Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 16 July 2026 (1)
Case C‑524/24
Italian Republic
v
Republic of Austria
( Failure by a Member State to fulfil obligations – Article 259 TFEU – Free movement of goods – Transport operations carried out using heavy vehicles with a maximum authorised mass of over 7.5 tonnes – Night traffic ban – Sectoral traffic prohibition – Winter traffic ban – Traffic dosing system – Protection of health and the environment – Road safety – Principle of proportionality )
1. The Italian Republic has brought an action before the Court of Justice under Article 259 TFEU on the ground that the Republic of Austria has failed to fulfil its obligations under the Treaties by adopting certain measures restricting heavy goods vehicle traffic on the A 12 and A 13 motorways. (2)
2. In particular, the Italian Republic is questioning the compatibility with Articles 34 and 35 TFEU of: 1) a night traffic ban; 2) a sectoral traffic prohibition; 3) a winter traffic ban; and 4) a system for the ‘dosing’ of access to the A 12 motorway.
3. The dispute between the two Member States regarding the movement of goods on the A 12 and A 13 motorways is not new. Pursuant to an application by the European Commission, the Court of Justice delivered two judgments (in 2005 and 2011) (3) in which it ruled that the Republic of Austria had failed to fulfil its obligations under the then Articles 28 EC and 29 EC by imposing various sectoral traffic prohibitions that restricted the movement of heavy goods vehicles on that road axis.
I. Background
4. The Inn Valley motorway (A 12) in Austria runs through Tyrol, from Kufstein on the northern border with Germany to Zams in the west of the country. Near Innsbruck, it joins the Brenner motorway (A 13), which runs southwards to the Italian border.
5. The road axis resulting from the junction of those motorways is a key artery in the trans-European transport network: it provides a road link between Italy and Germany and, via Germany, with the other countries of northern Europe. (4)
6. To respond to the increase in traffic volumes affecting that road axis, and following the end of the European ecopoints system (5) in 2003, the Republic of Austria introduced a policy to regulate transalpine heavy vehicle traffic, with the aim of reducing pollutant emissions in the Brenner corridor and the surrounding area.
7. In the judgments in Brenner I and in Brenner II, the Court of Justice examined the sectoral prohibitions affecting the transport by road of certain goods (6) on a section of the A 12 motorway. Through those measures, the Republic of Austria sought to divert some goods traffic to alternative routes or to the railways.
8. On both occasions, the measures at issue were found to be incompatible with EU law.
9. Following the entry into force (in 2010) of Directive 2008/50/EC, (7) the annual average limit value for NO2 of 40 μg/m³ set by that directive was consistently exceeded in the Tyrol area. That situation led to the Commission initiating an infringement procedure against the Republic of Austria in 2016. (8)
10. During the same period, the Republic of Austria introduced traffic measures aimed at reducing NO2 emissions to the levels set by EU law. To do so, it tightened existing prohibitions and introduced new ones.
11. That is the context of the action for failure to fulfil obligations. The Italian Republic submits that both the restrictive effect of the measures it is challenging and their proportionality must be assessed not only in the light of the effects of each measure individually but also, and above all, of the effects of the measures taken together.
12. I will deal with the description of each measure and its legal treatment separately, while nevertheless addressing the combined impact of the measures. Inevitably, that approach will result in my Opinion being longer than is customary.
II. Measures at issue
A. Night traffic ban
13. The ‘night traffic ban’ (9) prevents vehicles with a maximum authorised mass of over 7.5 tonnes (10) from being driven at night along an 84-kilometre stretch of the A 12 motorway. (11)
14. The ban applies throughout the year, although it varies depending on the period in the year and whether the day is a working day or a public holiday:
– During the summer period (from 1 May to 31 October), the ban applies on working days between 22.00 and 05.00;
– During the winter period (from 1 November to 30 April), the ban applies on working days between 20.00 and 05.00.
– On Sundays and other public holidays, it applies continuously throughout the year between 23.00 and 05.00.
15. According to the report on the night ban provided by the Republic of Austria, (12) the aim of that measure is to ‘move the time of NOx emissions from night-time to daytime’. (13) That is based on the fact that ‘NOx emissions at night lead to significantly higher levels of NO2 in the air than during the day, due to less favourable atmospheric dispersion conditions’. (14)
16. The measure has been in force since 2002, but was amended in 2021 with the removal of an exemption for Euro VI class vehicles. (15) From 2021, during the hours when the ban applies, it has therefore comprised an overall ban on traffic: it applies to all heavy vehicles, including those that meet the Euro VI standard (which is stricter as regards emissions). (16)
17. However, the night ban regulation lays down certain exceptions to facilitate the provision of essential services (17) and rail transhipment, or exceptions linked to the type of goods being transported (live animals, highly perishable foodstuffs and newspapers).
18. An exception is also established for local and regional traffic, modelled on the exception that was the subject of the judgment in Brenner II. (18) The exception applies only to Euro VI class heavy vehicles, provided that: (a) at least the majority of the goods transported are loaded or unloaded in the ‘core zone’; (19) or b) at least the majority of the goods transported are loaded and unloaded in the ‘extended zone’. (20)
19. The night ban report states that that exemption ‘is now [(21)] necessary to prevent disproportionate harm … to the areas particularly affected by the traffic ban …’. (22)
20. According to the studies provided by the Republic of Austria, that measure, in its current form, achieves a reduction in NO2 emissions of approximately 3.0 μg/m³ during the winter and of 1.5 μg/m³ during the summer months.
B. Sectoral traffic prohibition
21. The ‘sectoral traffic prohibition’ (23) prevents heavy vehicles from transporting certain goods (24) along a stretch of the A 12 motorway approximately 65 kilometres in length. (25) It applies 24 hours a day for those goods, which are selected on the basis of their greater suitability for transport by rail. (26)
22. That measure is based on the premiss that ‘a reduction in the total volume of road traffic [is necessary] in order to meet EU air quality objectives …’. It has two objectives: (a) to prevent or limit the movement of heavy vehicles using the Brenner motorway even though a shorter alternative route is available, (27) and (b) to encourage a modal shift in freight transport towards rail.
23. The prohibition does not apply to:
– Transport using Euro VI vehicles that load or unload at least the majority of the goods transported in the ‘core zone’, or that load and unload at least the majority of the goods transported in the ‘extended zone’. (28) That exception is justified because the use of rail transport for those types of freight is neither an environmentally efficient nor a viable alternative. (29)
– Transport in Euro VI vehicles, provided they were first registered after 31 August 2018. (30) That exception (‘the cut-off date rule’) has been in force since 2020. (31) According to the Republic of Austria, the choice of a cut-off date for registration is linked to the desire to restrict the scope of the exception to vehicles equipped with the latest Euro VI technology (32) and to prevent older vehicles with higher mileage, which are more polluting, from being included. (33)
24. Other exceptions to that prohibition have not generated controversy. (34)
C. Winter traffic ban
25. The ban in question was first introduced for heavy vehicles on Saturdays in the winter of 2023, (35) and was renewed for Saturdays in the winter of 2024. (36)
26. The traffic ban covered the A 12 and A 13 motorways (37) for heavy vehicles bound for Italy, Germany or other countries accessible via those States. It applied every Saturday during the winter months of 2023, from January to early March, (38) between 07.00 and 15.00.
27. The aim was to ensure road safety by preventing traffic congestion caused by the convergence of holiday traffic and freight transport. It was intended to ensure the smooth flow of traffic, maintain the provision of supplies to the areas most affected by congestion and ensure the proper functioning of the A 12-A 13 motorway axis.
28. The ban did not apply to the transport of certain goods, (39) or to journeys to or from rail-road intermodal terminals and airports.
D. Dosing system
29. Traffic dosing was introduced on the road axis at issue in 2018. The legal basis for that approach is the Straßenverkehrsordnung (Highway Code), (40) Article 97(4) of which provides as follows:
‘The authorities responsible for road safety and the competent bodies referred to in paragraph 3 shall be empowered, where required for the purposes of safety, the flow and ease of traffic, or the maintenance of order in the event of a traffic hold-up, to issue individual and specific instructions to the different users of the public highway regarding its use, including instructions that deviate from other applicable provisions …’
30. The characteristics of the dosing system are the subject of dispute between the parties to the proceedings:
– According to the Italian Republic, dosing restricts the number of vehicles permitted to travel towards Innsbruck on the A 12 from the Kufstein border crossing to 300 per hour.
– According to the Republic of Austria, there is no limit on the number of vehicles permitted, merely a flexible speed limit. (41)
31. The measure is only implemented on days when – according to forecasts – traffic conditions would prevent absorption of the high peaks resulting from the convergence of freight transport and tourist traffic. A timetable of dosing times is therefore drawn up in advance, determined by means of a technical selection procedure for a specified period. The timetable is communicated several months in advance to the relevant authorities and to national and international trade associations. (42)
III. Pre-litigation administrative procedure
32. On 14 February 2024, the Italian Republic referred the matter to the Commission pursuant to the second paragraph of Article 259 TFEU. It argued that the adoption of the four contested measures by the Republic of Austria constituted an infringement of Article 28(1) and Articles 34 and 35 TFEU and Article 4(3) TEU.
33. On 19 March 2024, the Republic of Austria submitted its written observations. On 8 April 2024, both States presented oral argument at a hearing organised by the Commission.
34. On 14 May 2024, the Commission issued a reasoned opinion, (43) in which it:
– held that the complaint based on an infringement of Article 28 TFEU was inadmissible and rejected the plea based on an infringement of Article 4(3) TEU;
– held, in relation to the infringement of Articles 34 and 35 TFEU, that the measures at issue are measures of equivalent effect to quantitative restrictions and are, in principle, incompatible with those articles;
– held that the night traffic ban is inconsistent and disproportionate in relation to the objective pursued, both because of the broad scope of the exclusion of local and regional traffic and because of the lack of evidence justifying its continued application throughout the year, including the summer period;
– declared that the sectoral traffic prohibition is inconsistent, in so far as the exemption for Euro VI vehicles sets a cut-off date that allows the more polluting category C vehicles to be driven, without taking the mileage requirement into account;
– maintained that the winter traffic ban constitutes indirect discrimination, as it has a more restrictive effect on foreign undertakings and lacks objective justification for excluding domestic and international heavy vehicles bound for Austria. Such a measure cannot be found to be justified and is, in any case, inconsistent with the stated aim of easing traffic congestion;
– declared, lastly, that the traffic dosing system is discriminatory, ‘as it is based on a clear distinction founded on the origin of the goods being transported’ and, as such, cannot be justified. In any case, it is inconsistent and ill-suited to achieving the objective of ensuring the smooth flow of traffic, and it does not explain why its application is limited to the transport of goods coming from Germany and not to heavy vehicles joining the A 12 motorway in Austria. There are, moreover, less restrictive measures available to achieve that objective.
IV. Procedure before the Court of Justice and forms of order sought
35. On 30 July 2024, the Italian Republic brought the present action for failure to fulfil obligations, in which it asks the Court of Justice to declare that:
– the Republic of Austria failed to fulfil its obligations under Articles 34 and 35 TFEU by adopting paragraphs 3 and 4 of the night ban regulation, which prohibits the cross-border traffic of certain heavy vehicles on a section of the A 12 motorway at certain times during the night;
– the Republic of Austria failed to fulfil its obligations under Articles 34 and 35 TFEU by adopting paragraphs 3 and 4 of the sectoral traffic prohibition regulation, which prohibits the transport of certain goods on a section of the A 12 motorway, including in relation to the exemption from the ban for Euro VI class vehicles that were registered for the first time after 31 August 2018;
– the Republic of Austria failed to fulfil its obligations under Articles 34 and 35 TFEU by adopting the 2023 winter ban schedule, which prohibits certain heavy vehicles bound for Italy or Germany, or for a country to be reached via Italy or Germany, from travelling on the A 12 and A 13 motorways on all Saturdays in the winter months from 07.00 to 15.00;
– the Republic of Austria failed to fulfil its obligations under Article 34 TFEU by adopting measures that limit the number of lorries that may enter the A 12 motorway near Kufstein to a maximum of 300 lorries per hour on certain days.
36. The Italian Republic also asks that the Court of Justice order the Republic of Austria to pay the costs.
37. On 11 December 2024, the Republic of Austria contested the action, requesting that it be dismissed and that the Italian Republic be ordered to pay the costs. Those two written submissions were supplemented by a reply and a rejoinder.
38. On 24 November 2024 the Court gave the Commission leave to intervene in support of the claims of the Italian Republic.
39. On 5 March 2025, the Commission submitted its observations, requesting that the action be upheld.
40. The Republic of Austria and the Italian Republic responded to the Commission’s observations in written submissions dated 29 and 30 April 2025.
41. The Italian Republic, the Republic of Austria and the Commission appeared at the hearing, held on 21 April 2026.
V. Analysis
A. Admissibility
42. The Republic of Austria contests the admissibility of the first, third and fourth pleas in law stated in the action:
– with regard to the first and fourth pleas, it argues that the contested measures (night traffic and the dosing system) have not been described exhaustively and with sufficient clarity in the action.
– as regards the third plea (winter traffic), it considers that the ban cannot be challenged, as it ceased to have effect on 11 March 2023. Consequently, it was not in force either at the time when the pre-litigation phase began (14 February 2024) or when the Commission issued its reasoned opinion (14 May 2024). That circumstance, combined with the absence of a winter ban schedule for the 2024/2025 season, deprives the applicant of any legal interest in bringing the action and renders the action inadmissible.
43. The established case-law of the Court of Justice on actions for failure to fulfil obligations under Article 258 TFEU, and applicable by analogy to those governed by Article 259 TFEU, emphasises that the application initiating proceedings must state the subject matter of the proceedings, the pleas in law and arguments relied on in a manner that is sufficiently precise to enable the defendant to prepare its defence and the Court to rule on the application, having been able to appreciate exactly the scope of the breach of EU law complained of. (44)
44. I consider (without prejudice to what I will say in due course in respect of the fourth plea in law) that the first and fourth pleas in law are set out in terms that enable the Court and the Republic of Austria to understand the nature of the contested measures and the facts and legal arguments on which they are based.
45. The lack of precision highlighted by the Republic of Austria is not so great as to prevent a proper understanding of the subject matter and scope of the action, as is borne out by events: the Republic of Austria itself has identified the contested measures, and in preparing its defence has highlighted those aspects of the national legal framework that required clarification (or correction), and the Court is therefore in a position to rule on the alleged infringements.
46. The points that – in the opinion of the Republic of Austria – have not been described with sufficient precision do not, I repeat, affect the intelligibility required of the application. It therefore meets the admissibility criteria laid down in the relevant provisions. (45)
47. The argument relating to the third plea in law – concerning the winter traffic ban – carries greater weight.
48. The Court considers, in principle, that actions brought by the Commission under Article 258 TFEU are inadmissible where the alleged failure to fulfil obligations is no longer continuing on the date on which the time limit stated in the reasoned opinion expires. In such cases, the Court examines the effects of the contested measure to determine whether or not they continue to exist on that date. (46)
49. Under Article 258 TFEU, whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. In principle, the Court may not take account of any subsequent changes. (47)
50. That rule must also be upheld in the (different) context of the procedure under Article 259 TFEU, subject to any adjustments arising from the different role played by the Commission in the two procedures. Article 259 TFEU does not establish a requirement for the Commission to set a deadline for remedying the failure that is the subject matter of the action.
51. The alleged failure to fulfil obligations must therefore be assessed in the light of the situation prevailing at the time the Commission issues its reasoned opinion, after hearing the written and oral observations of the Member States concerned. It is at that stage that the precise subject matter of the dispute to be resolved by the Court is determined. (48)
52. The effects of the contested winter traffic ban came to an end in early March 2023, that is to say, before the matter was referred to the Commission (on 14 February 2024) and before the Commission issued its reasoned opinion (on 14 May 2024). However, in 2024, a substantially identical ban was adopted, which was applied until early March 2024 and was taken into account in the Commission’s reasoned opinion.
53. The Court has already ruled that actions for failure to fulfil obligations are admissible where the failure is of a short-term or seasonal nature. (49) The reasoning behind that case-law seems clear to me: it would be difficult to bring an action for failure to fulfil obligations against such infringements, given the length of the pre-litigation phase. If it were not possible to challenge them before the Court of Justice, there would be a risk of recurrence. (50) For that reason, actions for failure to fulfil obligations such as the present action should be deemed admissible, even though the traffic ban was only in force for a limited period.
54. I agree with the Italian Republic and the Commission that the repetition of the measure confirms that it falls within the scope of the present action and constitutes clear evidence of the risk of the infringement recurring, which can be verified in an action for failure to fulfil obligations. (51)
55. Any contrary outcome would defeat the purpose of infringement proceedings: it could encourage the circumvention, through short-term measures incompatible with EU law, of the review entrusted, in the first instance, to the Commission and, ultimately, to the Court of Justice.
56. Contrary to what the Republic of Austria has suggested, in such situations it is not necessary for the applicant Member State to demonstrate a particular interest in bringing proceedings. In any event, the Italian Republic has an interest of its own in obtaining a ruling from the Court of Justice on the measure in question: that of preventing a possible repetition of the alleged infringement.
57. In short, the pleas of inadmissibility must be rejected.
B. Preliminary considerations
1. Free movement of goods and standard of review for restrictions
58. Under Articles 34 and 35 TFEU, quantitative restrictions on imports and exports and any measure having equivalent effect are prohibited between Member States.
59. Although the two articles have a slightly different scope, their purpose and effect are the same: to prohibit national measures of a non-financial nature that could have restrictive effects on intra-Community trade in goods. (52)
60. Measures that constitute an obstacle to international transport to or from the territory of a Member State or merely transiting through that country must be regarded as measures having an effect equivalent to a quantitative restriction on both imports or exports within the meaning of Articles 34 and 35 TFEU. (53)
61. It is generally accepted that, as regards the free movement of goods, there is no de minimis rule. It is not necessary for the restrictive effects of a national measure to reach a certain level of severity or to affect a significant part of a Member State. (54) Even purely potential effects on trade could infringe EU rules.
62. However, measures having an impact on intra-Community trade where that impact is too uncertain or remote cannot be regarded as ‘restrictions’ for the purposes of those provisions. (55)
2. Burden of proof
63. It is for the applicant to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether there has indeed been an infringement, and the applicant may not rely on any presumption for that purpose. (56)
64. Where the applicant has adduced sufficient evidence to establish the existence of the alleged infringement, it is incumbent on the defendant Member State to challenge in substance and in detail the information produced and the inferences drawn. (57)
65. As regards the possible conflict between national measures and EU rules on freedom of movement – including Articles 34 and 35 TFEU – the burden of proving that they impede the freedoms in question lies with the applicant. (58) The defendant Member State may demonstrate that the restriction is justified. (59)
66. The reasons that might be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and the proportionality of the restrictive measure, and by specific evidence substantiating its arguments. (60)
3. Restrictive effect and justification of the measures: the judgments in Brenner I and in Brenner II
67. With the exception of the dosing measure, which requires a partially different approach, the remaining measures challenged in the present case essentially impose a blanket ban (61) on the movement of heavy goods vehicles on the entire length or on certain sections of the A 12 and A 13 motorways.
68. The Republic of Austria does not dispute the restrictive effect of the night, sectoral and winter traffic bans on the free movement of goods. (62) It argues, however, that they are justified by compelling reasons relating to protection of the environment, human health or road safety.
69. That approach comes as no surprise, given the following statements in the judgments in Brenner I and in Brenner II:
– Even where a Member State claims to have implemented a traffic measure with the aim of complying with the obligation to comply with the annual limit value for NO2 concentrations in the air, as laid down in secondary EU law, that State is required to adopt, for that purpose, appropriate and consistent measures, taking into account all the material circumstances and the interests in play. While it has a discretion in that respect, it must nonetheless exercise it consistently with the provisions of the FEU Treaty, including the fundamental principle of the free movement of goods. (63)
– A measure prohibiting heavy vehicles carrying certain goods from travelling on a section of the A 12 motorway (and which therefore prevents the use of a mode of transport for those goods in that transalpine corridor) constitutes a restriction on the free movement of goods, notwithstanding the possible existence of alternative routes or other modes of transport capable of carrying the goods in question.
– In those circumstances, the traffic prohibition must be regarded as constituting a measure having equivalent effect to quantitative restrictions, which in principle is incompatible with the obligations under Articles 34 and 35 TFEU, unless that measure can be objectively justified. (64)
– ‘National measures liable to obstruct intra-Community trade may be justified on one of the public-interest grounds set out in Article [36 TFEU], such as the protection of human health and life, or one of the overriding requirements relating inter alia to protection of the environment, provided that … [they] are proportionate to the objective sought.’ (65)
70. The earliest case-law of the Court of Justice distinguished between, on the one hand, justifications based on reasons of general interest expressly provided for in Article 36 TFEU and, on the other, ‘unwritten’ overriding reasons of general interest, within the meaning of the Cassis de Dijon case-law. (66)
71. From that perspective, the potentially discriminatory nature of the restriction in question took on particular significance. A measure constituting indirect discrimination could only be justified (provided it was necessary and proportionate to the objective sought) on the basis of one of the interests explicitly referred to in what is now Article 36 TFEU. There was no possibility of invoking, for those purposes, other ‘unwritten’ overriding reasons of general interest recognised by the case-law of the Court of Justice. (67)
72. Justification is given for two of the measures challenged by the Italian Republic in the present action (the night traffic ban and the sectoral traffic prohibition) on the basis of the general interest in environmental protection, which, although not mentioned in Article 36 TFEU, could be considered to be implicitly covered by that provision, given its link to public health. (68) For the others (the winter traffic ban and the dosing system), however, the justification is based on the ‘unwritten’ overriding reason consisting in road safety. For that reason, the Italian Republic submits that they could not be justified if the Court were to find them to be discriminatory.
73. I do not agree with that argument.
74. The dichotomy between the grounds of general interest laid down in Article 36 TFEU and the ‘unwritten’ grounds of general interest would lead to the creation of two categories of interest: some that can always be invoked and others that can only be invoked where the national measures are not discriminatory. I see no valid grounds for considering that the former deserve greater protection than any others. Indeed, Article 36 TFEU does not include such significant interests as, inter alia, the protection of fundamental rights or the protection of minors.
75. Article 36 TFEU should not be interpreted as reflecting an intention to create two distinct and mutually exclusive categories of public interest. In that regard, I agree with Advocate General Bot’s call to move beyond that dichotomy. (69) I also believe that the Court’s case-law has developed in that direction over the last few decades. (70)
76. The basic principle relating to justification is that a national measure restricting the freedoms guaranteed by the Treaties is compatible with those Treaties to the extent that it is based on overriding reasons of general interest worthy of protection and is proportionate to the objectives it seeks to achieve. That principle applies irrespective of whether or not the national measure is discriminatory. (71)
77. Everything will therefore depend on whether the measure is appropriate for achieving the objective relied on and does not go beyond what is necessary to achieve it. ‘A restrictive measure can be regarded as suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner.’ (72)
78. Having established those premisses, I will examine, in turn, each of the breaches alleged against the Republic of Austria.
C. Night traffic ban (first plea in law)
79. It is not in dispute that the night traffic ban is equivalent to a quantitative restriction within the meaning of Article 36 TFEU. Nor is there any doubt that, in principle, it could be justified on the basis of one of the overriding reasons referred to in that article (guaranteeing air quality in the interests of protecting health).
80. The parties disagree, however, on the proportionality of the measure. The Italian Republic, supported by the Commission, puts forward several arguments submitting that the night traffic ban:
– is inherently discriminatory, as it identifies the vehicles concerned on the basis of their size;
– is not necessary, since it has not been demonstrated that the beneficial effect on air quality is a direct consequence of the night traffic ban rather than of the general renewal of the vehicle fleet;
– is inconsistent, due to the way the exemption for local and regional traffic is structured;
– is also inconsistent in view of the times at which it applies.
81. I will not dwell on the allegedly discriminatory nature of the fact that the heavy vehicles are chosen on the basis of their size, to which the Italian Republic itself devotes only a few lines, without providing sufficient evidence to rebut the Republic of Austria’s objections that that criterion is neutral (non-discriminatory).
82. I will therefore focus on the arguments concerning the impact of the renewal of the vehicle fleet and the inconsistency of the measure, which will lead me to consider the argument relating to the obligation to assess measures that are less restrictive of intra-Community trade.
1. Impact of fleet renewal
83. The Italian Republic disputes that the improvement in air quality in the Tyrol area (a point that is not in dispute) is attributable solely to the effectiveness of the night traffic ban. In its view, that outcome is also due to factors such as the modernisation of the vehicle fleet travelling on the A 12 and A 13 motorways, which has contributed to the gradual control and reduction of pollutant emissions since 2020.
84. In the same vein, it argues that, with a more modern fleet, the ban is unnecessary. From the data that it provides, (73) the Italian Republic concludes that, ‘… the reduction achieved … is not attributable to the measures adopted by Austria, but to the indirect effect that those measures have had on renewal of the vehicle fleet’. (74)
85. The Republic of Austria refutes those claims with arguments supporting the necessity (in the broadest sense) and the effectiveness of the night traffic ban, in relation both to curtailing emissions and to its impact on fleet modernisation.
86. It is doubtful whether the renewal of the fleet is merely an indirect effect of the traffic bans at issue here. It appears rather to be the result of a deliberate environmental policy on the part of the Austrian authorities, which link traffic bans to a system of exceptions designed to encourage the use of heavy vehicles that are increasingly energy-efficient and environmentally friendly.
87. There is no evidence that the data provided by the Italian Republic take due account of the possible beneficial spillover effect of the Austrian measures. That was – in my view correctly – highlighted by the Republic of Austria at the hearing. (75)
88. The night traffic ban can therefore, in principle, be regarded as an appropriate measure for achieving the objective pursued. The Italian Republic’s other arguments call into question its ability to do so in a consistent, systematic and proportionate manner.
2. Inconsistency of the measure due to the exemptions for local and regional traffic
89. The night traffic ban includes an exemption for local and regional traffic, which is designed substantially in the same way as that examined by the Court in 2011.
90. On that point, the Italian Republic’s criticism is twofold:
– it argues that, as a result of that exception, the night ban distorts competition in favour of undertakings established in the core and extended zones;
– it submits that the exception is not objectively necessary to ensure the provision of supplies locally, since, first, there is already another general exception for products inherently requiring non-deferrable delivery; and, second, the exemption for local and regional traffic is not limited to specific types of product, which demonstrates a lack of consistency with the objective pursued.
91. According to the Republic of Austria, the exemption does not distort competition, as transport undertakings are eligible for it irrespective of where their headquarters are located. The exemption in question is necessary to ensure that supplies reach the local and extended zones, a result of the lack of viable alternatives (by road or rail) for accessing those areas.
92. With regard to the distortion of competition, I agree with the Republic of Austria that no conclusive link has been demonstrated between the exemption for local and regional traffic and the decline in transport undertakings in the adjacent Italian regions and the corresponding increase in the Austrian Tyrol.
93. On the other hand, I believe that the exemption for local and regional traffic significantly undermines the consistency of the night traffic ban. To defend the validity of that ban, the Republic of Austria essentially reiterates arguments that it set out previously in relation to the sectoral prohibition, relating to the necessity of the exemption due to the lack of alternative routes, and to its consistency, which in its view was confirmed by the judgment in Brenner II. (76)
94. Those arguments are unconvincing. In my view, it is not appropriate to simply apply considerations relating to a sectoral prohibition to a different context, such as night traffic. (77) I agree with the Commission that that argument fails to take proper account of the fact that the night traffic ban differs substantially from the sectoral prohibition, not only as regards the aims it seeks to achieve but also as regards its subject matter and temporal scope.
95. The sectoral prohibition examined in the judgment in Brenner II:
– was intended to divert the transport of certain goods entirely, that is to say, 24 hours a day, to alternative transport routes, whether road or rail, that were substantially equivalent and more environmentally friendly;
– applied to limited categories of goods, which were identified on the basis of their ‘affinity with rail’, as supported by expert studies;
– prohibited the transport of those goods by road on the relevant section of motorway, without further qualification, subject to certain exceptions based on the non-viability or inefficiency of rail transport for journeys within the core and extended zones.
96. However, the night traffic ban at issue here:
– is not intended to divert night traffic to rail or alternative road routes but merely to postpone it to the daytime, when atmospheric conditions are more favourable;
– does not completely ban the transport by road of the goods in question but merely restricts the times when it can occur;
– is designed very broadly, as it applies to all goods carried by heavy vehicles, with the exception of those covered by the exceptions laid down in legislation.
97. To invoke, as the Republic of Austria does, a justification based on the lack of an alternative transport route to reach the core or extended zones is not consistent with the overall objective of the night ban.
98. In fact, irrespective of the supposed existence of alternative routes – by road (78) or rail (79) – to which traffic bound for areas other than the core and extended zones could be diverted at night, doing so is not the objective of the night traffic ban, either in theory or in practice. (80) It is worth reiterating that the aim of the ban is not to divert traffic to alternative routes, but simply to defer it to the daytime in order to take advantage of more favourable atmospheric dispersion conditions.
99. In that context, the night ban report acknowledges that ‘the provision of alternative transport options is not as important as in the case of sectoral traffic prohibitions, which are in force the whole time …, since [under the night traffic ban] road transport remains possible at certain times and it is necessary only to adjust the scheduling of journeys’. (81)
100. However, the Republic of Austria does not conclusively demonstrate that merely adjusting the scheduling of deliveries – which the other undertakings established outside the exemption area are required to do – is in itself insufficient to ensure effective supply to the core or extended zones as well.
101. To demonstrate that there is in fact a need for ‘night-time supply’ to the core and extended zones, the Republic of Austria provides a study (82) showing that heavy vehicles transporting goods from the zones outside to the core zone travel proportionally more (30.09%) at night than the average recorded over a 24-hour period (11.96%).
102. However, the stated aim of that study was not to ascertain the core zone’s actual night-time supply requirements but rather ‘to examine the recurring claim that Tyrol undertakings were selectively exploiting a supposed competitive advantage’ arising from the exception for local and regional traffic. (83)
103. Those data show only that night-time transport is used out of preference for deliveries to the core zone. However, it does not seem possible to infer unequivocally from those data that there is a genuine need for night-time supply, for two main reasons:
– they do not refer to the nature of the goods transported at night to the core zone, in particular whether those percentages also include the transport of foodstuffs, mail and periodical publications, which would in any case be permitted to circulate under the ‘general’ exception established for that purpose. (84) The Republic of Austria therefore fails to refute the argument put forward by the Italian Republic (that the need for night-time supply to the core zone was already adequately guaranteed by the general exception);
– Even supposing that that information refers only to product categories not covered by other exceptions, the explanation provided by the Republic of Austria is not such as to rule out another, equally plausible, interpretation. (85)
104. Accordingly, the exception for local and regional traffic continues to allow (and might even encourage) the night-time movement of a considerable number of heavy vehicles, irrespective of any consideration as to whether the supply needs of the core zone could be met by rescheduling or postponing ‘non-urgent’ deliveries to the daytime.
105. Although the fact that the core and extended zones cannot be reached using alternative routes might justify an exception designed to ensure that they receive supplies, beyond what is permitted under the ‘general’ exceptions, such an exception should be designed (and the reasons for it duly explained) according to the specific objectives of the night traffic ban measure, rather than being based on the extrapolation of an exception envisaged for a different measure.
106. Consequently, given the current configuration of the exemption for local and regional traffic, I believe that the night traffic ban does not reflect a consistent and systematic approach to achieving the intended objective. That in itself would be sufficient to uphold the first plea in law.
107. However, for the sake of completeness, I will also examine the other arguments of the Italian Republic.
3. Inconsistency arising from the configuration of the times involved
108. The Italian Republic and the Commission consider that the night traffic ban is inconsistent and disproportionate, in so far as:
– it leads indirectly to traffic being concentrated during a time period when the emissions produced have a greater impact on air pollutant concentrations;
– it applies in both summer and winter, even though the phenomenon of temperature inversion has a different impact in the two seasons.
(a) Setting of the time at which the ban ends
109. According to the Italian Republic, ‘the fact that the night traffic ban ends at 05.00 causes a traffic peak in the early morning, when heavy vehicle traffic is added to private passenger traffic. In other words, heavy vehicles are discouraged from travelling at times when traffic is flowing better, and are therefore concentrated during the most congested times’. (86)
110. In the view of the Republic of Austria, setting the end of the night traffic ban at 05.00 serves the objective of striking a fair balance between, on the one hand, the prevention of ambient-air pollution and, on the other, the needs of freight transport, thereby contributing to the proportionality of the measure. (87)
111. In its reasoned opinion, the Commission accepted that setting the end of the night traffic ban at 05.00 represents a reasonable compromise between the competing objectives referred to by the Republic of Austria. It added that ‘Austria … has pointed out – and Italy has not contested that assertion – that the negative impact on air quality caused by morning traffic jams is more than offset by the overall benefit to air quality resulting from the night traffic ban’. (88) Consequently, the Commission did not revisit that issue in its statement in intervention.
112. However, the Italian Republic argues that, ‘… taking into account … the peak of the “tau effect” [(89)] … the increase in the night-time concentration can be to a great extent or almost entirely offset by the reduction achieved by not concentrating traffic in the period between 06.00 and 08.00 in the morning’. (90)
113. Nevertheless:
– The Italian Republic does not develop that argument beyond what has been transcribed (91) and the information that is supposedly apparent from the graphs provided.
– Those graphs (92) show (1) the daily variation in heavy vehicle traffic in 2022 at the Vomp measuring station, revealing a peak between 06.00 and 08.00, followed by a downward trend until 24.00; and (2) the change in the ‘tau factor’ at the Vomp station, which shows an upward trend from midnight until it reaches a peak around 06.00, followed by a U-shaped downward trend, with its lowest point between 12.00 and 14.00 before resuming an upward trend until 24.00.
114. The information provided by the Italian Republic does not serve to support, on its own, the Italian Republic’s argument that those graphs make it possible to infer ‘clearly’, directly and unambiguously the alleged offsetting effect to which it refers.
115. The Republic of Austria seeks to demonstrate that the increase in emissions caused by the concentration of traffic during the day is less than the increase that would occur if heavy vehicles (or some heavy vehicles) were also allowed to travel freely at night.
116. To that end, the night ban report and the other scientific studies provided by the Republic of Austria (93) show that, in order to assess the potential effect of that measure in the configuration analysed by each study, account has been taken, on the one hand, of data relating to specific scenarios in which no such ban was applied, and, on the other, of projections for the situation in the Brenner corridor based on the assumption that the measure thus assessed is implemented:
– initially, traffic data for the A 12 motorway from 2000 and 2001 were used, when the night traffic ban was not yet in force. In that scenario, it was calculated that, without the night traffic ban, the annual average level of NO2 emissions would have risen by approximately 2 μg/m³; (94)
– in the new 2018 calculation, to assess the impact on air quality of a night traffic ban without the general Euro VI exemption, it was assumed that a measure configured in that way would result in a daily distribution of heavy vehicles (in transit) similar to that on the A 2 in Switzerland. Under those conditions, reductions in the annual average NO2 emissions were estimated of between ‑0.01 μg/m³ in 2020 and ‑1.15 μg/m³ in 2023; (95)
– in the most recent impact studies ‘it is suggested that, without [a night traffic ban] on the A 12, the relative daily distribution [of heavy vehicle traffic] would be the same as on the A 1’, that is to say, an Austrian motorway where no such ban is in force. (96) Thus, ‘the total actual effect of the [night traffic ban] (including the tightening of the exception for Euro VI vehicles in transit from 1 January 2021 and of previous [bans] enacted before 2019) was ‑2.2 μg/m³ of NO2 as an annual average for 2023’. (97)
117. In my view, the Republic of Austria has provided data demonstrating an appropriate balance between, on the one hand, the effects of the potential lifting of the night traffic ban (and the resulting redistribution of heavy vehicle traffic over the 24-hour period) and, on the other, the actual effects of the current ban on the level of concentration of NO2 emissions.
118. The data provided show that, despite the possible negative impact of the ‘tau factor’ corresponding to the traffic peak in the early morning, the measure makes it possible to achieve a greater reduction in NO2 emissions, in absolute terms, than would be the case if no such ban were in place.
119. The argument put forward by the Italian Republic (that the concentration of heavy vehicle traffic coincides with the times with the greatest volume of passenger traffic) raises doubts as to the consistency of the ban, given that the Republic of Austria itself acknowledges that the harmful effect of NO2 emissions on human health stems from chronic exposure to high levels of concentration.
120. Although that criticism may prove to be valid in the abstract, the Italian Republic has not provided any scientific data that, in relation to that specific point, provide sound evidence of any counterproductive effect of the ban in its current form.
121. I therefore agree with the Commission that the Republic of Austria’s argument regarding the setting of the end time for the night traffic ban is plausible and does not affect the consistency of the measure.
(b) The fact that the measure applies throughout the year
122. The Italian Republic submits that the year-round night traffic ban is inconsistent with the justification put forward by the Republic of Austria (counteracting the effects of temperature inversion). (98) That phenomenon is ‘particularly rare’ in summer and is at least twice as common in winter, despite which the ban is largely the same throughout the year (only two hours shorter in summer).
123. The Republic of Austria:
– denies having claimed that the night traffic ban is intended to combat temperature inversion;
– asserts that, in the Inn Valley, during the time period when the ban applies, the incidence of temperature inversion is substantially comparable in summer and winter;
– reiterates that temperature inversion is merely one of several factors contributing to the effectiveness of the night traffic ban for air quality and is not cited as a justification for applying the measure throughout the year;
– emphasises that the decisive factor is that the emissions limit set by EU legislation is calculated as an annual average.
124. A review of the case file reveals that the Republic of Austria referred to the phenomenon of temperature inversion for the first time during the pre-litigation proceedings when setting out the ‘direct effect’ of the measure (that traffic shifts to the daytime). (99) It did not cite temperature inversion as a justification for the year-round night traffic ban, (100) merely as one of the factors contributing to poorer atmospheric dispersion conditions at night.
125. In that context, precedence must be given to one piece of information provided by the Republic of Austria: in 2023, ‘during the hours of the night traffic ban, the frequency of inversions was exactly the same in summer (from 22.00 to 05.00) as in winter (from 20.00 to 05.00), at 34% in both cases’. (101)
126. The occurrence of temperature inversions can therefore be regarded as simply another of the many factors that help to explain the impact of the night traffic ban on air quality. Under those conditions, it remains valid and consistent – irrespective of the season in question – to state that dispersion conditions are less favourable at night, due to lower temperatures and frequent temperature inversions.
127. The crux of the issue is to determine whether a traffic ban imposed for a time period that remains largely uniform throughout the year, the effectiveness of which is reduced during the summer months, complies with the principle of proportionality.
128. The Republic of Austria states (102) that, in the case of NO2, EU law sets a limit value based on an annual average, since it is not pollution peaks that are harmful to health, but rather chronic exposure. Consequently, measures to reduce NO2 should be implemented throughout the year.
129. It is clear from the information provided that:
– average NO2 concentrations during the summer period are usually lower than those in the winter period; (103)
– On an hourly basis, the night traffic ban was, on average, only 15% less effective during the summer period than during the winter period. (104)
130. The Republic of Austria argues that, in the light of that percentage, ‘it cannot under any circumstances be said that the night traffic ban has a clearly lesser impact in summer than in winter’. (105) It maintains that the lower effectiveness of the measure has already been taken into account by the shortening of the duration of the ban by two hours during the summer period. The measure needs to be maintained throughout the year to ensure long-term compliance with the obligations arising from EU law. The reductions achieved in the summer, although smaller, account for at least a third of the overall impact of the measure, which is a significant proportion.
131. While those assertions might be acceptable in general terms, the fact remains that, when it is a matter of continuing to apply a measure such as a seven-hour traffic ban for a six-month period in which ground level concentrations are already lower in absolute terms – and despite acknowledging the (more) limited effectiveness of the measure during that period – the requirement to justify maintaining that ban is even greater. In particular, it should be demonstrated that there are no less restrictive alternatives that are equally effective for achieving the desired objective.
132. With regard to the application of the measure during the summer period, I consider that the Republic of Austria has failed to fulfil its obligation to ‘examine carefully the possibility of using measures less restrictive of freedom of movement, and discount them only if their inappropriateness to the objective pursued was clearly established’. (106)
133. From the night ban report, which sets out the situation as of 14 September 2020, it is clear that, at that time, the Republic of Austria’s priority was to react swiftly to ‘the clear deviation from the annual average limit value for NO2’ established by the European Union, with a view to ‘ensuring compliance with [that limit value] as soon as possible at the Tyrol measuring points near motorways that were recording values in excess of [emission concentrations]’. (107)
134. According to that report, ‘it is also not possible to replace the night traffic ban with other measures, irrespective of whether they would actually be less restrictive’. It states that the other traffic measures with immediate effect that might be considered – speed limits or bans on certain Euro classes, as mentioned by the Court in the judgment in Brenner II – had already been implemented or enacted, as had a sectoral traffic prohibition. (108)
135. It adds, however, that ‘the criterion of necessity, or the obligation arising therefrom to adopt in each case the least restrictive measures appropriate to achieving the objective, cannot be interpreted as meaning that … the least restrictive measure must be applied first, or even that its effect must be assessed, before a more restrictive measure can be imposed …’ (109)
136. While that approach was probably appropriate in a situation such as that in 2020, when values exceeding the limit values exposed the population to a health risk, it is not suitable given the change in circumstances, now that it has been established that, at the Vomp measuring station, the limit values set by Directive 2008/50 are consistently met. The need for action that would justify maintaining the approach adopted in 2020 is not present.
137. When asked at the hearing, the Republic of Austria:
– acknowledged that restrictive measures must at all times comply with the principle of proportionality, which, in its view, was upheld prior to 2024. Until then, the levels recorded in Tyrol, while remaining within the limit set by Directive 2008/50, were only just below the maximum threshold laid down by EU legislation, by virtue of the package of measures adopted;
– added that it was only in 2025 that a degree of deviation from the limit values may have been recorded that was significant enough to allow a review of the proportionality of the measures, in a context not characterised by urgency. However, the entry into force of Directive (EU) 2024/2881 (110) has rendered that approach unviable, given the new mitigation target that must be achieved by 2030.
138. I do not think that that view is correct.
139. In the first place, in 2022, the average value measured at the Vomp measuring station was 33.3 μg/m³, (111) which is well below the maximum limit of 40 μg/m³ set by the EU legislation, even when taking into account the 3 μg/m³ ‘safety margin’ endorsed by experts. (112) That figure continued to fall in the following years, reaching a forecast level of 26.7 μg/m³ for 2026. (113)
140. Those figures, provided by the Republic of Austria itself, support the case for reviewing the proportionality of the measure before 2025, at a time when Directive 2024/2881 had not yet been published.
141. In the second place, Directive 2024/2881 cannot be used to assess the infringement at issue in the present action, as that Directive was adopted on 23 October 2024, after the pre-litigation phase heard by the Commission had concluded. As I have already explained, the Court must determine whether the infringements were well founded in relation to the situation as of 14 May 2024. At that time, the emission limits with which the Republic of Austria was required to comply were (only) those laid down in Directive 2008/50.
142. In the third place, Directive 2024/2881 cannot be invoked to uphold the restriction in its current form. (114) Article 36 TFEU permits ‘… national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that article’. (115)
143. What is open to criticism here is not that the Republic of Austria did not repeal its package of measures in its entirety, but rather that it failed to review the proportionality of the night traffic ban in the light of an updated assessment of the risk to human health, which was required in view of the latest available data. (116)
144. As the limit values laid down by EU law had been complied with for years, the risk, claimed initially, of subjecting the local population to undue exposure to pollutants was being mitigated. Consequently, the Republic of Austria, even before 2025, should have undertaken a thorough analysis of whether less restrictive alternative measures were possible, if only to rule them out, stating reasons, if they had been found to be insufficiently effective.
145. That is all the more true if, in line with the most recent studies, the night traffic ban proves to be less effective during certain periods of the year, which reinforces the case for a specific alternative measure, aimed at achieving a modest outcome.
146. I have been unable to find, among the documents submitted by the Republic of Austria (including those it identified as relevant at the hearing), any documents in which, after 2020, there is a critical examination of the proportionality in the strict sense of the night traffic ban. The reports submitted focus on demonstrating the effectiveness of the night traffic ban without considering any alternatives other than those already mentioned. (117) Demonstrating that a measure is appropriate for achieving the objective pursued does not relieve the Member State that adopts it of the need to consider whether it goes beyond what is necessary to achieve that objective.
147. Although the Republic of Austria was not required actively to prove that no other possible measure could have achieved the objective of the night traffic ban during the summer period, it was required to demonstrate that it had carefully assessed a sufficient number of alternatives (118) that were less restrictive of freedom of movement.
148. I therefore consider that the Republic of Austria has failed to fulfil its obligations under Articles 34 and 35 TFEU and that the first plea must, therefore, be upheld.
D. Sectoral traffic prohibition (second plea in law)
149. The Italian Republic challenges the prohibition on using a section of the A 12 motorway imposed on heavy vehicles carrying certain types of goods deemed suitable for rail transport. The sectoral prohibition is accompanied by the exceptions that I have already mentioned. (119)
150. In the judgments in Brenner I and in Brenner II, the Court held that, by requiring the undertakings concerned to seek economically viable alternative solutions for transporting the goods in question, the national measure had the effect of restricting trade between northern Europe and northern Italy. (120)
151. The prohibition now before the Court can, in essence, be equated with that examined in the judgment in Brenner II, with three differences: the current prohibition applies to a slightly shorter stretch of motorway; (121) and to a more extensive list of goods; (122) and introduces an exception for less polluting vehicles (123) that was not included in the prohibition examined in 2011. However, as I have already explained, (124) that latter exception has been significantly restricted in recent years.
152. At first glance, a reading of the judgments in Brenner I and in Brenner II would seem to suggest that the arguments put forward by the Italian Republic in the present action are bound for success: the Court should confine itself to upholding those rulings.
153. The Republic of Austria does not dispute that the sectoral prohibition is restrictive, but considers it necessary to protect public health and the environment: in particular, to combat air pollution and comply with the maximum emission levels laid down in EU legislation. (125)
154. The Italian Republic disputes that the prohibition is consistent, systematic and proportionate, arguing that:
– it is discriminatory, as the list of goods concerned is arbitrary and distorts competition between local and cross-border producers;
– it is not suitable for achieving the intended objectives in a consistent and systematic manner, due to the exceptions for local and regional traffic and for Euro VI class heavy vehicles registered after 31 August 2018;
– it goes beyond what is necessary to achieve the objectives pursued, given that pollutant concentrations in the affected areas have remained below the limit values laid down in Directive 2008/50 for several years, and the intermodal ‘rolling highway’ system (Rollende Landstraße or ‘Ro. La’), (126) as an alternative to road transport, suffers from significant capacity constraints, poor reliability and long waiting times.
1. Discriminatory nature of the measure
155. In its reply, the Italian Republic focuses its criticism on the inclusion of cereals in the list of goods subject to the sectoral prohibition, which it claims distorts competition in favour of Austrian farmers. Once again, the claim is not backed up by specific evidence to support it.
156. To refute that criticism, we need only recall that the judgment in Brenner II rejected a similar argument put forward by the Commission, which was questioning the neutral and appropriate nature of ‘affinity with rail’ as a criterion for determining the scope of the sectoral prohibition.
157. The Republic of Austria has provided a detailed explanation of the objective criteria used to select the goods covered by the ban, which relates also to the inclusion of cereals. (127)
158. The competition between Italian producers and producers based in the Austrian Tyrol areas, in relation to certain products, is not a sufficient ground to demonstrate that the sectoral prohibition constitutes arbitrary discrimination or a disguised restriction on trade between Member States.
159. There is nothing in the evidence before the Court to suggest that the measure, which is based on grounds of protection of the environment and public health (as put forward by the Republic of Austria), has been diverted from its purpose, gives rise to discrimination against goods originating in other Member States or indirectly protects certain national products. (128)
2. System of exceptions
160. I do not consider it necessary to dwell on the Italian Republic’s criticisms regarding the exception for local and regional traffic, which essentially reiterate arguments that have already been examined and rejected by the Court in the judgment in Brenner II.
161. Contrary to what I have argued in my analysis of the night traffic ban, the reasoning followed by the Court in the judgment in Brenner II is applicable, mutatis mutandis, to the (new) sectoral prohibition. The objective of the measure examined in 2011 is the same as that of the current sectoral prohibition, and the same importance should be attached to the lack of feasible and viable alternatives for local transport.
162. In the absence of other factors that might cast doubt on the possibility of extrapolating the approach in the judgment in Brenner II to the current context, an exception designed in a similar way to that analysed in 2011 cannot call into question ‘the consistent and systematic nature of the contested regulation’. (129)
163. As regards the alleged inconsistency of the exception relating to Euro VI vehicles, I will outline the origins and rationale of the cut-off date rule. I have already mentioned that the Austrian authorities introduced the exception for Euro VI vehicles at the Commission’s request, (130) and subsequently narrowed its scope by setting a cut-off date in order to reduce the number of vehicles authorised to operate under the system of exceptions in question. (131) It is apparent from the documents before the Court that:
– In 2016, when the ‘new’ sectoral prohibition was adopted, a ‘phased withdrawal of the exception’ for Euro VI vehicles was already envisaged, which was justified, inter alia, ‘by the need to take account of the economic interests of the rail undertaking’. (132)
– When the 2019 amendment was introduced, the Austrian authorities were in favour of completely abolishing the Euro VI exception, (133) but opted to introduce the cut-off date rule as a ‘reasonable compromise’, in the light of the ‘serious reservations, from the perspective of EU law’, expressed by the Commission ‘regarding a sectoral traffic prohibition that also covers vehicles with the best emissions level’. (134)
– The setting of 31 August 2018 as the cut-off date was another compromise, designed to ensure that certain Euro VI class D vehicles were not excluded from the scope of the exception, even though that date meant, as a trade-off, that some recently registered Euro VI class C vehicles were included. (135)
– It is likely that that deadline will be reconfigured more narrowly in the future. (136)
164. In the light of that context, it is necessary to analyse the respective positions of the Italian Republic and the Commission.
165. When questioned at the hearing, the Italian Republic clarified that it does not so much contest the setting of the cut-off date (31 August 2018) as the introduction of the rule, the effect of which is to restrict the broader exception for all Euro VI vehicles, provided for in the original version of the prohibition. The radical nature of that change is not adequately offset by the benefit of reduced emissions in absolute terms. (137)
166. Put in those terms, the objection relates more to the proportionality of the sectoral prohibition, viewed as a whole, than to the consistency of its system of exceptions. I will analyse proportionality in due course.
167. The Commission, on the other hand, does not criticise the introduction of the cut-off date rule as such, but rather the fact that the date set was 31 August 2018, which it claims is inconsistent.
168. However, the Commission’s argument is somewhat ambiguous: in its statement in intervention, it appears to challenge only the inclusion of certain Euro VI C vehicles within the scope of the exception. (138) At the hearing, by contrast, it explained that the date in question not only permits travel by certain Euro VI C vehicles, which are more polluting than those in the Euro VI classes D and E, but also excludes from the scope of the exception a considerable number of Euro VI D vehicles, which had already been eligible for registration since October 2016. The Commission proposed, as a more consistent alternative, a system based on a deferred cut-off date (31 August 2019), which would completely exclude Euro VI C vehicles, accompanied by an ‘exception to the exception’ to allow travel by Euro VI D vehicles registered before that new date.
169. There is no need to dwell on the difference of opinion between the Commission and the Republic of Austria regarding the date from which Euro VI D vehicles could be registered. In my view, the Commission’s argument is, in any event, unconvincing, since:
– The alternative system it proposes is extremely complex, and there are uncertainties regarding its practical implementation. On the basis of current legislation, there does not appear to be a registration or type-approval date that would allow Euro VI C vehicles to be distinguished at first sight from those in Euro VI classes D and E. Furthermore, it is possible that the vehicle registration certificates, or other documents required to be kept in vehicles, do not contain the information necessary to determine, quickly and reliably, to which subcategory of the Euro VI class a particular vehicle belongs. It is uncertain whether that information can be verified immediately during roadside checks. (139)
– The Commission does not dispute that, as the Republic of Austria states, a vehicle’s age and wear and tear make it progressively more polluting, irrespective of its technology, which means that the exception can regain its consistency. (140)
170. In short, I consider that none of the objections raised against the system of exceptions succeeds in calling into question the consistency of the prohibition.
3. Proportionality of the measure and the existence of less restrictive alternatives
171. The sectoral prohibition could be an most appropriate way of ensuring achievement of the environmental protection objective pursued. In the judgment in Brenner II, the Court found that a sectoral prohibition led to a reduction in emissions of atmospheric pollutants and therefore contributed to improving air quality. It also held that ‘the need to reduce the transport of goods by road, if appropriate by directing operators towards other more environment‑friendly modes of transport such as rail transport, has been acknowledged in the framework of the common transport policy’. (141) That line of reasoning can be applied to the present action.
172. The Italian Republic submits, however, that the sectoral traffic prohibition goes beyond what is necessary to achieve the objective pursued and is, therefore, disproportionate. In particular, it argues that:
– the Republic of Austria has not demonstrated the availability of suitable transport alternatives;
– such a drastic measure is not necessary, as pollutant concentrations in the affected areas have remained far below the limit values set by Directive 2008/50 for several years. It has also not been demonstrated that there are no other measures less restrictive of the free movement of goods or that such measures would be ineffective.
(a) Availability of adequate rail capacity
173. The Italian Republic maintains that the Ro. La. intermodal system suffers from significant capacity constraints, is unreliable and results in long waiting times. Furthermore, given the journey time and the cost of rail transport, which are considerably higher than those of road transport, Ro. La cannot be considered an ‘attractive option’.
174. In the judgment in Brenner I, (142) the Court found that the Austrian authorities had not demonstrated that they had properly assessed, ‘before adopting a measure so radical as a total traffic ban’, the availability of sufficient rail capacity for the transport of the goods in question.
175. In the present proceedings, the Republic of Austria has provided detailed information and figures to demonstrate that rail transport – whether using Ro.La. or in freight wagons – could constitute a reasonable alternative (as regards journey times and costs) to road transport.
176. The Italian Republic’s objections on that point are rather general and are not supported by studies or other documents of sufficient probative value. Therefore, its claim that there are no alternatives cannot be regarded as having been substantiated.
(b) Necessity of the measure and due consideration of less restrictive alternatives
177. In the judgment in Brenner I, (143) it was noted that the Austrian authorities had failed to demonstrate that they had properly assessed less restrictive alternatives. In the context of those proceedings, the Commission had suggested several alternative measures that, although they might have affected the free movement of goods, would have made it possible to achieve the desired objective with a more limited restriction on the exercise of that freedom. (144)
178. The Commission maintained that argument in Brenner II. (145) Once again, the Court upheld its objection, attaching particular importance to the context of the prohibition at issue, namely all the measures comprising the package of which it formed part. It noted, in particular, that a permanent speed limit on the affected sections of motorway would have constituted a less restrictive measure, with a potential to reduce NO2 emissions that the Republic of Austria had not taken sufficiently into account. (146)
179. In order to assess the alleged infringement on the part of the Republic of Austria in the present action, it is necessary to examine the changes in traffic measures on the A 12 and A 13 motorways during the periods immediately preceding and following the judgment in Brenner II (2011):
– In 2007, an initial package of measures was adopted (that examined by the Court in 2011), which included, in addition to the abovementioned sectoral prohibition, a night traffic ban (which was less strict than the current prohibition and was not contested by the Commission in Brenner II); a speed limit varying according to emissions; a traffic ban on certain classes of highly polluting heavy vehicles; and tax-related measures, such as the differentiation of toll rates according to emission classes.
– In 2011, the sectoral traffic prohibition was lifted following the finding of failure to fulfil obligations in the judgment in Brenner II.
– In 2014, the permanent speed limit referred to in that judgment was introduced.
– In 2016, the sectoral prohibition was reintroduced, with an expanded list of the goods covered but accompanied by a temporary exception for Euro VI vehicles.
– In 2018, the traffic dosing system forming the subject matter of the fourth plea in law was introduced for the first time.
– In 2020, the cut-off date rule was introduced in order subsequently to extend the scope of the sectoral prohibition. It is clear from the preparatory documents that the Austrian authorities favoured abolishing entirely the exception for Euro VI vehicles, but did not do so because of potential incompatibility with EU law and the consequent risk of a challenge before the Court and the imposition of interim measures. (147) As I have already mentioned, it was envisaged that the cut-off date rule could be tightened in the future.
– In 2021, the general exception for Euro VI vehicles under the night traffic ban was abolished. That change also affects the Euro VI vehicles that remain excluded from the sectoral prohibition, for which travel therefore continues to be restricted to the daytime.
– In 2023 and 2024, the winter traffic ban forming the subject matter of the third plea in law was adopted.
180. In that way, all the ‘alternative measures’ proposed by the Commission in the Brenner I proceedings were adopted cumulatively by the Republic of Austria over the decade following the judgment in Brenner II. However, that approach is, in itself, contrary to the concept of an ‘alternative measure’. (148)
181. The Republic of Austria contends that all those measures are, in fact, necessary to ensure compliance with the maximum emission value laid down by EU law. Even if only the threshold set by Directive 2008/50 is taken into consideration, it is undisputed that, until 2021, the cumulative application of the measures adopted did not make it possible to achieve the objective laid down in that directive, as demonstrated by the infringement procedure initiated by the Commission in 2016.
182. As I have already explained in relation to the night traffic ban, the introduction of that series of measures has had a positive impact on emission concentrations – both directly (by reducing emissions) and indirectly (by encouraging fleet renewal). Since 2021, the maximum levels laid down in Directive 2008/50 have been complied with on all the relevant sections of the A 12 and A 13 motorways, even when the ‘safety margin’ of 3 μg/m³ endorsed by experts is added to those thresholds.
183. While a ‘shock therapy’ approach, such as that adopted between 2016 and 2020, may have been reasonable given the fact that the limit values were systematically exceeded during that period, the data subsequent to 2021 give cause for reflection. As I have already pointed out, the Court holds that any derogation from the freedoms of movement provided for in the Treaties must satisfy the criteria required for it to be justified not only at the time it is adopted but also throughout the entire period during which it is applied.
184. A Member State must therefore demonstrate, in relation to the circumstances of the specific case, that the measures constituting an exception to the freedom of movement are justified and do not go beyond what is necessary. If there is a significant change in the circumstances that led to their adoption, Member States must reassess their necessity and proportionality, and must consider the possibility of lifting those measures or replacing them with others that are less restrictive.
185. Once again, I consider that the Republic of Austria has failed to fulfil that obligation. I base that view on the following grounds:
– The 2019 sectoral prohibition amendment report indicates that, as alternative measures to tightening the sectoral prohibition, consideration was given to strengthening the other bans, including the night traffic ban, which, however, had already been enacted. (149) I would emphasise that, even at that time, none of those measures constituted a genuine ‘alternative’.
– It is clear from the same report that the other genuine (and more restrictive) ‘alternative’ considered in the technical analysis (the complete removal of the exception for all Euro VI vehicles) was ruled out in view of its potential incompatibility with EU law and the risk that, if it were challenged before the Court, it would be rendered ineffective in the short term due to the adoption of interim measures.
– The subsequent scientific studies provided by the Republic of Austria merely demonstrate the effectiveness of the package of measures and its suitability for achieving a reduction in emission levels, but do not carry out a comprehensive review of its proportionality in the light of the new circumstances.
– Despite the fact that the limit values were complied with in 2021 and 2022, not only were the existing measures not eased but the winter traffic ban was introduced in 2023 and 2024. (150)
– There is no evidence that the decision to maintain all the existing measures in force, in their current form, was reconsidered during the discussions that preceded the present action for failure to fulfil obligations. It appears from the case file that, since 2018, specific multilateral meetings have been held within the EU institutions regarding traffic restriction measures on the A 12 and A 13 motorways. In 2023, those discussions had intensified, prompting the Commission to present a ‘compromise’ package of measures to the Member States concerned.
186. I am not arguing that, in 2024 or in the preceding years, the situation in the Tyrol was such that it necessitated the complete abolition of the sectoral prohibition. Nor do I deny that that measure could help to ensure good air quality in Tyrol and that, in that context, the aim of shifting some freight transport to rail remains legitimate.
187. My reservations regarding that prohibition are of a different nature: I consider that the situation from 2022 required the Austrian authorities to examine whether the sectoral traffic prohibition could be relaxed or, if it were to remain unchanged, whether it would militate in favour of the removal or easing of other restrictive measures included in the same set of regulations (such as, for example, the night traffic ban).
188. In the light of the foregoing, I consider that the second plea in law should be upheld.
E. Winter traffic ban (third plea in law)
189. The Italian Republic criticises the ban on heavy vehicles using the A 12 and A 13 motorways when travelling to Italy or Germany, or to another country accessible via those countries, every Saturday between January and early March 2023, from 07.00 to 15.00.
190. The Republic of Austria does not dispute the restrictive nature of the measure, which (with a small number of exceptions) prohibits the transport of goods by road using heavy vehicles for eight consecutive hours every Saturday for a period of two months. However, it considers that restriction to be justified by an overriding requirement in the public interest: ensuring road safety and the proper operation of the motorways during periods of significant congestion.
191. The Italian Republic and the Commission note that that overriding requirement in the general interest is not among the grounds in the public interest expressly referred to in Article 36 TFEU, and therefore could not be relied on if it were found to be discriminatory. Both argue that a ban is discriminatory where it is applied selectively, only to journeys where the destination is Italy or Germany, and not, conversely, to purely domestic journeys or to international transport where the destination is in Austria. They also emphasise that, from the perspective of road safety and the increased risk of traffic congestion and accidents, the final destination of the journey is entirely irrelevant.
192. The Republic of Austria argues that the measure applies indiscriminately, irrespective of the origin of the goods being transported and the country in which the vehicle is registered.
193. The Republic of Austria’s defence is not sufficient to allay my serious reservations regarding that ban, which seems to me to be indisputably discriminatory.
194. I agree with the Italian Republic and the Commission that defining the scope of the ban solely on the basis of the vehicle’s final destination, limiting it to journeys to destinations abroad, is not justifiable, particularly in the light of the objective that the measure is purportedly intended to achieve. I have not found a sufficient explanation of the reasons on which that decision is based in the documents submitted by the Republic of Austria. (151)
195. The fact that that ban is discriminatory would not, in itself, preclude the possibility of its being justified on the basis of an overriding requirement in the public interest recognised by the case-law of the Court. (152) It is therefore necessary to examine whether the measure in question is appropriate for ensuring achievement of the objective of ensuring road safety and does not go beyond what is necessary for that purpose.
196. In the abstract, a ban on heavy vehicles on certain days or at certain times can ensure a high level of road safety when it is reasonable to expect that traffic – particularly passenger vehicle traffic – will be exceptionally heavy (for example, due to public holidays or certain periods during the tourist season).
197. Thus, if considered in isolation, and independently of whether it may be discriminatory, the measure in question could probably be regarded as not raising any issues of compatibility with Articles 34 and 35 TFEU.
198. However, the situation is different when the impact of the winter ban on intra-Community traffic is assessed in the light of the other measures in place, with which it interacts.
199. In fact, on Saturdays in winter, heavy vehicles could only be driven from 05.00 (when the night traffic ban ended) until 07.00 (when the measure in question came into force). The moment the winter ban ceased to apply, the weekend traffic ban took effect, which applies throughout the year from 15.00 on Saturday until 22.00 on Sunday.
200. Furthermore, on Sundays following Saturdays affected by the winter ban, traffic was restricted to a single hour (between 22.00 and 23.00), as that was the time when the night traffic ban took effect, preventing vehicles from being driven until 05.00 on Monday.
201. In short, from 22.00 on Friday until 05.00 on Monday, heavy vehicles bound for Italy or Germany could only travel on the A 12 and A 13 motorways for three hours. The short duration of that ‘window’ of time, combined with the length of the journey between Germany and Italy and the need to comply with the speed limits in force, made it almost impossible in practice to transport goods internationally using heavy vehicles at weekends. Furthermore, taking the week as a whole, heavy vehicles were only able to travel without restriction for approximately 46% of the total time.
202. In that context, the purported need to improve road safety and prevent congestion for eight hours on Saturdays during the winter is the result, to a great extent, of the effects of the other traffic measures adopted by the Republic of Austria, which hinder or prevent international heavy vehicle transport in the hours both preceding and following that period (the combined effect of the night traffic ban and the weekend traffic ban means that heavy vehicle traffic is concentrated during the daytime on Saturdays).
203. Under those circumstances, the winter traffic ban, while it was in force, cannot be described as actually necessary to achieve the objective relied on.
204. At the same time, the ban also raises issues from the point of view of proportionality in the strict sense. In fact, the situation would be less prejudicial if, given the existence of a ban affecting the daytime on Saturdays in winter, the night traffic ban on Friday and/or the weekend traffic ban were reduced by a comparable number of hours. The interests protected by the other measures (the reduction of pollutant emissions) would, on the Saturdays in question, be sufficiently safeguarded by the ban on daytime traffic.
205. In the light of the foregoing, the restriction on the free movement of goods resulting from the winter traffic ban is not only discriminatory but also lacks proper justification. The third plea in law must therefore be upheld.
F. Traffic dosing system (fourth plea in law)
206. The Italian Republic criticises a measure, introduced from March 2018, that limits the number of heavy vehicles travelling south on the A 12 motorway from Germany to a maximum of 300 vehicles per hour. The measure applies on specific days, which are determined in advance by the Austrian authorities and are announced periodically and publicly.
207. The Republic of Austria disputes that that measure is restrictive. It asserts that the aim of the measure is to improve traffic flow on dates when, from experience, a significant increase in traffic is expected. It also enables the emergency services to intervene more effectively where necessary.
208. According to the Republic of Austria, the dosing system does not actually hinder goods traffic. The system at issue is only used on days when it is absolutely necessary, and for a few hours (usually in the morning). It does not prescribe a pre-determined number of vehicles permitted, as the reduction in the number of incoming vehicles is achieved by setting an additional speed limit.
209. In general terms, a limit on the number of heavy vehicles permitted to travel on a section of motorway in the trans-European network could be described as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 34 TFEU. As such, it would be capable of discouraging, or even significantly delaying, the intra-Community transport of goods, making it more complex and costly.
210. However, I am not convinced that merely any measure limiting the number of heavy vehicles that are permitted to travel on a section of motorway at a given time is, inevitably, incompatible with Article 34 TFEU.
211. Whether a measure may have restrictive effects on the free movement of goods depends on many factors. Indeed, if applied on an exceptional basis, where necessary to prevent traffic jams, and is maintained only for as long as is strictly necessary, such a measure could even – as the Republic of Austria claims –have a positive impact on free movement.
212. Conversely, a measure applied relatively often, even in situations where its usefulness is unclear, would have effects restricting free movement.
213. If, as the Republic of Austria has submitted, ‘dosing’ in fact takes the form merely of a speed limit imposed, on an exceptional basis, on certain sections of the motorway in rare circumstances, in response to valid forecasts of traffic congestion, I do not believe that it is open to criticism.
214. On that basis, I do not believe that the Italian Republic has discharged the burden it bears of proving that the dosing system at issue infringes Article 34 TFEU.
215. In the first place, the information needed to understand the nature of the contested measure and the specific manner in which it is applied is not explicitly apparent from the text of the relevant national legislation. In fact, the wording of the provision on which the measure is based is rather broad, not to say vague. (153)
216. In those circumstances, it was incumbent upon the Italian Republic, as the applicant, (i) to provide the Court with all relevant information necessary to understand the structure and operation of the contested measure; and (ii) to submit the evidence supporting of its claims.
217. I believe that the Italian Republic has not met those requirements. The Republic of Austria has in fact disputed the accuracy of the description of the measure provided in the application, and the Italian Republic has not provided a convincing response to that objection, either in its reply, in its observations on the Commission’s statement in intervention or at the hearing.
218. In other respects, the Italian Republic has not provided any evidence in support of its arguments (such as administrative decisions or circulars) and does not refer to any publicly accessible documents that might corroborate the facts claimed. The Commission’s statement in intervention has similar shortcomings in that regard.
219. The Italian Republic’s arguments regarding the actual restrictive effects of the measure are incomplete. They merely maintain that, since its introduction in 2018, the number of days on which it is applied has increased gradually over time. (154) Nor do they indicate whether dosing has been ordered, and in which cases, in situations where there was no real need, or for purposes other than those cited by the Republic of Austria.
220. The Italian Republic has therefore not demonstrated that the dosing system has such an impact on the free movement of goods as to constitute a ‘restriction’ within the meaning of Article 34 TFEU. In the absence of specific evidence on that question, any restrictive effects of that measure are too uncertain and remote to be considered relevant.
221. In short, I consider that the fourth plea in law must be dismissed.
VI. Costs
222. Under Article 138(3) of the Rules of Procedure of the Court of Justice, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
223. In accordance with Article 140(1) of the Rules of Procedure of the Court of Justice, the Commission is to bear its own costs.
VII. Conclusion
224. In the light of the foregoing, I propose that the Court give the following ruling:
‘(1) The Republic of Austria has failed to fulfil its obligations under Articles 34 and 35 TFEU by adopting Articles 3 and 4 of the Verordnung des Landeshauptmannes vom 27. Oktober 2010, mit der auf der A 12 Inntal Autobahn ein Nachtfahrverbot für Schwerfahrzeuge erlassen wird (Regulation of the First Minister of Tyrol of 27 October 2010 adopting a night traffic ban for heavy vehicles on the A 12 motorway in the Inn Valley), as amended in 2021.
(2) The Republic of Austria has failed to fulfil its obligations under Articles 34 and 35 TFEU by adopting Articles 3 and 4 of the Verordnung des Landeshauptmannes vom 18. Mai 2016, mit der auf einem Abschnitt der A 12 Inntal Autobahn der Transport bestimmter Güter im Fernverkehr verboten wird (Regulation of the First Minister of 18 May 2016 prohibiting the long-distance transport of certain goods on a section of the A 12 motorway in the Inn Valley), as amended most recently in 2023.
(3) The Republic of Austria has failed to fulfil its obligations under Articles 34 and 35 TFEU by adopting the Verordnung der Bundesministerin für Klimaschutz, Umwelt, Energie, Mobilität, Innovation und Technologie, mit der für die A 12 Inntalautobahn und die A 13 Brennerautobahn an bestimmten Samstagen im Winter 2023 ein Fahrverbot für Lastkraftfahrzeuge verfügt wird (Regulation of the Federal Minister for climate action, environment, energy, mobility, innovation and technology imposing a traffic ban on lorries on the A 12 Inn Valley motorway and the A 13 Brenner motorway on certain Saturdays during the winter of 2023).
(4) The remainder of the action is dismissed.
(5) The Italian Republic, the Republic of Austria and the European Commission shall each bear their own costs.