Trade and Environment in the European Court
Over the last couple of years the ECJ has issued some interesting judgments on trade and environment. The most recent - Case C-320/03 of 25th November 2005 Commission v. Austria - concerns an Austrian measure to prohibit lorries of more than 7.5 tonnes carrying certain goods from crossing certain sections of the Tyrol, this being one of the main routes of land communciation between Southern Germany and Northern Italy. The goods included waste, cereals, timber, cork, minerals, stone, soil, rubble, motor vehicles and steel. The aim of the measure was to limit nitrogen dioxide pollution for reasons of the protection of human health. The European Court found that the measure was contrary to Articles 28 and 29 of the EC treaty which prohibits quantitative restrictions on imports and exports and measures with equivalent effect. It also found that though the measure was, in principle, capable of being justified on grounds of environmental protection, it could not be thus saved in this case. The measure was found to breach the principle of proportionality. The key here according to the European court was that Austria had failed in its obligation, before adopting a measure as radical as a traffic ban, to examine carefully the possibility of using mesures which would be less restrictive of trade, and to discount these measures only if their inadequacy was clearly established. Austria (bearing the burden of proof in invoking an exception) had not conclusively established that pollution reduction could not be achieved by other, less trade restrictive. Also, given the declared objective of inducing a shift from road to rail, Austria was required to ensure that there was sufficient and appropriate rail capacity to allow such a transfer. It had not in fact established that there was a realistic alternative to road transport in this case. The Court also condemened the two month transition period for the introduction of the ban as too short to allow operators to adapt to the new circumstances. The case seems consistent with a more general 'proceduralisation' approach in European case law. Here it was the failure to properly consider alternatives which was the primary reason for the measure being condemned.
