The god of free trade: why Austria cannot stop big lorries from using its motorways

21 January 2012 by David Hart KC

C-28/09, European Commission v. Austria, 21 December 2011 – read judgment 

Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.

The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?

A member state may derogate from these overarching economic principles by invoking Article 30 of the Treaty (Art 36 TFEU) , under which a prima facie infringement of the free movement rules can be justified on the basis of the protection of human health and life or protection of the environment. You might not have thought that this would cause too much problem for the justifying member state, given that the law was designed to mitigate air pollution which is a significant cause of disease, so it ticks two of the Article 30 boxes in one, and is an EU law enforced by the self-same Commission And it was no problem until one got to the requirement that “the measures in question are proportionate to the objective sought“. English lawyers have become used to the principle of proportionality as a slightly beefed up version of Wednesbury unreasonableness, but still with a reasonably wide area of discretion afforded to the decision-maker. But poke the great god of free trade, and a much fiercer and more demanding version of the principle emerges, red in tooth and claw. Derogate from free movement, at your peril.

Austria’s prohibition was phrased in a quite subtle way. Lorries of over 7.5 tonnes transporting waste, stones, earth, excavated material, motor vehicles, steel, and, a mistake this, marble and travertine were banned. So it was a combination of the lorry weight and the nature of the load carried which led to the ban. Austria said that these particular loads were the sorts of things which could sensibly be loaded on trains; they said that was the purpose of the ban. Why, they said, should we endure all this pollution when a chunk of it can be avoided by making people use the trains running along this valley? Indeed this itself is another policy objective embedded in EU policy. The marble and travertine perhaps raised an eyebrow, as one of the main beneficiaries of Austria’s roads is Italy, with its fine stone exports.

Ultimately the CJEU thought that the nut of air pollution could be cracked with a smaller sledgehammer than that wielded by the Austrian government. Cutting down on the smellier lorries rather those carrying specific loads could be done; so could a fixed speed limit of 100kmh, rather than the variable speed limit then adopted. So reasoned the Court. But air pollution is not quite like this; a member state, when faced with a pollution source of this type (dynamic and fluctuating) cannot just say there is one obvious and non-trade offending route to a reduction in air pollution. It has to, and should, make all appropriate efforts to reduce pollution. So it is not really either-or, but both if not all available measures.

One curiosity about the reasoning is that the alleged losers in all this were those who made it their business to send their goods by road through Austria, from, say, Italy to Germany. Those losers are of course the polluters – together with lots of others. There is a maxim which invariably emerges in environmental cases, not least because it is built into the European treaty – the polluter pays principle. But in this case the polluter is not paying at all – nor did the maxim surface. He, the trader or lorry operator, is getting the benefit of some else’s road system, and that someone else (Austria) has to find alternative ways, at its expense, to overcome pollution caused by him and others. Some times, when one stands in awe of the huge advances made in environmental protection by the Community in the last 35 years, one forgets for a moment what it is really all about. And you are only reminded how powerful the trade demands are when you compare them to environmental counterweights, or indeed their human rights equivalents; remember the fag pack machine case where freedom of movement considerations were far more powerful than the easily overcome Article 1 Protocol right, when both were relied upon in the same case. Or indeed more recently where uniformity in welfare measures for live animals in transit was held to be more important than higher welfare standards imposed (pursuant to the Commission’s own welfare Regulation) by a particular Member state – see our post on this issue.

A final observation; CJEU cases do not often move apace, but the gap between the Advocate-General’s opinion (take your pick of the available translations including Estonian, but you won’t find English there) and the judgment of the Court is one year and five days. Perhaps they found it more difficult than the anodyne judgment suggests. Remember no-one is allowed to dissent in the CJEU; they all have to agree, on something or other.

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