Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

The three references for preliminary rulings (Cases 9/70,20/70 and 23/70) with which we are concerned today have essentially the same subject-matter. Therefore I can deal with them in a single opinion. I must firstly say the following with regard to the facts.

The plaintiffs in the main actions, which I shall call the first, second and third plaintiffs, following the order in which the references for preliminary rulings were lodged, are long-distance haulage contractors. The first plaintiff's business address is in Austria, the second plaintiff's in France and the third plaintiff's in the Federal Republic of Germany. They complain that they have been assessed to tax under the German Gesetz über die Besteuerung des Straßengüterverkehrs (Law on the taxation of the carriage of goods by road) of 28 December 1968 (Bundesgesetzblatt 1, p. 1461) which came into force on 1 January 1969 and will remain in force until 31 December 1970. The details are that the first plaintiff received a notice of assessment to tax on the carriage of goods by road from the Schwarzbach/Autobahn Customs Office which was imposed because he had transported a certain quantity of goods from Hamburg through the Federal Republic of Germany to Linz on 1 March 1969 in his lorry which was registered in Austria. In the case of the second plaintiff, which runs an international long-distance haulage service between France and Germany, 9 notices of assessment to tax issued by the Neuenburg/Rheinbrücke Customs Office relating to September 1969 are at issue. The third plaintiff's case concerns the assessment to transport tax fixed by the Düsseldorf Tax Office on the basis of the plaintiff's returns for February 1969. As regards the Law upon which the notices of assessment are based, it was enacted together with other laws within the context of the so-called Leber Plan and is intended to help maintain road safety, restore an organized transport policy and improve the economic position of the German Federal Railways. So far as its contents are relevant here, it provides for the introduction of a tax on the international carriage of goods by road and the longdistance carriage of goods by road within the Federal Republic of Germany, which tax is assessed according to the gross weight of the goods transported and the distance (1 pfennig per metric tonne/kilometre); in this connexion, which is of importance in Case 9/70, only the distance exceeding 170 kilometres is taken into consideration in respect of goods which are imported by sea and the carriage of which on land begins at a seaport. It must further be noted with regard to the Law that its draft together with other draft laws included in the transport policy programme for 1968 to 1972 was sent to the Commission of the European Economic Community for its opinion in accordance with Article 1 of the Council Decision of 21 March 1962 instituting a procedure for prior examination and consultation in respect of certain provisions laid down by law, regulation or administrative action concerning transport proposed in Member States (OJ No 23 of 3. 4. 1962, p. 720). After that, a recommendation of the Commission was issued on 31 January 1968 and published in Official Journal L 35 of 8.2.1968, p. 14 in which it was stated inter alia that taxes the aim of which is to distribute traffic are incompatible with the common transport policy. Accordingly, the Commission recommended to the Federal Republic of Germany that they should abandon the transport tax and arrange the re-organization of the use of roads by imposing a system of tariffs.

The plaintiffs make particular reference to this recommendation for the purpose of arguing the incompatibility of the Law with EEC law before the Finance Courts to which they have appealed and thus to obtain the annulment of the notices of assessment directed to them. Moreover, the following is of special importance to substantiate their applications. Article 4 of the Council Decision of 13 May 1965 on the harmonization of certain provisions affecting competition in transport by rail, road and inland waterway (OJ 1965, p. 1500) says :

In addition to this decision, the First Council Directive on the harmonization of legislation of Member States concerning turnover taxes was issued on 11 April 1967 (OJ 1967, p. 1301). Article 1 provides that Member States shall replace their present system of turnover taxes by the common system of value-added tax defined in Article 2. Article 1 further provides that In each Member State the legislation to effect this replacement shall be enacted as rapidly as possible, so that it can enter into force on a date to be fixed by the Member State in the light of the conjunctural situation; this date shall not be later than 1 January 1970. The latter date was replaced by 1 January 1972 (in the Third Council Directive of 9 December 1969 on the harmonization of legislation of Member States concerning turnover taxes — introduction of value-added tax in Member States (OJ Special Edition 1969, p. 551)). On the basis of these provisions the Federal Republic of Germany introduced value-added tax through the Umsatzsteuer-gezetz (Law on turnover tax) of 29 May 1967 (Bundesgesetzblatt 1, p. 545) with effect from 1 January 1968 and extended it to transport services. Accordingly Article 31 of the Umsatzsteuergesetz expressly repealed the Beförderungssteuergesetz (Law on Transport Tax) in the amended version of 13 June 1955 which was a law which had, in part, also imposed a tax on transport services according to the weight of the goods transported and according to the distance covered. The plaintiffs regard the introduction of the new Law on the taxation of the carriage of goods by road of 28 December 1968 as the partial reintroduction of the former situation prevailing under the earlier Law on transport tax. They consider that this is not permissible in view of the Council Decision referred to and the Council Directives mentioned, regardless of whether all the Member States have already introduced the system of value-added tax. As the plaintiffs take the view that the provisions referred to are directly applicable in the Member States and take precedence over national law, they conclude that the Law of 28 December 1968 must be deemed to be inapplicable. Moreover they also base this inapplicability on a number of provisions of the EEC Treaty. They take the view that the second paragraph of Article 5 and Article 74 of the Treaty have been infringed, particularly in conjunction with the Council Decision of 13 May 1965 taken in the context of the common transport policy. According to the first plaintiff, Article 80 of the EEC Treaty has also been infringed because the new Law aims to distribute traffic and protect the German Federal Railways. Again in the opinion of the first plaintiff, Article 93 (3) of the EEC Treaty has been infringed because the said Law without the previous consent of the Commission, provides for aid which distorts competition and is an indirect subsidy to the German Federal Railways. Finally it must be mentioned that the second plaintiff claimed in the main action that Articles 37 and 86 of the EEC Treaty had also been infringed, which the Court making the reference itself does not regard as meriting consideration and takes the same view as regards an infringement of Article 74 of the EEC Treaty. In view of this situation, the courts to which appeal had been made felt that it was necessary for a preliminary ruling to be given on various questions in the field of Community law to enable them to deliver their judgments. The result was that, at the suggestion of the plaintiffs, the proceedings in the national courts were stayed by Orders of 23 February 1970, 29 April 1970 and 20 May 1970 and the Court of Justice was asked to give a preliminary ruling in accordance with the second paragraph of Article 177 of the EEC Treaty. In this respect, the following questions were referred to us :

These three questions (quoted from Case 9/70) also appear in Cases 20/70 and 23/70 as regards their substance although they are worded differently and placed in a different order. In addition, in Case 9/70, in case the Court of Justice should answer Questions 1 to 3 in the negative, it was asked alternatively to give a preliminary ruling on the following further questions :

The Commission of the European Communities submitted written observations on all the questions in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community. In addition the Government of the Federal Republic of Germany and the Finanzamt, Traunstein, submitted written observations in Case 9/70, and so did the plaintiffs in the main actions in Cases 20/70 and 23/70 and the Finanzamt, Düsseldorf-Altstadt, in Case 23/70, although it did so after the expiry of the period prescribed. The representatives of the plaintiffs in the main actions and the agents of the Government of the Federal Republic of Germany and of the Commission made oral submissions at the hearing of 15 November 1970.

The answers to the questions submitted

When looking for a solution to the problems which have been raised, it is obvious to turn first to the three questions which have been asked in almost the same terms in all three cases. In this respect the order in which they are dealt with is unimportant if one has in view an exhaustive assessment of the situation, as I do.

For the rest, the questions concerning Article 80 and Articles 92 et seq. do not need to be answered as these provisions have manifestly been invoked in error. According to the well-established case-law of the Court there is no necessity for any order as to costs to be made, this decision being reserved to the national courts.

1 Translated from the German.