# C_2004300EN.01004401.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/44 |
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4.12.2004

EN

Official Journal of the European Union

C 300/44

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Action brought on 1 September 2004 by the Republic of Austria against the Commission of the European Communities

(Case T-361/04)

(2004/C 300/86)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 September 2004 by the Republic of Austria, represented by Ministerialrat H. Dossi, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the decision underlying the Commission's letter of 22 June 2004, whereby the Commission declined to submit the draft of a successor regulation to the ecopoints regulation or similar regulation for the safeguarding of the environment and public health on a lasting and environmentally sound basis within the meaning of Protocol No 9 to the Act of Accession, thereby finally rejecting the Austrian Republic's call upon the Commission to act of 31 March 2004; |
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annul the decision underlying the Commission's letter of 22 June 2004, whereby the Commission declined to submit the draft of a successor regulation to the ecopoints regulation or similar regulation for the safeguarding of the environment and public health on a lasting and environmentally sound basis within the meaning of Protocol No 9 to the Act of Accession, thereby finally rejecting the Austrian Republic's call upon the Commission to act of 31 March 2004;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

Protocol No 9 on road, rail and combined transport in Austria to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded of 24 June 1994 contains special provisions for the transit of heavy goods vehicles through Austria for the protection of the environment and human health. According the the applicant, the aim of these provisions is to reduce the total NOx-emissions of heavy goods vehicles in transit through Austria [...] in the period between 1 January 1992 and 31 December 2003 as shown by the table in Annex 4 by 60 %. In accordance with the meaning and general economy of that provision, total NOx-emissions were thus to be reduced by 60 %.

The applicant argues that Article 11(4) of the Protocol speaks of the sought-after 60 % reduction in the Nox-emissions of heavy goods vehicles in transit being attained on a lasting and environmentally sound basis, and that it therefore assumes that that aim formulated in the Protocol continues to have effect after the formal expiry of the transit system on 31 December 2003. In the submission of the Republic of Austria, the aims of the Protocol continue to be binding, and there is therefore a legal requirement to adopt a successor regulation to the ecopoints regulation in conformity with primary law, or a regulation which similarly secures the aim of the transit protocol.

The applicant argues that Regulation (EC) No 2327/2003 (1), adopted by the Council and the Parliament in the meantime, does not meet the requirement that environmental and public health protection be secured on a lasting and environmentally sound basis within the meaning of the provisions of Protocol No 9, and that the applicant has therefore challenged it in an annulment action (2). That means that, at present, there is no Community law protective regime in existence to comply with the continuing binding primary law objectives of the Protocol, and the Commission fails in its duty to act by not immediately submitting a draft of a transitional regime pending the adoption of the new transport costs directive.

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The applicant therefore argues that the Commission's final refusal of 22 June 2004 to act in accordance with that duty to act should be annulled.

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(1)  Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 establishing a transitional points system applicable to heavy goods vehicles travelling through Austria for 2004 within the framework of a sustainable transport policy (OJ 2003 L 345, p. 30).

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(2)  Case C-161/04 Republic of Austria v Council and Parliament (OJ 2004 C 106, p. 49)

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