OPINION OF THE COMMISSION pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council's common position regarding the proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an interim transit system applicable to heavy goods vehicles travelling through Austria for the year 2004 AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

2001/0310 (COD)

OPINION OF THE COMMISSION pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council's common position regarding the proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an interim transit system applicable to heavy goods vehicles travelling through Austria for the year 2004

1. Introduction

Article 251(2), third subparagraph, point (c) of the EC Treaty states that the Commission shall deliver an opinion on the amendments proposed by the European Parliament at its second reading. The Commission's position on the amendments adopted by Parliament is set out below.

2. Background

a) On 21 December 2001, the Commission forwarded to the Council and the European Parliament its proposal for a Regulation (COM(2001) 807 final - 2001/0310(COD)).

b) The European Economic and Social Committee delivered an opinion on the Commission's proposal on 30 May 2002.

c) On 12 February 2003, the European Parliament, at its first reading, delivered its opinion containing 16 amendments to the Commission proposal.

d) The Council adopted its common position on 28 March 2003.

e) On 3 July 2003, at its second reading, the European Parliament adopted a resolution containing 17 amendments to the common position.

3. Purpose of the proposal

On 20 December 2001, the Commission adopted a proposal for a Regulation of the European Parliament and of the Council [1] establishing an ecopoints system applicable to heavy goods vehicles travelling through Austria for the year 2004. The purpose of this proposal is to extend the ecopoints system as an interim solution pending the adoption of the framework proposal on infrastructure charging. If the framework proposal on infrastructure charging is not adopted, the ecopoints system will be maintained for an additional year and, if necessary, extended for two years at the most (1 + 1 + 1).

[1] COM(2001) 807 of 20 December 2001.

The Commission's proposal includes several significant points:

* the 108% clause (restriction of the number of transit journeys to an annual limit not exceeding 108% of the number of transit journeys in 1991) is abolished;

* the Regulation applies to the entire territory of Austria;

* the number of ecopoints is maintained at a fixed level, namely that of 2003, for the 15 Member States (no reduction).

4. Opinion of the Commission on the amendments adopted by the European Parliament

The European Parliament adopted, at its second reading, 17 amendments to the Council's common position.

The Commission can accept four amendments in full, two amendments in part, subject to possible changes in the wording and one amendment in principle, subject to redrafting.

However it has to reject 10 amendments whilst maintaining a certain flexibility for five of them, which could be negotiable at a later stage of the procedure.

4.1. Amendments accepted by the Commission (four amendments in full, two in part and one in principle).

4.1.1. Amendments that can be accepted in full.

The Commission considers that amendments 1 (title), 10 (introduction to Article 3(2)) and 12 (Article 3(2)(d)) are acceptable because they are proposals for amendments to terminology.

Amendment 3 (recital 3b) is also acceptable because it provides for the scope of the Regulation to be extended to the candidate countries, which was considered to be premature at the time of the European Parliament's first reading, but which must now be considered because the Accession Treaties were signed on 16 April 2003 and the date of accession has been fixed for 1 May 2004. The conditions for extending the scope of the Regulation to these countries will, nevertheless, still have to be determined.

4.1.2. Amendments that can be accepted in part.

Amendment 15 (Article 3(3a)) can be accepted in part. It provides that the comitology procedure will be used to:

- "fix the number of points to be allocated to the Member States;

- adopt detailed measures concerning the procedures relating to the system, the distribution of points and technical issues concerning the application of the system;

- increase proportionally for each new Member State and for each year the quotas ... taking account of the accession of central and eastern European countries."

The first and last subparagraphs are not acceptable. Fixing the number of points to be allocated to (current and future) Member States is an integral part of the negotiations on the type of system to be set up for heavy goods vehicles transiting through Austria. It is therefore up to the Council and the Parliament to decide on how to allocate the points by country and by year, possibly based on a quantitative analysis by the Commission.

The second subparagraph is acceptable without amendments to the text.

Amendment 16 (Article 4(1a)) can be accepted in part, namely only the first sentence, which reiterates the Commission's obligations which derive from the Treaty or which are recommended in the White Paper on European transport policy. However, the reference to the committee referred to in Article 5 should be deleted as a management committee does not take decisions.

The other parts of Amendment 16 are not acceptable. The Commission cannot endorse the "Alpine Convention and other binding instruments" being cited in the same way as the EC Treaty. The Commission cannot accept the final paragraph of the text either, which refers to traffic flow regulation, as this does not fall under Community competence but under that of the Member States, which are required to keep the Commission informed.

4.1.3. Amendments that can be accepted in principle.

Amendment 5 (recital 3d) can be accepted in principle. The reference to the Alpine Convention in a "recital" is acceptable provided that the quote included in the amendment is complete. The text quoted relates to the need to reduce the volume and dangers of Alpine traffic and continues as follows: "by switching more traffic, in particular freight traffic, to the railways in particular by providing appropriate infrastructure and incentives complying with market principles, without discrimination on grounds of nationality".

4.2. Amendments rejected by the Commission (10 amendments).

Amendment 2 (recital 3a) relating to the protection of the local population and noise pollution must be rejected for two reasons: firstly because, if lorries choose another route, it will be other populations which will be adversely affected. This measure therefore has a discriminatory effect. The second reason is that noise pollution has no relevance to the ecopoint system.

Amendment 4 (recital 3c) refers to the UNO declaring 2002 as the International Year of Mountains. This reference is no longer relevant.

Amendment 6 (recital 4a) refers to the obligations deriving from the Treaty on European Union and from the Alpine Convention. The Commission cannot endorse the Alpine Convention and other binding instruments being cited in the same way as the EU Treaty.

Amendment 11 (Article 3(2)(b)) abolishes exemptions to bans on the transit of certain types of EURO-0 lorries. The Commission must stick to its position regarding these exemptions, which were obtained when the common position was negotiated. It therefore has to reject this amendment.

Amendment 17 (Article 4(3a)) must be rejected because the Commission cannot support the introduction of systematic controls. According to Council Regulation (EEC) No 3912/92, roadside checks can only be performed at random. Moreover, Directive 2000/30/EC provides for polluting emissions to be measured and for roadworthiness tests to be appropriate to the reality of situations.

Amendments 7, 8, 9, 13 and 14 must be rejected because, at this stage of the procedure, the Commission is obliged to stick to its position on the Council's common position. However, these five amendments will probably be key issues during subsequent negotiations on the future system as they deal with territorial coverage, the application of weightings in the distribution of the Community reserve and the definition of ecopoint quotas.

Amendments 7 (Article 1(c)), 8 (Article 1(e)), 9 (Article 1 (fa)) and part of 14 (Article 3(3)) limit the application of the system to the Austrian Alps and in particular to the three main Alpine passes of Brenner, the Tauern and the Pyhrn. This is a radical departure from the existing system, which covers all Austrian territory, and will require technical adaptations that will be very difficult to put in place from 2004. However, checks undertaken by experts have shown that it is technically possible to remove ecopoint counting stations from one site and install them on another site. This change would be expensive for Austria, but would be possible.

Amendment 13 (Article 3(2)(g)) retains the idea of reallocating points of the Community reserve weighted in accordance with the actual use of the points allocated to the Member States. On the other hand it abolishes the preferential treatment given, in the reallocation of the Community reserve, to the specific needs of carriers transiting through Austria using the Hörbranz corridor. [2] The European Parliament refuses to accept this preferential treatment as the Hörbranz corridor is not a route for crossing the Alps. It does not therefore come within the system which it is advocating.

[2] The Hörbranz corridor is a 17 kilometre half-road/half-tunnel section linking Lindau (Germany) with St Margrethen (Switzerland).

Amendment 14 (Article 3(3)) sets a quota for lorries based on the 2002 ecopoint quota (10 533 187 for the 15 Member States). The Commission's proposal and the Council's common position however set the number of ecopoints on the basis of the 2003 quota (9 107 451), because it is in this year that the objective of a 60% reduction in pollution, provided for by the ecopoint system, should be achieved. The overall limit on total NOx emissions was in fact calculated for the year 1991 and was to be reduced on a linear basis by 60% by the end of 2003.

The exclusion of EURO 3 lorries from the system as from 2004, as proposed by the European Parliament, is not acceptable because, according to Austrian statistical forecasts, EURO 3 lorries will represent 77% of total transit journeys in 2004 (in 2001 they represented 24.5%). Even if there are doubts about the reliability of the Austrian statistics, these forecasts represent a realistic trend.

Finally, the system as proposed by the European Parliament in this amendment removes the ecopoint system's raison d'être, since, from 2005 onwards, only EURO 2 lorries will be subject to ecopoints, with the same number of ecopoints to be allocated to the Member States as in 2002 (namely 10 533 187).

5. Conclusion

The Commission points out that the European Parliament's position differs significantly from the text of the Council's common position and that, consequently, it will be necessary to make major efforts to reach a final agreement. In the context of the tasks incumbent upon it in the co-decision procedure under the Treaty, the Commission will continue to work towards an overall agreement which complies with the fundamental principle of the free movement of goods in the single market in conformity with the objective of promoting sustainable development in the European Union.

Pursuant to Article 250(2) of the EC Treaty the Commission hereby amends its proposal as set out above.