para- Others [1998] ECR I-5025, paragraph 16; and Joined graph 2 1 ; and GT-Link, cited in footnote 41 above, Cases C-216/99 and C-222/99 Prisco and CASER [2002] paragraph 58. ECR I-6761, paragraph 69 et seq. 50 — Comateb and Others, cited in footnote 49 above, para- 47 — Cited in footnote 5 above, paragraphs 72 to 75. graph 22.

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91. In addition, it should be borne in mind 93. I concur with this view. The provisions that even where it is established that the merely give the Member States certain burden of the charge has been passed on in parameters (construction, operation and whole or in part to the customer, repay- development of the road network or infra- ment to the payer of the charge of the structure network concerned) by which to amount thus passed on does not necessarily establish the toll rate without defining these entail his unjust enrichment. The payer of terms or otherwise limiting the degree of the charge may also have suffered damage latitude left to the Member States in as a result of the very fact that he has establishing the means of calculating the passed on the charge levied in breach of toll rate. The absence of preciseness in the Community law, because the increase in rules is evident not least from the fact that the price of the product brought about by the provisions of both directives require passing on the charge has led to a decrease only that the toll rates be 'related to' the in sales. 5 3 abovementioned cost parameters and not that they strictly observe them or the like. Therefore — apart from the abovemen- 51 — Advocate General Geelhoed examines in detail the com- tioned b e n c h m a r k s — Article 7(h) of plex economic issues involved in his Opinion in Commis- sion v Italy, cited in footnote 40 above, points 72 to 79. Directive 93/89 and Article 7(9) of Direc- 5 2 — J o i n e d Cases 331/85, 376/85 and 378/85 Bianco and tive 1999/62 leave the Member States a Girard [1988] ECR 1099, paragraph 17. 53 — As the Court stated in Comateb and Others, cited in choice as regards the organisation of the footnote 49 above, paragraph 3 1 , with reference to method of calculation used to calculate a point 23 of the Opinion of Advocate General Tesauro in that case. toll that complies with the directive.

96. Directive 1999/62 was adopted on — Austrian hauliers too can rely on 17 June 1999 and therefore, according to Article 7(b) of Directive 93/89 and the clear wording of the abovementioned Article 7(4) of Directive 1999/62. judgment, Directive 93/89 ceased to have effect on that date and consequently the rules on tolls could not have infringed this directive as from 17 June 1999. Directive 1999/62 could have effects in advance before the period prescribed for transposi- — Article 7(h) of Directive 93/89 and tion had expired. However, in the period Article 7(9) of Directive 1999/62 are from 17 June 1999 to 1 July 2000 (the end not directly effective as regards calcu- lating a toll that complies with the directives for vehicles with a maximum 54 — Cited in footnote 4 above, paragraph 32.

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99. On the other hand, it could not be concluded that there was direct effect before the period prescribed for transposi- tion expired. Such an interpretation of the 102. In this context, the two parts of the advance effect of a directive would ulti- fourth question referred for a preliminary mately lead to a circumvention of the ruling essentially seek to ascertain the time fundamental notion underlying the two-tier until which Directive 93/89 had direct nature of the directive, that is to say the effect in favour of Rieser and the time need for a legislative measure of Commu- from which, if a p p r o p r i a t e , Directive nity law and national law. 1999/62 had similar effects.

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106. However, the spirit and purpose of maintaining the effects of an annulled act is to prevent a legal void arising before a new 104. An order that the effects of Directive act has replaced the annulled act. This is 93/89 be preserved until Directive 1999/62 ensured only where the annulled act con- had been transposed appears to be entirely tinues to have effect until the new act can impossible for various reasons. In that case produce effects. Since Directive 1999/62 both the directives would be in force during did not have effect until it entered into the period prescribed for transposing Direc- force, this order by the Court must be tive 1999/62. Where the directives differed construed as meaning that Directive 93/89 from one another, it would be unclear as to continued in force until this time, that is to which requirements the Member States say until 24.00 hours on 19 July 1999. 5 7 If were to satisfy during this period. Fur- 'adoption' of the new act within the thermore, the end of the effect of Directive meaning of Parliament v Council were to 93/89 would depend on action by the Member States and would occur on a 56 — See Parliament v Council, cited in footnote 4 above, different date depending on the Member paragraph 2 of the operative part. State concerned. 5 7 — Under Article 4(2) of Regulation (EEC, Euratom) N o 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time-limits, entry into force of acts fixed at a given date is to occur at the beginning of the first hour of the day falling on that date. 55 — Cited in footnote 4 above, paragraph 2 of the operative Consequently, Directive 1999/62 entered into force at 0.01 part. hours on 20 July 1999.

109. During this period the Member States 59 — Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph are required to transpose the directive into 18, and Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 45. See also Case C-491/01 national law and also to refrain from British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 32 et seq., and taking any measures liable seriously to Opinion of Advocate General Geelhoed in that case, ECR I-11461, point 4 3 . 60 — Cited in footnote 59 above. See also Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 58 et seq. 58 — Under Article 12(1), the Member States are required to 61 — See the Opinion of Advocate General Jacobs in Inter- bring into force the laws, regulations and administrative Environnement Wallonie, cited in footnote 59 above, provisions necessary to comply with the directive by 1 July point 40 et seq. The Court found that such a case existed in 2000. ATRAL, cited in footnote 60 above.

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does not render the subsequent transposi- 114. Nevertheless, it is not clear to what tion of the directive considerably more extent an individual can rely on a directive difficult since the tariff could have been during the period prescribed for transposi- changed again in the short term. A par- tion where a Member State has already ticular transitional rule may have been transposed it into national law but has necessary only in respect of multiple-trip done so incorrectly. cards.

113. However, the Austrian provisions on 116. In his Opinion in Hansa Fleisch Ernst the tariffs for the Brenner toll leave no Mundt 64 Advocate General Jacobs con- scope for an interpretation which precludes sidered in detail the question whether or any discrimination. not an individual may, where a decision addressed to a Member State has already been implemented but implemented incor- 62 — Case C-106/89 Marleasing [1990] ECR I-4135, paragraph rectly, rely directly on that decision during 8, Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20, Faccini Dori, cited in footnote 11 above, the period prescribed for implementation paragraph 26, and Joined Cases C-240/98 to C-244/98 Ocèano Grupo Editorial and Salvat Editores [2000] ECR laid down therein. Although that case I-4941, paragraph 30. 63 — Opinion of Advocate General Jacobs in Case C-156/91 Hansa Fleisch Ernst Mundt [1992] ECR I-5567, at I-5578, points 23 and 24. 64 — Cited in footnote 63 above, point 19 et seq.

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relates to a decision, his observations on (c) Infringement of the directly effective direct effect are also applicable to direc- provisions of the Treaty tives.

66 — See, inter alia, Case C-334/95 Krüger [1997] ECR I-4517, 65 — Hansa Fleisch Ernst Mundt, cited in footnote 63 above, paragraph 22, and Case C-88/99 Roquette Frères [2000] paragraph 20. ECR I-10465, paragraph 18.

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67 — C a s e 13/83 Parliament v Council [1985] ECR 1513, 71 — See, inter alia, Case C-266/96 Corsica Ferries France paragraph 63; see also Case 4/88 Lambregts Transport- [1998] ECR I-3949, paragraph 56; Joined Cases C-369/96 bedrijf [1989] ECR 2583, paragraph 14. and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33; Case C-205/99 Analir and Others [2001] 68 — See also my Opinion in Case C-70/99 Commission v ECR I-1271, paragraph 2 1 ; and Joined Cases C-430/99 Portugal [2001] ECR I-4845, at I-4847, paragraph 27. and C-431/99 Sea-Land Service and Nedlloyd Lijnen 69 — O] 1992 L 95, p. 1. [2002] ECR I-5235, paragraph 32. 70 — See the second recital in the preamble to Regulation 72 — Case C-381/93 Commission v France [1994] ECR I-5145, N o 881/92. paragraph 17.

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124. In accordance with this principle, the porting goods in transit, regardless of freedom to provide services may be relied where they are established. on also by an undertaking against the State in which it is established where the services are provided to recipients established in another Member State. 7 3

127. Since the discriminatory rules on tolls cannot be justified either by overriding reasons relating to the public interest or by other reasons, 7 4they probably consti- tute an unlawful restriction on the freedom to provide services under Article 49 EC. 125. Application of the freedom to provide services in connection with rules on the motorway toll is not precluded by the adoption of Directives 93/89 and 1999/62 which lay down special rules in this regard. The effects of the former directive ceased on 20 July 1999 and the provisions of 128. An Austrian road haulier such as Directive 1999/62 had no direct effect Rieser may, in compensation proceedings, before the end of the period prescribed for rely on this provision of primary Commu- transposition, as stated above. nity law which is directly effective — in the period between 20 July 1999 and 30 June 2000.

(1) When concluding contracts with road users a legal person governed by private law is required to observe the directly effective provisions 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 and of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures, where the State has transferred to that legal person the task of levying tolls for the use of public infrastructures and it has direct or indirect control of that legal person.

(2) The prohibition on discrimination on grounds of the origin or destination of the vehicle laid down in Article 7(b) of Directive 93/89 and Article 7(4) of Directive 1999/62 is directly effective. Undertakings which have paid for following the full itinerary using vehicles with a maximum permissible gross laden weight of not less than 12 tonnes a higher tariff per kilometre than users of economically comparable part itineraries can rely on the prohibition on discrimination and demand reimbursement of the toll levied in excess.

(3) Austrian hauliers too can rely on Article 7(b) of Directive 93/89 and Article 7(4) of Directive 1999/62.

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(4) Article 7(h) of Directive 93/89 and Article 7(9) of Directive 1999/62 are not directly effective as regards calculating a toll that complies with the directives for vehicles with a maximum permissible gross laden weight of not less than 12 tonnes used for the carriage of goods on the full itinerary of the Austrian Brenner motorway.