Ruling of 1 October 2009 [.of the Court, First Chamber] in Case [C-103/08] Arthur Gottwald v Bezirkshauptmannschaft Bregenz  ECR Page I-09117
Referred by [Unabhängiger Verwaltungssenat des Landes Vorarlberg – Austria]
Mr Gottwald is a German national resident in Hamburg (Germany) who suffers from complete paraplegia with the loss of all functions below the fourth vertebra. A severe-disability identification card was issued to him in Germany.
On 26 August 2006, Mr Gottwald was driving his vehicle on the Austrian toll motorway network, on his way to his holiday location in Austria. He was subject to a roadside check and it was ascertained that he had not paid the time-dependent toll by purchase of a toll disc to be affixed to his vehicle.
The Bezirkshauptmannschaft Bregenz therefore imposed a fine of EUR200 on him, by decision of 4 December 2006, against which Mr Gottwald appealed before the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Independent Administrative Tribunal of the Province of Vorarlberg).
In that appeal, Mr Gottwald submitted, in particular, that, since he suffers from paraplegia in respect of which he has been issued with a German disabled person’s card, he is entitled to be issued with a toll disc free of charge in Austria, pursuant to Paragraph 13(2) of the Austrian law, on the same basis as disabled persons resident or ordinarily resident in Austria.
Freedom of movement for persons – Citizenship of the Union – Article 12 EC – Issue of an annual toll disc in respect of a motor vehicle free of charge to disabled persons – Provisions restricting the issue of that disc to disabled persons resident or ordinarily resident in national territory/ Is Article 12 TEC, now Article 18 TFEU, to be interpreted as precluding national legislation, such as that in question in the main proceedings, which restricts the issue of an annual toll disc free of charge to disabled persons who are resident or ordinarily resident in the territory of the Member State concerned.
ANSWER of the COURT:
Article 12 EC must be interpreted as meaning that it does not preclude a national rule, such as that at issue in the main proceedings, which restricts the issue of an annual toll disc free of charge to those disabled persons who are resident or ordinarily resident in the territory of the Member State concerned, including also those persons who regularly travel to that State for professional or personal reasons.
REASONING of the Court
First the Court ruled on the admissibility of the reference for a preliminary ruling. The Austrian Government challenged the admissibility on the ground that it is of a purely hypothetical nature and is irrelevant to the outcome of the dispute in the main proceedings, since Mr Gottwald has never made an application in Austria for the free toll disc in question, as the national rules provide, in order to obtain the relevant annual toll disc, free of charge. This argument was not accepted and the Court stated that the interpretation sought by the national court might be useful for the outcome of the action in the main proceedings, as the national court has the power to reduce the fine, in case Mr. Gottwald was discriminated on grounds of nationality, even if he did not apply for the annual disc toll, free of charge.
Then the Court recalls that citizenship of the Union is the basis for nationals of Member States, which find themselves in situations similar to nationals of the Member State concerned, to be treated the same way. As a consequence every EU citizen can rely on Article 12 TEC, now Article 18 TFEU. As the applicant in the main proceedings exercised his rights to move and reside within the territory of the Member States in order to take holidays in another Member State, has the right, set out in Article 12 EC, not to suffer discrimination by reason of his nationality.
Considering the fact that the Austrian rules restricts availability of the free annual toll disc only to those disabled persons who are resident or ordinarily resident in Austria, the Court found this to be indirectly discriminatory, which can be justified only by objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions.
The legitimate aims invoked by the Austrian Government, the promotion of mobility and integration of disabled persons and the wish to ensure that there is a connection between the society of the Member State concerned and the recipient of a benefit such as that at issue in the main proceedings, are to be considered as objective considerations of public interest which are capable of justifying the fact that the conditions for the grant of the benefit may affect the freedom of movement of the citizens of the Union.
As regards the proportionality test, the Court recalled that in order for a national measure to be proportionate, it must not go beyond what is necessary in order to attain that legitimate aim. Then the Court dealt with the integration issue and stated that when such benefits are not covered by EU law, Member States’ discretion is wide in deciding which criteria are to be used when assessing the degree of connection to society. In this respect, the Court made reference to Cases Bidar and Forster. As the national rules at matter do not contain additional conditions for the granting of the annual free of charge toll, like a minimum period during which the person concerned must have been resident or ordinarily resident in Austria, the Court found that the measure is justified.
The Court followed the Opinion of the Advocate General Mazak in the Case. It is worth to note, his approach. In this respect, he considered that the issue brought before the Court should be interpreted, as per the Commission opinion, in the light of Article 12 TEC and 49 TEC, now Articles 18 and 56 TFEU. Mr. Gottwald was regarded as recipient of services under the Treaty provisions, which lays down specific conditions for the applicability of the principle of non-discrimination.
The Court assessment in relation to the principle of non-discrimination followed the “classical” steps, meaning that it started from the principle of equal treatment, which s a fundamental principle of EU law. After noted that the residence criteria constitutes discrimination on grounds of nationality and breaches the equal treatment rule, the Court assessed if the restrictive measure can be justified, namely if it is proportionate and not goes beyond what is necessary. Finding that it is proportionate to the legitimate aim and does not go beyond what is necessary, the Court ruled that the national measures at issue do not fall under Article 12 TEC, now Article 18.
It is clear from the Courts’ settled case-law, that the issue of integration, the link between the individual and the host society, is of most importance. In this respect, Court interpretation of the term integration applies on a case by case analysis. In this case, the residence criterion was found to be indirectly discriminatory, and justified also by the fact that it does not contain a “minimum stay” additional condition. Unlike in Forster, where the Court found the minimum stay condition was a proof of the link between the applicant and the host society, reasoned by the fact that the Dutch rules contained a formal definition of “Integration”, here the Court used this argument, the lack of a minimum stay condition, to rule that this kind of discrimination is to be accepted under EU law. Moreover, reference to Cases Bidar and Forster was made, which are two different Judgments, in relation to the discrimination issue, but the integration matter is a common one, with different interpretation tough, in the sense that what is considered discriminatory in Forster, is not considered the same in Bidar.
To reach these different outcomes, the Court assessed the matter of equal treatment in the light of the integration, stating, in simple words, that when an individual is not financially linked with the host society, the respective Member State is entitled by EU law to discriminate against the non-integrated ones.
This Case maybe should have been assesses from the principle of legal certainty standpoint also. The principle of legal certainty is a fundamental principle of Community law which requires, in areas covered by Community law, that the Member States’ rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are. It aims to ensure that situations and legal relationships governed by Community law remain foreseeable. In this situation, did Mr. Gottwald knew what rights (to apply for a free of charge toll road, under Articles 18, 21 and 49 TFEU) and obligations are incumbent to him as a EU citizen? How is in Germany then? Does he own a free of charge annual road tool there? As the AG and Commission stated, as a recipient of services in his capacity as a tourist, being temporarily in Austria, Mr. Gottwald was discriminated on grounds of nationality.
 Case [C-103/08] Arthur Gottwald v Bezirkshauptmannschaft Bregenz  ECR Page I-09117, paragraph 25.