The clash of free movement of goods and human rights policies between Italy and Austria began all the way back in 2000, when a very important case called Schmidberger was lodged before the Court of Justice of the European Union. This was a case in which a German trucking company accused the Austrian authorities of allowing a protest against the environment to proceed, at the expense of their trucking company, which needed to get across the Brenner Pass highway between Austria and Italy (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). Therefore, this triggered a clash between free movement of goods policies and human rights policies (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

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However, despite this important judgement and the crucial clarifications that came with it, the competition problems between Italy and Austria regarding the transportation of goods across the Brenner Pass highway are still not solved to this day, despite Italy’s threats of taking this issue to the Court of Justice of the European Union. Therefore, this article will go into more detail and analyse both the Schmidberger case (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003) and the unsolved competition problems that followed after it between Italy and Austria. In addition, this article will answer the following questions: ‘’How did free movement of goods policies clash with human rights policies in the Austria-Italy Brenner pass issue?’’, ‘’Are Austria’s measures against free movement of goods justified?’’ and ‘’What does the future hold in regard to the unsolved competition problems between Italy and Austria?’’.

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As mentioned above, the first problem in the Austro-Italian Brenner Pass highway competition problems arose back in the 2000’s and were outlined in the famous Schmidberger case. (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). In this particular case, an international transport company called Schmidberger, based out of Germany, which was responsible for the transportation of timber from Germany to Italy and steel back from Italy lodged an action before the Innsbruck Regional Court, claiming damages of 140000 Austrian schillings for not being able to use the Brenner Pass highway between the 11th and the 14th of June 1998 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). The company claimed that its trucks could not use this highway on Thursday, 11th of June 1998, because it was a bank holiday in Austria, and on that day, no trucks over 7.5 tonnes could travel across the pass, excepting at certain hours (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

 

In addition, on the 13th and 14th of June 1998, no trucks over 7.5 tonnes could use the pass, since those days fell on a Saturday and Sunday, respectively (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). This automatically means that the same restrictions from bank holidays applied to weekend days as well (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). Also, they additionally claimed that their path was blocked by a protest organized between the 12th and the 13th of June 1998 by the Transitforum Austria Tyrol, which is an association committed to protecting the biosphere in the Alpine region (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). Unfortunately for them, the Innsbruck Regional Court was not convinced by their arguments and thereby closed down the complaint, as the company could not prove its pecuniary loss claim and did not provide all the facts needed for a judgement that could turn out in their favour (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

Afterwards, the company lodged an appeal before the Innsbruck Higher Regional Court (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003), who then went on to state that this case needed to be analysed in terms of the European provisions related to free movement of goods and Articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). As a result, it forwarded this case to the Court of Justice of the European Union, who received it on their table on the 24th of March 2000 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

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In addition, the referring court also launched some question towards the CJEU, which were as follows: ‘1. Are the principles of the free movement of goods under Article 30 et seq. of the EC Treaty (now Article 28 et seq. EC), or other provisions of Community law, to be interpreted as meaning that a Member State is obliged, either absolutely or at least as far as reasonably possible, to keep major transit routes clear of all restrictions and impediments, inter alia, by requiring that a political demonstration to be held on a transit route, of which notice has been given, may not be authorised or must at least be later dispersed, if or as soon as it can also be held at a place away from the transit route with a comparable effect on public awareness?,

 

2. Where, on account of the failure by a Member State to indicate in its national provisions on freedom of assembly and the right to exercise it that, in the weighing of freedom of assembly against the public interest, the principles of Community law, primarily the fundamental freedoms and, in this particular case, th provisions on the free movement of goods, are also to be observed, a political demonstration of 28 hours' duration is authorised and held which, in conjunction with a pre-existing national generally applicable ban on holiday driving, causes an essential intra-Community goods transit route to be closed, inter alia, to the majority of heavy goods traffic for four days, with a short interruption of a few hours, does that failure constitute a sufficiently serious infringement of Community law in order to establish liability on the part of the Member State under the principles of Community law, provided that the other requirements for such liability are met?,

 

3. Where a national authority decides that there is nothing in the provisions of Community law, in particular those concerning the free movement of goods and the general duty of cooperation and solidarity under Article 5 of the EC Treaty (now Article 10 EC), to preclude, and thus no ground on which to ban, a political demonstration of 28 hours' duration which, in conjunction with a pre-existing national generally applicable ban on holiday driving, causes an essential intra-Community goods transit route to be closed, interalia, to the majority of heavy goods traffic for four days, with a short interruption of a few hours, does that decision constitute a sufficiently serious infringement of Community law in order to establish liability on the part of the Member State under the principles of Community law, provided that the other requirements for such liability are met?,

 

4. Is the objective of an officially authorised political demonstration, namely that of working for a healthy environment and of drawing attention to the danger to public health caused by the constant increase in the transit traffic of heavy goods vehicles, to be deemed to be of a higher order than the provisions of Community law on the free movement of goods under Article 28 EC?,

 

5. Is there loss giving rise to a claim founded on State liability where the person incurring the loss can prove that he was in a position to earn income, in the present case from the international transport of goods by means of the heavy goods vehicles operated by him but rendered idle by the 28 hour demonstration, yet is unable to prove the loss of a specific transport journey? and,

 

6. If the reply to Question 4 is in the negative: In order to comply with the obligation of cooperation and solidarity incumbent under Article 5 of the EC Treaty (now Article 10 EC) on national authorities, in particular the courts, and with the principle of effectiveness, must application of national rules of substantive or procedural law curtailing the ability to assert claims which are well founded under Community law, such as in the present case a claim founded on State liability, be deferred pending full elucidation of the substance of the claim at Community law, if necessary following a reference to the Court of Justice for a preliminary ruling?’ (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

 

In its final judgement, the Court of Justice of the European Union took the side of the referring court, by claiming that there was an evident clash between Articles 34 and 35 of the TFEU (Consolidated Version of The Treaty On The Functioning Of The European Union, 2016, pp. 13-14) and to a limited extent, Article 36 of the TFEU (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003), and Articles 10 and 11 of the ECHR, which relate to freedom of expression and freedom of assembly (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

 

However, the CJEU also stated that the Tyrolean authorities did not do anything wrong in regard to the protest (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). Firstly, this protest was announced well in advance and respected certain provisions of national Austrian laws, namely Paragraph 2 of the Law on assembly of 1953 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003) and Paragraph 86 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003) of the Highway Code of 1960 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). Then, after the chairman of the association delivered his press conference, Austrian and German media and motoring associations immediately started to supply information about the protest and the closure of the Brenner Pass highway on those particular days, and with plenty of time in advance (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). Finally, this particular protest was a non-violent protest, as the aim of the protesters was to alert the authorities to a certain problem, and not disrupt the free movemen of goods in any way (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

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Despite this landmark ruling in regard to the clash between free movement of goods and human rights policies, the competition problems between Italy and Austria still linger on to this day. Firstly, in 2002, the Austrians implemented a restriction banning trucks from driving over the pass at night (Financial Times, 2023). Then, in 2016, the Austrians implemented one further restriction, namely that trucks could go across the Brenner pass highway only at certain hours or only on certain days (Financial Times, 2023). This was done, according to Austrian Transport Minister Leonore Gewessler and Tyrolean Prime Minister Anton Mattel (Voice of Europe, 2023), in order to protect the environment (Financial Times, 2023), to maintain security (Schroeder, 2023), to protect the health of Tyrolean people (Kurmayer, 2023) and to protect their infrastructure (Kurmayer, 2023). According to Article 36 of the TFEU, the protection of the environment is a valid ground, as one of the requirements actually refers to protection of the environment, as outlined in the Commission v Denmark judgement of 1988, related to Danish bottles (Commission v Denmark, 1988). Additionally, the protection of the health of the Tyrolean people is also another valid ground under Article 36 of the TFEU (Consolidated Version of The Treaty On The Functioning Of The European Union, 2016, p. 14).

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Furthermore, Mattel then went on to state that the amount of truck traffic that has gone over the pass has risen from 1.1 million trucks in 2000 to over 2.5 million trucks in 2022 (Voice of Europe, 2023). Therefore, according to those statistics, the Brenner pass traffic alone contributes to over 40 per cent of all freight that crosses over Alpine roads (Voice of Europe, 2023). As a result, the Austrian transport minister said that it would be better for negotiations to start between themselves and Italy towards a bookable ’slot system’, which could be used by trucks in the future (Voice of Europe, 2023). This was fully endorsed by the Austrian government, the states of Tyrol and South Tyrol and the Bavarian state Transport Minister, Christian Bernreiter (Voice of Europe, 2023).

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Nonetheless, these measures were not received well by Italian truckers, who claim that it costs them around 250 million Euros a year in getting their goods across the Italian-Austrian border, just because of long queues and delays (Financial Times, 2023). Furthermore, these measures also caused anger with the Italian government, especially with the far-right transport Minister, Matteo Salvini (Voice of Europe, 2023).

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Hence, this all came to a head in 2023. Essentially, during that year, Matteo Salvini threatened that he would lodge an action before the Court of Justice of the European Union against Austria, for their application of ’travel bans’ on the trucks that need to cross the Brenner Pass highway into Austria (Voice of Europe, 2023). Essentially, he accused the Austrian government of practicing a policy of unfair competition against Italian, German, and  other European entrepreneurs and transporters (Pascale, 2023). Then, he even went as far as describing Austria's actions as an act of violence and political arrogance (Pascale, 2023).

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Finally, he stated that the actions undertaken by Austria represent a breach of free movement of goods (Financial Times, 2023), namely with the introduction of restrictions under Articles 34, 35 and 36 of the TFEU, a breach of the concept of free movement of people (Financial Times, 2023), outlined in Article 45 of the TFEU (Consolidated Version of The Treaty On The Functioning Of The European Union, 2016, p. 18) and finally, a breach of the concept of free movement of services, which is outlined in Article 56 of the TFEU (Consolidated Version of The Treaty On The Functioning Of The European Union, 2016, p. 23). At this point, this is not only a free movement of goods issue, but also a human rights issue.

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As a result, all of the claims outlined above could become valid grounds for an action before the CJEU, as Article 259 of the TFEU says that one state can actually lodge an action against another state, if they suspect that the other state is breaching an EU law provision (Kurmayer, 2023). However, there is one caveat in regard to this. The European Commission needs to be first notified about such a problem, before the legal proceedings are undertaken (Voice of Europe, 2023). Afterwards, the European Commission is then given 3 months to respond to this issue (Voice of Europe, 2023). If this does not happen within this time, the country is free to pursue legal action on its own (Voice of Europe, 2023).

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To conclude, this article has analysed the Schmidberger case and the subsequent unsolved competition problems between Italy and Austria. It has done so by referring to the following three questions: ‘’How did free movement of goods policies clash with human rights policies in the Austria-Italy Brenner pass issue?’’, ‘’Are Austria’s measures against free movement of goods justified?’’ and ‘’What does the future hold in regard to the
unsolved competition problems between Italy and Austria?’’.

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In regard to the first question, in the Schmidberger case, the CJEU found out that there was a clash between free movement of goods provisions outlined in Articles 34, 35 and 36 of the TFEU and the human rights provisions outlined in Articles 10 and 11 of the ECHR, which relate to freedom of expression and freedom of assembly (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003). However, the CJEU also determined that the protest was entirely legal, announced well ahead of time and respected certain provisions of national Austrian laws, such as Paragraph 2 of the Law on assembly of 1953 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003) and Paragraph 86 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003) of the Highway Code of 1960 (Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003).

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When it comes to the recent unsolved competition problems between Italy and Austria, Austria implemented a series of discriminatory measures against the truckers that wanted to use the Brenner Pass highway, such as specific days or times when truckers could cross froItaly and Austria or back (Financial Times, 2023). These were implemented mainly for environmental reasons (Voice of Europe, 2023), which according to Matteo Salvini, represented unfair competition against Italian, German, and other European entrepreneurs and transporters (Pascale, 2023), an act of violence and political arrogance (Pascale, 2023) and a breach of free movement of goods (Financial Times, 2023), namely with the introduction of restrictions under Articles 34, 35 and 36 of the TFEU, a breach of the concept of free movement of people (Financial Times, 2023), outlined in Article 45 of the TFEU (Consolidated Version of The Treaty On The Functioning Of The European Union, 2016, p. 18) and finally, a breach of the concept of free movement of services, which is outlined in Article 56 of the TFEU (Consolidated Version of The Treaty On The Functioning Of The European Union, 2016, p. 23). Therefore, in regard to the second question, we can say that the measures implemented by Austria against free movement of goods are absolutely not justified at all, as explained above.

 

Finally, in regard to the third question, the future could either be bright or bleak. Essentially, this depends on Italy and its government and whether they go through with their action against the unfair actions of Austria (Schroeder, 2023). Regardless, this will force the CJEU to make a historic ruling on this matter (Schroeder, 2023). If the CJEU rules in Italy’s favour, it could force Austria to make some concessions in its Brenner Pass policies, which would invaluably help Italian and other European transporters that need to take their goods through the area (Schroeder, 2023). However, if the CJEU makes a ruling in favour of Austria, other EU Member States might be encouraged to impose the same types of restrictions, which will certainly disrupt the free movement of goods, services and implicitly, people, within the EU (Schroeder, 2023).​
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References​​

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The Court, Case 302/86, Commission v Denmark, 1988 [Online]. Available at: https://eur-lex.europa.eu/resource.html?uri=cellar:672ac3d2-ebcc-4078-8282-8e14e241c073.0002.03/DOC_1&format=PDF (Accessed on the 21st of May 2025).

Consolidated Version of The Treaty On The Functioning Of The European Union, (2016/C202/01), (OJ C 202, 7.6.2016, p.1-329) [Online]. Available at: https://eur-lex.europa.eu/resource.html?uri=cellar:9e8d52e1-2c70-11e6-b497-01aa75ed71a1.0006.01/DOC_3&format=PDF (Accessed on the 21st of May 2025).

ECJ, Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, 2003 [Online]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62000CJ0112 (Accessed
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Financial Times, (2023), Truck off [Online]. Available at: https://www.ft.com/content/c9545822-0f9e-4b78-aa74-1aabb7ef8f61 (Accessed on the 21st of May 2025).

Kurmayer, N.J. (2023), Transit clash with Italy: Vienna not worried [Online]. Available at: https://www.euractiv.com/section/politics/news/transit-clash-with-italy-vienna-not-worried/ (Accessed on the 21st of May 2025).

Pascale, F. (2023), Salvini slams Austria for blocking border crossing, threatens EU court case [Online]. Available at: https://www.euractiv.com/section/politics/news/salvini-slams-austria-for-blocking-border-crossing-threatens-eu-court-case/ (Accessed on the 21st of May 2025).

Schroeder, B. (2023), Italy vs Austria: The Brenner Pass Dispute Escalates to the EU Court of Justice [Online]. Available at: https://www.thediplomaticaffairs.com/2023/10/18/italy-vs-austria-the-brenner-pass-dispute-escalates-to-the-eu-court-of-justice/ (Accessed on the 21st of May 2025).

Voice of Europe, (2023), Italy sues Austria before the European Court of Justice over blockade handling at the Brenner Pass [Online]. Available at: https://www.voiceofeurope.com/italy-sues-austria-before-the-european-court-of-justice-over-blockade-handling-at-the-brenner-pass/ (Accessed on the 21st of May 2025).

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