Case C-445/00: Action brought on 4 December 2000 by the Republic of Austria against the Council of the European Union
Date: 2001-02-10
Institutions: Court of Justice
Subjects: Austria, Council of the European Union, action for annulment (EU), road transport, transit, vehicle documents

10.2.2001

EN

Official Journal of the European Communities

C 45/9

2. Have those materials been ‘recycled’ for the purposes of
European Parliament and Council Directive 94/62/EC (4)
on packaging and packaging waste when they have been:

Pleas in law and main arguments

a.

rendered suitable for use as a feedstock, or

b.

used by a steelmaker so as to produce ingots, sheets
or coils of steel?

(1) of 15 July 1975 (OJ L 194, 25.07.1975, p. 39).
(2) of 18 March 1991 (OJ L 78, 26.03.1991, p. 32).
(3) of 24 May 1996 (OJ L 135, 06.06.1996, p. 32).
(4) of 20 December 1994 (OJ L 365, 31.12.1994, p. 10).

Action brought on 4 December 2000 by the Republic of
Austria against the Council of the European Union

(Case C-445/00)

(2001/C 45/19)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 4 December 2000 by the Republic of Austria,
represented by Harald Dossi, acting as Agent, with an address
for service in Luxembourg.

— Infringement of essential procedural requirements in
the creation of the contested regulation: The plaintiff
complains in particular that there has been no collegiate
decision of the Commission in relation to the amendment
of the Commission proposal, which took the form of
adopting the content of a compromise suggestion of the
Council. A collegiate decision of the content claimed by
the Commission representative at the meeting of the
Committee of Permanent Representatives, namely to
empower the relevant Commissioner to amend the
original Commission proposal accordingly, should a
formulation commanding a qualified majority be found
in the Council, is, the plaintiff maintains, not sufficient.
That would not ensure that the College of the Com-
mission was informed about the essential elements of the
amended proposal, let alone ensure that it deliberated
over them as a body. If, therefore, a lawful (amended)
proposal of the Commission had not at any time been
submitted as the basis for the Council decision finally
taken, the Council had no authority to decide upon the
matter by qualified majority.

— (In the alternative)

Infringement of

the Treaty by
amending the Commission proposal after it had been
submitted to the Council: The Republic of Austria submits
that the Commission does not have the authority under
the procedure pursuant to Article 16 of Protocol No 9 to
the 1994 Act of Accession to alter a proposal once it has
been submitted to the Council, if the Council does not
pronounce against the proposal by qualified majority.

— (In the alternative)

Insufficient statement of reasons,

infringement of Article 253 EC.

The Republic of Austria claims that the Court should:

— (In the alternative) Infringement of the EC Treaty and/or

Protocol No 9 to the 1994 Act of Accession:

1. Annul Council Regulation (EC) No 2012/2000 of 21 Sep-
tember 2000 (1) amending Annex 4 to Protocol No 9
to the 1994 Act of Accession and Regulation (EC)
No 3298/94 (2) with regard to the system of ecopoints
for heavy goods vehicles transiting through Austria;

2. Order the Council to pay the costs.

In the alternative, the Republic of Austria claims that the Court
should:

1. Annul Article 1 and Article 2(1) and (4) of Council
Regulation (EC) No 2012/2000 of 21 September 2000
amending Annex 4 to Protocol No 9 to the 1994 Act of
Accession and Regulation (EC) No 3298/94 with regard
to the system of ecopoints for heavy goods vehicles
transiting through Austria;

2. Order the Council to pay the costs.

— Article 1 of the contested regulation has as its
subject-matter a formal alteration to Annex 4 to
Protocol No 9, which is anchored in primary law;
there is no authority in primary law for such an
alteration.

Even if, in the words it actually uses, Article 2(1) of
the contested regulation, whereby the reduction in
the number of ecopoints is generally spread over
several years, refers only to the amendment of
Article 6(2)(2) of Regulation (EC) No 3298/94, and
thereby gives the impression that only another
measure of secondary law is being altered, that
alteration also amounts to an alteration of rules of
primary law. That is because the ruling in Protocol
No 9 unequivocally and unmistakably provides for
the full reduction of the ecopoints to be curtailed
for the year following the exceeding of the 108 %
limit.

C 45/10

EN

Official Journal of the European Communities

10.2.2001

— The allocation of the reduction of the ecopoints
over several years carried out in Article 1 of the
contested regulation (‘stretching model’) and the
general
introduction of the stretching model by
Article 2(1) of the contested regulation are, in their
content, in clear contradiction of the primary law
rules in Protocol No 9.

Appeal brought on 1 December 2000 by P.-J. Cubero-
Vermurie against the judgment delivered on 3 October
2000 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-187/98 between
P.-J. Cubero-Vermurie and the Commission of the Euro-
pean Communities

The legal view clearly underlying the contested
regulation, namely that ‘absolute priority’ is to be
given to the free movement of goods and the
internal market, as opposed to other provisions and
policies of primary law, is not shared by the Republic
of Austria. Even the functioning of the internal
market is to be ensured only in compliance with the
requirements of environmental protection. It would
also have been possible to avoid detriment to the
internal market with the use of measures less
restrictive of the implementation of Protocol No 9.

— The reduction in ecopoint quotas carried out by the
contested regulation takes account only of a (pure)
causation principle and fails to take due account
also of the solidarity principle and the principle of
proportionality. Moreover, the use of the traffic
volume figures in the — arbitrarily chosen — years
1995 to 1997, in which the 108 % limit was not
exceeded, for comparison with figures for 1999, so
the
as to determine the ‘main perpetrator’ of
exceeding of
foundation in
(primary) law and leads to a disproportionate result.

that limit,

lacks all

— (In the alternative) Legal infringements and insufficient
statement of reasons when applying the calculation
method in accordance with paragraph 3 of Annex 5 to
Protocol No 9 to the 1994 Act of Accession: The system
underlying the contested regulation is, in view of the
extraordinary reduction in the number of ecopoints,
wrongly based on the exclusion, or failure to take account
of, ‘illegal’ transit journeys without payment of ecopoints.
There is no legal basis for that in Protocol No 9. An
interpretation of the calculation method laid down in
paragraph 3 of Annex 5 that corresponds to the declared
aims of Protocol No 9 can only be one which allows the
damage to the environment and to health arising from
‘illegal’ journeys also to be included in the calculation.

— (In the alternative) Infringement of the EC Treaty and/or
Protocol No 9 to the 1994 Act of Accession on account
of insufficient legal basis.

(1) OJ No L 241, 26.9.2000, p. 18.
(2) OJ No L 341, 30.12.1994, p. 20.

(Case C-446/00 P)

(2001/C 45/20)

in Case

An appeal against the judgment delivered on 3 October 2000
by the Fifth Chamber of the Court of First Instance of the
between
European Communities
P.-J. Cubero-Vermurie and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 1 December 2000 by P.-J. Cubero-
Vermurie, represented by E. Boigelot, of the Brussels Bar, with
an address for service in Luxembourg at the Chambers of
L. Schiltz, 2 Rue du Fort Rheinsheim.

T-187/98

The appellant claims that the Court should:

(1) declare the appeal admissible and well founded;

(2)

consequently:

(a)

set aside the contested judgment;

(b)

itself determine the case and, upholding the appel-
lant’s initial claim:

— annul the appointing authority’s decision of
6 April 1998 not to promote the appellant to
grade A 5 in the context of the 1998 promotion
procedure;

— annul the decision of 9 October 1998 expressly
rejecting the complaint against the decision
annulment of which is sought, that complaint
having been submitted by the appellant on
27 April 1998 and registered in the Secretariat-
General on 6 May 1998 under number
R/436/98;

— order the Commission of the European Com-
munities to pay to the appellant compensation
for the combined material and non-material
damage suffered by him, fixed on an equitable
basis in the sum of BEF 250 000;

— order the Commission of the European Com-
munities to pay all the costs in any event, both
of the first-instance proceedings and of the
present appeal.