----

Action brought on 30 March 2004 by the Republic of Austria against the European Parliament and the Council of the European Union (fax of 24 March 2004)

(Case C-161/04)

(2004/C 106/86)

An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 30 March 2004 (fax of 24 March 2004) by the Republic of Austria, represented by Harald Dossi, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments:

In the opinion of the Republic of Austria, Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 should be declared void on the following grounds:

In light of the scientifically supported prognosis, the contested regulation falls to be classified as being (entirely) inappropriate for attaining the objective, set out in its preamble, of reducing pollution by heavy goods traffic as a sustainable and environmentally acceptable solution.

Further, the burdens imposed by the regulation are out of all reasonable proportion to the means provided for achieving that objective.

On the basis of a cost estimate established by the operator of the electronic ecopoint system applying up to now, it is to be assumed that the restructuring and/or reinforcement of the ecopoint system in force up to 31 December 2003 that will be required for the purpose of implementing the contested regulation, in conjunction with the current operating and maintenance works, will involve costs totalling some EUR 9 million.

As implementation of the contested regulation would give rise to costs in the region of EUR 9 million and ultimately only an increase in emissions could thereby be ‘achieved’, the contested regulation infringes in any event the primary-law principle of proportionality and for that reason alone must therefore be declared void.

The contested regulation fails to do justice to the guarantee of maximal and optimal environmental protection laid down in Article 6 EC, because it will bring about, not a reduction, but rather an increase in emissions. To that extent the contested regulation (also) breaches Article 6 EC.

The contested regulation is also unlawful inasmuch as it is at variance with the primary-law obligations under the Transit Protocol. Although the ecopoint system expired at the end of 2003, the objective of a sustainable and environmentally appropriate resolution of the environmental problems caused by traffic, implicit in the Transit Protocol, none the less remains unachieved.

The transitional provisions in Article 11 of the Transit Protocol cannot be construed as meaning that the rules on protection of the environment and the health of the population, initially guaranteed in the EEC-Austria Transit Agreement and subsequently incorporated in the Transit Protocol, were simply to ‘expire’ (without being replaced) after a specified transitional period and be mandatorily ‘tipped over’ into a Community-law system providing a (significantly) lower standard of protection.

Such transitional provisions would in large measure lose their useful effect and ought therefore to have been expressly and unequivocally designated as being transitional, had the Member States, as ‘Lords of the Treaties’, actually so intended.

If the objective of the transit regime - videlicet, protection of the environment and health of the population in general and a 60 % reduction in NOx emissions in particular - is also to apply after expiry of the transitional period on 31 December 2003, that objective, as a constituent part of the Transit Protocol and thus part of primary Community law, is binding on the European Community.

The Community is in this case obligated to continue to comply with the objective of the transit regime. Provisions of secondary law which do not permit attainment of that objective must be classified as unlawful. The contested regulation fails in any event to achieve the binding objective deriving from the Transit Protocol and is for that reason at variance with primary law.

As is clear from the traffic and emissions report of 1 March 2004 entitled ‘LKW-Transitverkehr durch Österreich: Bilanz und Ausblick’ (‘HGV transit traffic through Austria: a balance and outlook’), it falls to be assumed that at any rate when the contested regulation comes into force there will be an increase in emissions, quite apart from the fact that the objective under Protocol No 9 to the 1994 Act of Accession (OJ 1994 C 241 of 29 August 1994, p. 361), that is to say, a reduction of nitrous oxide emissions of 40 % vis-à-vis the base value, could not be achieved at any given point during the period for which the agreement ran or on a permanent basis. Those emissions could, for the year 2006, amount to as much as 133 % or, viewed realistically, even 260 % (measured against the abovementioned base value).

The contested regulation is contrary to the Community-law principle of certainty and is for that reason at variance with primary law.

----

(1)  OJ 2003 L 345, p. 30.

----