Umweltschutz und verkehrsbeschränkende Maßnahmen in der EU: Möglichkeiten und Grenzen

Following the accession of Austria to the EU, the motorway section of the Brenner, running through Tyrol, became the busiest road link in the Alpine arc, accounting for approximately 2.5 million trucks driving through the Brenner section per year. The volume of heavy traffic, which exceeds the average for comparable road connections by far, has serious impacts on the environment and the health of the population living along the motorway. Moreover, traffic volume is pushing the road infrastructure to its limits. A corollary of this is that for years, the state of Tyrol has been implementing various measures restricting heavy goods traffic. However, such measures are only permitted if and to the extent that they are compatible with the EU legal requirements determined by the free movement of goods rules. This requires not only proof of public interest considerations justifying a restriction of the free movement of goods rules but also compliance with the principle of proportionality. Public interest considerations, such as, specifically the protection of the environment and health, but also road safety and the maintenance of the functionality of an important road connection, have already been recognized by the CJEU. Therefore, the crucial bit lies with the requirement to demonstrate compliance with the principle of proportionality. Since the suitability and, in particular, the necessity of a measure leaves the respective Member State a certain, albeit limited, margin of discretion, it is often not clear until a decision is made by the CJEU whether this margin of discretion has been (just yet) respected or, alternatively, has already been exceeded. For this reason, some measures restricting traffic on the respective motorway section concerned have already been subject to proceedings before the CJEU in the past. Moreover, an infringement action brought by Italy against Austria is currently pending at the Court. The latter’s decision will be of particular importance for the future relationship between the free movement of goods rules on the one hand as well as the protection of the environment and health on the other hand.