EN

Official Journal of the European Union

C 69/28

(Case C-28/09)

(2009/C 69/51)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver, A. Alcover San Pedro and B. Schima, acting as Agents)

Defendant: Republic of Austria

Form of order sought

—declare that, by prohibiting lorries with a total weight of more than 7.5 tonnes, carrying certain goods, from being driven on a section of the A12 motorway, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC;

—order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The adoption of a sectoral prohibition against driving lorries with a total weight of more than 7.5 tonnes, loaded with certain goods, on the A12 motorway must be regarded as constituting a measure having equivalent effect to a quantitative restriction and is thus incompatible with Articles 28 EC and 29 EC. The disputed measure is neither appropriate nor necessary to achieve the improvement in air quality on the A12 required by Community law as it is not properly focused and does not take less restrictive measures, such as, for instance, permanent speed restrictions or emissions-dependent prohibitions on driving, into consideration. Furthermore, the defendant has not proved that there is a suitable alternative to road transport.