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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Italy: New Urban Regulations for the City of Rome

(July 17, 2019) On June 20, 2019, the City of Rome enacted new urban police regulations concerning hygiene, decorum, safety, and law enforcement, and established new and increased penalties for violations. (New Urban Police Regulations of the City of Rome (the Regulations), Municipality of Rome website (under “Selezione La Tipologia” choose “Deliberazione Dell’Assemblea Capitolina” and under “Sintesi Oggetto” type in “polizia”; then click “Recerca” and click PDF icon for document No. 43 (in Italian) (note: Regulations page 1 begins at PDF page 31. All page number references are to the PDF page number, located at the top of the document).)

The Rome City Council has recently “updated and expanded a range of regulations, some of which have been on the statute books since 1946.” (Nick Squires, Rome New Rules for Tourists: Ban on Bare Chests, Sucking on Drinking Fountains and Eating in Public, TRAVELLER (June 11, 2019); Urban Police Regulations, Resolution of the Provisional Municipal Board, No. 4047 of November 8, 1946, Roma Capitale website.)

Bathing and Other Improper Uses of Fountains

The Regulations prohibit bathing in historic fountains. Other forbidden uses of fountains include throwing objects, spilling substances, or immersing animals in them, climbing on fountains, or damaging them. (Regulations art. 8(5), at 40.) Protected fountains include the Trevi Fountain, the Leoni Fountain at the Piazza del Popolo, the Barcaccia at the Piazza di Spagna, the “Fontanone” del Gianicolo, and the nasoni (public fountains of Rome). (Id. Annex A, at 84.) The prohibition does not apply to the tradition of throwing coins into some historic fountains, such as the Trevi Fountain. (Id. art. 8(2), at 39.)

Street Prostitution

Other provisions forbid the criminal exploitation of street prostitution, in particular, mandating municipal agencies to offer to affected women work alternatives, psychological support, and social reintegration opportunities. (Id. art. 5(1), at 37.)

A daspo (divieto di accedere alle manifestazioni sportive—ban on access to sporting events to prevent violence at stadiums) is imposed on persons using the services of prostitutes or who publicly engage in obscene behavior. (Id. art. 6(1), at 38.) (Mariano Acquaviva, Daspo: cos’è? [What is a Daspo?], LA LEGGE PER TUTTI (Nov. 8, 2018).)

Centurions, Saltafila, and Unauthorized Sale of Food and Beverages on the Street

The Regulations aim to protect the historical and artistic décor of UNESCO sites located within the Historic Center of Rome. A general prohibition is established for persons who, for photographic purposes, dress as centurions with historical clothing or costumes in areas of historical, artistic, or cultural interest located in the Historic Center of Rome, at UNESCO sites, or at the Villa Borghese. (Regulations art. 15(2), at 43.)

The activities of saltafila are also forbidden. Saltafila are persons who charge tourists a commission for buying them tickets at historic sites or in other public spaces to avoid ticket lines; promote tourist tours; sell tickets for museums, theaters, and cultural and tourist events; promote various commercial activities, such as selling food, beverages, popcorn, and chewing gum; or conduct any other not expressly authorized activity. (Id. art. 15(3), at 43.)

Urban Transportation

The Regulations also prohibit the use of velocipedi (cycles, as defined by Legislative Decree No. 285 of April 30, 1992, NEW TRAFFIC CODE art. 50, Official Gazette website), including rickshaw-type cycles or eco-taxis with three or more wheels (whether pedaled or motorized). (Regulations art. 20(4), at 47.)

Urban Decorum

The Regulations institute special protections for the area of the City of Rome that has been declared as a UNESCO World Heritage Site, including penalties for graffiti and for those who otherwise defile and disfigure these sites. (Id. art. 4(1)(l), at 37.) Also protected from intentional damage are other valuable places, such as schools, hospitals, universities, museums, public green areas, or areas subject to substantial tourist flows. (Id. art. 20(1), at 47.) Other measures fight bivacco (stays in uncovered temporary camps) and punish those who throw cigarette butts in public areas, waters, or drains. (Id. art. 4(1)(b), at 36.)

The Regulations also forbid the unauthorized distribution, posting, and display of leaflets, stickers, and the like in public areas, including on lighting poles and road signs. (Id. art. 4(1)(k), at 36.) Rummaging and unauthorized waste collection are likewise prohibited. (Id. art. 25(1)–(2), at 50.)

Consumption and Sale of Alcoholic Beverages

The Regulations ban the wholesale and retail selling, consuming, serving, and carrying alcoholic beverages throughout the year, not only during the summer months as before. (Id. art. 6(1)(b), at 38.) Tour alcolici (pub crawls or alcohol tours) are also banned. (Id. art. 28(5), at 52.) Except in specific cases expressly authorized by law, the Regulations establish the times for alcohol consumption. (Id. art. 28(1), at 51–52.)

Care and Protection of Animals and Public Parks and Areas

The Regulations include provisions related to the keeping and care animals. Animal owners must carry bags for the collection of excrement to preserve the beauty of sidewalks, public parks and areas. (Id. art. 10(2), at 41, & art. 24(e), at 49.)

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Sweden: Supreme Court Defines Negligent Rape

(July 17, 2019) On July 11, 2019, Sweden’s Supreme Court issued its first judgment in relation to the country’s amended rape legislation, finding that a defendant had been negligent in having intercourse with a woman for not being sure that she was participating freely. (Högsta Domstolen [Supreme Court], Case No. B 1200-19 (July 11, 2019).)

Swedish Rape Legislation

On July 1, 2018, a new provision of the Criminal Code containing a new definition of rape based on lack of consent and establishing negligent rape as a new crime entered into force in Sweden. The new provision defines rape as an act committed by

[o]ne who, with a person who is not participating freely, engages in intercourse or in another sexual act [that is comparable to unwanted intercourse because the violation of the victim is so severe] is guilty of rape and subject to imprisonment for no less than two years and no more than six years. In determining whether participation is voluntary or not, special consideration should be given to whether the voluntariness has been expressed through words or actions or in another way. (6 kap. 1 § Brottsbalk (BrB) [Criminal Code] (all translations by author).)

The Criminal Code definition of negligent rape provides that “[o]ne who commits an act that is mentioned in 1 § and is grossly negligent in relation to the circumstance that the other person is not participating freely is guilty of negligent rape and subject to imprisonment for no more than four years.” (6 kap. 1a § BrB.)

Case Background

A man spent the night at the house of a woman with whom he had previously communicated only via social media. They slept in the same bed and, during the night, he engaged in sexual intercourse with the woman and also “inserted his fingers into [the victim’s] vagina.” (Case No. B 1200-19, para. 4.) Throughout the process the woman was passive and did not give the impression that she wanted to participate in the act. (Id. paras. 10–11.)

The District Court and the Appeals Court had convicted the man of rape, noting that he was indifferent to whether the victim was participating freely. (Case No. B 1200-19, para. 2; Hovrätten for Övre Norrland [Appeals Court for Upper Norrland] Case No. B1167-18 (Feb. 5, 2019), on file with author.)

The case was appealed to the Supreme Court to address whether the defendant should be convicted of rape or negligent rape and what the sentence should be. (Case No. B 1200-19, para. 7.) The Supreme Court overturned the lower courts’ decisions, finding that the prosecutors had not proven that the man had the requisite intent needed for rape—that is, active intent to commit rape, or an intent of indifference to whether the victim was participating freely of her own free will (likgiltighetsuppsåt)—and thus could not be convicted of rape. (Id. para. 7.)

Supreme Court’s Analysis

Referring to legislative history (Prop. 2017/18:177s. 31 f.), the Court noted that

[t]he boundary between a criminal and a noncriminal act is whether the participation was voluntary. … A person who, against his or her will, is the object of a sexual advance is not responsible for saying no or in any other way expressing his or her objection. A person who participates freely in sexual relations also does not need to show his or her desire for sexual relations. (Id. para. 14.)

The Court further explained that sleeping in the same bed while wearing only underwear did not mean that the woman participated freely. (Id. para. 33.)

The Court went on to argue that, although passivity could also be a sign of voluntary participation, the window for finding that passivity alone constitutes consent is limited. (Id. para. 16.) If it is determined (as in this case) that consent was not expressed, the court must proceed to evaluate whether the person committing the alleged act knew or should have known that the act was not consensual. (Id. para. 17.)

No Consent Provided

The Court first determined that the acts committed (sexual intercourse and vaginal penetration with the perpetrator’s fingers) constituted the act of rape. (Id. para. 29.) The Court then proceeded to establish that the victim had not participated freely, noting that her witness statements were clear, she had told two persons close to her about the incident, she had previously in an online message told the man that she did not want to have sex with him, and she had been passive throughout the sexual acts. (Id. paras. 30–31.) The Court noted that merely agreeing to sleep in the same bed only in their underwear did not mean the parties had also participated freely in the sexual acts. (Id. para. 32.) The Court then stated it had been proven beyond a reasonable doubt (ställt utom rimligt tvivel) that the sexual acts had taken place without the victim participating freely. (Id. para. 36.)

The Court therefore had to look at the intent of the defendant.

Question of Defendant’s Intent (Uppsåt)

Under Swedish law, persons can be convicted of rape only if it is proven that the person who commits the act of having sexual relations with someone who is not participating of his or her own free will does so with active intent or indifferent intent. According to the Supreme Court the prosecutor did not prove that the defendant was indifferent to whether she was participating freely, and thus did not demonstrate indifferent intent. (Id. para. 38.) The court therefore proceeded to determine whether the defendant could be convicted of negligent rape.

Deliberate Negligence (Recklessness)

The first prong of the test of deliberate negligence (medveten oaktsamhet) is similar to that in cases of indifferent intent (likgiltighetsuppsåt)—that is, the actor must have understood or suspected that there was a risk that the other person was not participating freely. The difference here compared to likgiltighetsuppsåt is that the actor is indifferent to the risk, not to the act. In other words, he is not indifferent to whether or not he sleeps with someone who is not participating freely, but is indifferent to the risk that the other person is not participating freely, and participates while assuming the person is participating freely.

Subconcious Negligence (Negligence)

Subconcious neglience (omedveten oaktsamhet) is when a perpetrator has not understood, but should have understood, that a certain risk was at hand—that is, in this case, the victim was not participating freely. The culpable act here is not having attained the requisite knowledge about the risk, even though one should have. (Id. para. 28.)

Supreme Court’s Decision

The Supreme Court, unlike the Court of Appeals, found that the prosecutors did not prove that the defendant knew or understood that the victim was not participating freely. (Id. para. 38.) However, the message that the victim had sent to him previously “must … have given him reason to believe that she probably was not interested in sexual relations that night.” (Id. para. 38.) Even though people can change their minds regarding their willingness to participate in sexual relations, the Court concluded that it had been established that the defendant, at the time he entered the house of the victim, “knew that it was possible that the victim might not want to participate in any sexual acts.” (Id. para. 38.) Furthermore, as evidenced from the witness statements made by the defendant, he was not sure that she wanted to have sex with him when he proceeded to engage in the sexual acts, and at one point leading up to the acts, was not sure if she was awake. (Id. para. 39.) The defendant’s statement that he stopped the intercourse when he thought the victim, who was for the duration on her stomach with her face turned away, was pulling away from him because she no longer wanted to participate, in the words of the Court “prove[d] that [the defendant] also after the initial stages [of the sexual act] understood the risk that the injured party was not participating freely.” (Id. para. 41.) The Court thus found that he had understood the risk of her participating freely, and by continuing his advances he was deliberately negligent. (Id. para. 43.)  Deliberate negligence is generally considered gross negligence (recklessness), and there was nothing to mitigate it here. (Id. para. 44.) In thus finding that he had been grossly negligent, the Court held him responsible for the crime of negligent rape. (Id. paras. 48–49.)

The Court found that the penal value for the negligent rape was equal to eight months of imprisonment (id. para. 50), which was added on to sentences for other acts, including the rape of a child and sexual assault. The Court reduced the sentence by one year and, thus, the man was sentenced to imprisonment for a total of two years and three months. (Id. para 53.)

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Saudi Arabia: Parliament Approves New Type of Residency Permit to Promote Foreign Investments

(July 16, 2019) On May 15, 2019, Saudi Arabia’s Consultative Council approved a law establishing a new residency system to enable investors to reside in the country. Following parliamentary approval, the new law was referred on the same day to the Saudi cabinet—the Council of Ministers—which approved the law after reviewing the Consultative Council’s decision and the recommendation of the Council of Economic and Development Affairs. (Cabinet Approves Special Privilege Iqama Law, SAUDI GAZETTE (May 15, 2019).)

Provisions of the New Law

The Law grants a special residency permit to qualified individuals who plan to invest in Saudi Arabia and allows them to bring their family members with them to reside in the country. Furthermore, such individuals have the legal right to own real estate in the kingdom and establish their own corporations. (Premium Residency to Stimulate Saudi Economy, Say Experts, SAUDI GAZETTE (May 15, 2019).)

The new residency permit has two forms: one that serves as a permanent residency permit and one that is renewable annually. The permanent residency permit is granted after the investor pays a lump sum of 800,000 Saudi riyals (SAR) (about US$213,000) to Saudi authorities. The annually renewable residency permit is granted after the investor pays SAR100,000 (about US$26,000). (Yasser Najdi, Benefits of the Special Residency Permit and Violations That Could Cause Its Suspension, SAPQ NEWS (June 23, 2019) (in Arabic).) The requirements for the new residency permit include a valid passport, adequate financial resources, a sound health report, and a certificate of no criminal record. (Cabinet Approves Special Privilege Iqama Law, supra.)

According to Ibrahim Al-Omar, the governor of the Saudi Arabian General Investment Authority (SAGIA), the newly established residency permit targets mainly investors and entrepreneurs, who will help the kingdom to enhance the economic growth of the private sector and build the economic foundation that will play a key role in the country’s future development. (New Residency Permit to Support Investment in Saudi Arabia, SAUDI GAZETTE (May 15, 2019).)

The Law establishes the Center for the Special Residency System, a government body designated to work on the new Law’s executive regulation, which reportedly is to be issued within 90 days from the date the new Law is issued. (Center for Special Residency: The Center Is in the Process of Preparing an Executive Regulation of the Law Within 90 days to Determine the Conditions and Procedures for Non-Saudis to Apply for the Special Residency Permit, SAUDI GAZETTE (May 15, 2019).)

Others Measures to Enhance Private Sector

In 2018, SAGIA launched a specialized entrepreneur license allowing international entrepreneurs to create 100% foreign-owned startup corporations in Saudi Arabia. According to SAGIA, this measure led to a 70% increase in the number of foreign corporations established in the kingdom. (Id.)

Local Reactions to Recent Measures

The Saudi Gazette has reported that economic experts in Saudi Arabia have endorsed the government’s recent measures to enhance foreign investment in the kingdom and believe that those measures will achieve the objectives of the kingdom’s “Vison of 2030” plan. These experts also claim that the new residency system is expected to bring in capital that will assist in developing medium and small enterprises and prevent the flight of domestic capital abroad. (Premium Residency to Stimulate Saudi Economy, supra.)

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New Zealand: Firearms Buyback Program Commences

(July 15, 2019) On June 20, 2019, the Arms (Prohibited Firearms, Magazines and Parts) Amendment Regulations 2019 came into effect in New Zealand. The regulations “allow for the buy-back of newly prohibited firearms and parts from owners within a six month amnesty period,” which will run until December 20, 2019. A buyback price list was subsequently published in the New Zealand Gazette, along with a brief description of the process.

The amnesty and buyback program follows the passage, in April 2019, of the Arms (Prohibited Firearms, Magazines, and Parts Amendment Act 2019, which banned most semiautomatic firearms and assault rifles, along with high-capacity magazines and parts that can be used to assemble prohibited firearms. The government introduced the changes after the Christchurch mosque attacks of March 15, 2019, in which the accused gunman used legally-purchased semiautomatic weapons.

According to a government press release, the total amount set aside to fund the program is over NZ$200 million (about US$133.2 million). The press release set out the following key elements of the program:

  • The buy-back price will reflect the brand, make and model of the prohibited firearm; its base price; and its condition.
  • An extensive price list will be published [June 20, 2019,] by Police;
  • The compensation for prohibited firearms will be 95 per cent of base price for those in new or near-new condition; 70 per cent of base price for those in used condition; and 25 per cent of base price for those in poor condition;
  • The compensation for prohibited parts and magazines will be 70 per cent of base price for those in near new or used condition; and 25 per cent of base price for those in poor condition;
  • Compensation for prohibited firearms will only be paid to those with a valid firearms licence. Compensation for prohibited parts and magazines will not require a valid licence;
  • Dealers will be compensated for stock;
  • A new option allows owners of some prohibited firearms to have them modified by approved gunsmiths to make them lawful, with costs up to $300 met by the Crown;
  • Owners of unique or rare prohibited items may apply for compensation;
  • Four options for handing in prohibited firearms will be available in the community.

The Minister of Police, Stuart Nash, stated, “[t]he approach to prices balances fair compensation for people’s firearms and a fair cost for the tax payer. Police sought independent advice from KPMG to develop the price list. KPMG consulted farmers, hunters, dealers, auctioneers and gun clubs.” He further explained that

[t]here will be four options for collection: large-scale events at centralised community locations; handing over items at approved gun dealers; bulk pickups by Police; and at Police stations. Delivery to a Police station is the least preferred option.

The Police preference is for people to hand-in firearms, parts, magazines and ammunition at the large community events. This will be the most effective and efficient approach. Until then, firearms owners should keep their items safe and secure.

On July 4, 2019, New Zealand Police held a demonstration event during which they provided detailed information about the procedures to be followed at community events to be held throughout the country. In the first step, gun owners enter a “safe zone” containing a number of bullet traps and firearms chamber flags and are met by a member who “asks them if they’ve cleared their firearm, assists them to clear their firearm, and makes sure the firearm is safe and clear so that everybody is safe on the site when they carry on through the event.” Those who have not filled out the online form detailing their firearms ownership are directed to self-service kiosks in order to complete this step. Owners “either head to a desk for people using the amnesty, or to the buy-back desk for those seeking compensation.” Those seeking compensation will need to agree on the condition of their firearm and provide bank account information in order for the relevant payment to be processed, which will occur within 10 working days. According to the Police, “[s]ome guns will be disabled on the spot using a hydraulic press, which has been purchased from a family engineering business in Christchurch, while others will head into safe storage. They will later be transported to a secure location to be melted down or disposed of.”

At the time of the July 4 event, “[a]lmost 1000 guns ha[d] already been handed in to police, and another 8000 ha[d] been flagged for surrender through the online registration process.” Police expect that “tens of thousands” of guns will be handed in and destroyed during the six month program.

The first firearms collection event took place in Christchurch on July 13–14, and will be followed by 257 events around the country over the next three months. During the first event, “169 firearms owners handed in a total of 224 prohibited firearms, and 217 parts and accessories, with [NZ]$433,682 [aboutUS$257,223] compensated.”

One lobby group, the Council of Licenced Firearms Owners, said that many gun owners were disappointed and angry about the buyback prices being offered by the government. A spokeswoman for the group stated that “[m]ost of the feedback we’re receiving from our membership is that some of the higher-end firearms have been grossly miscalculated, and especially the parts – most of which are brand new – are being offered back at 70 percent or less of their value. Magazine values are also well off the price mark.” Furthermore, no prices were offered for related items, such as safes and ammunition, she said.

The National Party, currently the main opposition party in the Parliament, also raised concerns that the prices offered by the government “will likely leave many owners out of pocket, undermining the legitimacy of the scheme.”

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European Union: European Court of Justice Rules on German Highway Toll for Passenger Vehicles

(July 11, 2019) On June 18, 2019, the European Court of Justice (ECJ) held that the German highway toll for passenger vehicles is incompatible with European Union (EU) law, in particular with the principles of the free movement of goods and the freedom to provide services. It stated that the toll in combination with the relief from the motor vehicle tax for owners of vehicles registered in Germany constituted indirect discrimination on grounds of nationality, because the toll is de facto paid only by owners of vehicles registered in other EU Member States. (Case C‑591/17, Republic of Austria v. Federal Republic of Germany, ECLI:EU:C:2019:504, InfoCuria website; Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) arts. 26, 28–37, 56–62, 2016 O.J. (C 202) 1, EUR-Lex website.)

Applicable Law

The Eurovignette Directive applies to vehicle taxes, tolls, and user charges imposed on vehicles. (Consolidated Version of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the Charging of Heavy Goods Vehicles for the Use of Certain Infrastructures (Eurovignette Directive), O.J. 1999 (L 187) 42), EUR-Lex website.) It provides that Member States may maintain or introduce tolls and/or user charges on the trans-European road network or on certain sections of that network, and on any other additional sections of their network of motorways. (Id. art. 7, para. 1.) Such tolls and user charges must be nondiscriminatory. (Id. art. 7, para. 3.) In addition, it provides that Member States may provide appropriate compensation for those charges. (Id. art. 7k.)

The German Infrastructure Use Charge Act provides that all passenger vehicles that use federal roads, including highways, must pay an “infrastructure use charge.” (Gesetz über die Erhebung einer zeitbezogenen Infrastrukturabgabe für die Benutzung von Bundesfernstraßen [Infrastrukturabgabengesetz] [InfrAG] [Act on the Levying of a Time-Limited Infrastructure Use Charge for the Use of Federal Roads] [Infrastructure Use Charge Act], June 8, 2015, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 904, as amended, § 1, German Laws Online website; Bundesfernstraßengesetz [FStrG] [Federal Roads Act], June 28, 2007, BGBl. I at 1206, as amended, § 1, German Laws Online website.) Owners of vehicles registered in Germany must purchase an annual vignette for €130 (about US$148). Owners of vehicles registered outside of Germany may choose between a 10-day vignette (€2.50–€25 (about US$2.84–US$28)), a 2-month vignette (€7–€50 (about US$8–US$57)), and an annual vignette (maximum of €130). (Infrastructure Use Charge Act § 8 in conjunction with annex.)

The German Motor Vehicle Tax Act provides that vehicles registered in Germany receive relief from the annual tax on motor vehicles corresponding to at least the amount of the infrastructure use charge if they comply with certain emission standards. (Kraftfahrzeugsteuergesetz [KraftStG 2002] [Motor Vehicle Tax Act], Sept. 26, 2002, BGBl. I at 3818, as amended by the Zweites Verkehrsteueränderungsgesetz [Second Act Amending the Road Traffic Tax Act] and the Gesetz zur Änderung des Zweiten Verkehrsteueränderungsgesetzes [Act Amending the Second Act Amending the Road Traffic Tax Act] § 9, para. 6.)

Facts of the Case

In 2015, Germany passed the Infrastructure Use Charge Act, which introduced a road infrastructure charge on passenger vehicles using federal roads, including highways. The proceeds from the charge would be wholly used for the improvement of the federal transport infrastructure. The German government has said it intends to move from financing the federal road infrastructure by means of taxation to financing by users. (Case C‑591/17, para. 18.) The charge would be calculated on the basis of cylinder capacity, the type of engine (positive ignition or compression ignition), and emission standards. (Id. para. 8.) According to the Second Act Amending the Road Traffic Tax Act, the relief from the motor vehicle tax for vehicles registered in Germany would enter into force once collection of the infrastructure use charge had started. (Second Act Amending the Road Traffic Tax Act, art. 3, para. 2.) That date has not yet been determined.

On June 18, 2015, the European Commission initiated infringement proceedings against Germany and eventually referred the case to the European Court of Justice (ECJ). (Case C-591/17, para. 14.) However, after Germany amended the Infrastructure Use Charge Act, the European Commission terminated the infringement proceedings on May 17, 2017. (Id. at 15.) In July 2017, Austria informed the European Commission that it considered the combined effects of the infrastructure use charge and the relief for owners of vehicles registered in Germany an infringement of EU law. As the European Commission did not issue a reasoned opinion within the three-month period provided for in article 259 of the TFEU, Austria brought infringement proceedings against Germany before the ECJ. (Id. paras. 16–21.)

Ruling

The ECJ held that the combined effects of the infrastructure use charge and the relief from the motor vehicle tax for vehicles registered in Germany constituted indirect discrimination on the grounds of nationality contrary to article 18 of the TFEU. (Id. para. 78.) The Court recalled that the principle of nondiscrimination prohibits both direct discrimination and indirect discrimination that leads to the same result. (Id. para. 42.) It stated that even though all users of German federal roads are subject to the infrastructure use charge, only owners of vehicles registered in Germany qualify for the relief. Therefore, the infrastructure use charge is de facto paid only by owners of vehicles registered in other Member States. The Court added that, in general, owners of vehicles registered in Germany are German nationals, so that the difference in treatment has the same effect as a difference in treatment based on nationality. (Id. paras. 48–51.)

The ECJ also held that Germany has not provided evidence that the purpose of the infrastructure use charge is to move from a system of financing the federal road infrastructure by means of taxation to financing by users. (Id. para. 69.) Owners of vehicles registered in Germany may buy only an annual vignette irrespective of their actual use of federal roads. Furthermore, they receive relief from the infrastructure use charge in an amount at least equivalent to the charge. (Id. para. 68.) The Court concluded that the “user pays” principle therefore applies only to owners of vehicles registered in other EU Member States, whereas the financing by means of taxation continues to apply to owners of vehicles registered in Germany. (Id. para. 69.) The ECJ also found no evidence that the indirect discrimination was justified by environmental or other considerations. (Id. paras. 75–77.)

However, the Court rejected the claim that the rules for the structuring and application of the infrastructure use charge are discriminatory. It held that the possibility of requiring offenders using a vehicle registered in a Member State other than Germany to pay a sum as security in order to ensure payment of the fine imposed is proportionate to the objective pursued. The Court stated that there is a risk that the fine imposed may not be collected or may be collected only with great difficulty. (Id. paras. 107 & 109.)

With regard to the principle of the free movement of goods, the ECJ ruled that the national measures restrict the access to the German market of goods from other Member States. (Id. para. 134.) It recalled that “the free movement of goods between Member States is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect.” (Id. para. 119.) According to its settled case-law on the issue, measures having equivalent effect to quantitative restrictions include any measure “that is capable of hindering, directly or indirectly, actually or potentially, intra-Union trade” or a measure that “hinders access to the market of a Member State of products originating in other Member States.” (Id. paras. 120 & 121.) The Court concluded that, as only owners of vehicles registered in other EU Member States are de facto subject to the infrastructure use charge, the charge will increase the costs of transport and the price of those goods and affect their competitiveness. (Id. para. 127.)

In addition, the ECJ also found an infringement of the principle of freedom to provide services. (Id. paras. 144 & 149.) It reiterated its case-law that “[a]rticle 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State” and that “[n]ational measures which prohibit, impede or render less attractive the exercise of the freedom to provide services are restrictions on that freedom.” (Id. paras. 135 & 136.) On the other hand, freedom to provide services does not cover “measures the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State.” (Id. para. 137.) As already stated with regard to the free movement of goods, the Court held that the combined effects of the national measures at issue will either increase the cost of services supplied in Germany by service providers from outside of Germany, or increase the cost for service recipients travelling into Germany. (Id. para. 144.)

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