Case C-356/01: Action brought on 20 September 2001 by the Republic of Austria by the Commission of the European Communities
Date: 2001-11-10
Institutions: Court of Justice
Subjects: Austria, European Commission, accession to the European Union, action for annulment (EU), tradeable emission permit, transport regulations

10.11.2001

EN

Official Journal of the European Communities

C 317/19

b.

c.

d.

e.

Breach of the principle of proportionality in that partial
access to the documents in question has not been granted
or even considered;

Breach of the principle that an application for access to
documents must be considered with regard to each
individual document;

Failure in the duty to state reasons;

of Protocol No 9 to the Act of Accession 1994 (1) and full
award of ecopoints for the year 2001.

— Order the Commission to pay the costs.

Pleas in law and main arguments

Failure to apply objectivity and equality in considering
the Appellant’s interest in having access to the documents;

( M a i n p l e a )

f.

Breach of the duty of independent review;

g. Misuse of power; and

h.

Failure to comply with the duty to co-operate.

(1) OJ C 333, 20.11.1999, p. 32.
(2) OJ 1993 L 340, p. 43.
(3) OJ 1994 L 46, p. 58.

Action brought on 20 September 2001 by the Republic of
Austria by the Commission of the European Communities

(Case C-356/01)

(2001/C 317/35)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 20 September 2001 by the Republic of
Austria represented by Dr Harald Dossi, of the Administrative
Service of the Federal Chancellor’s Office of the Republic of
Austria with an address for service in Luxembourg at the office
of the Ambassador Dr Christian Strohal, Austrian Embassy,
3 rue des Bains.

The applicant claims that the Court should:

— Annul the negative opinion of the Commission of 25 July
2001 definitively refusing the Republic of Austria’s
request under the second paragraph of Article 232 EC to
the Commission to act.

— Order the Commission to pay the costs.

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

— Declare null and void the Commission’s decision of
25 July 2001 ordering non-application of Article 11(2)(c)

Infringement of the EC Treaty or Protocol No 9 to the Act of
Accession 1994 by definitively refusing the request under the
second paragraph of Article 232 EC. The Commission wrongly
seeks to deduct journeys declared as transit journeys in respect
of which there is no information on departure (92 816 ), and
journeys declared as transit journeys where both entry and
departure were effected at the same border point (54 386 ),
from the number of transit journeys declared overall for the
year 2000 (1 696 794 ). The ecopoint system under Protocol
No 9 to the Act of Accession 1994 is based on the principle
of declarations. Accordingly, if journeys are clearly declared by
a driver as transit journeys, they fall within the ecopoint
statistics and are relevant to whether the 108 % threshold has
been exceeded; this is the point at which the Commission is
bound under Article 11(2)(c) of Protocol No 9, in conjunction
with Annex 5(3) thereof, to adopt certain measures, namely to
reduce the number of ecopoints the following year according
to a calculation method laid down in the Annex to the
Protocol. It cannot, in the light of the principle of declarations,
be for the Republic of Austria, either legally or factually, to
provide evidence in each individual case that, where a journey
is clearly declared to be a transit journey, such a transit journey
actually took place. The Republic of Austria merely has to
deduct journeys declared to be transit journeys where it is
beyond doubt that, despite a clear declaration, there cannot
have been a transit journey (which is the case in respect of
9 210 nbsp;statistically proven journeys on trains for the
carriage of heavy goods vehicles). The result is therefore clearly
that the 108 % threshold was exceeded in the year 2000. In
the light of its decision of 25 July 2001, the Commission
therefore failed to fulfil its obligations under Protocol 9 to the
Act of Accession 1994, in particular its obligations under
Article 11(2)(c) in conjunction with Article 16 and Annex 5(3)
to that Protocol, and that it has therefore created grounds for
annulment for infringement of the EC Treaty and/or Protocol
No 9 of the Act of Accession 1994 pursuant to the second
paragraph of Article 230 EC Treaty.

( I n t h e a l t e r n a t i v e )

Infringement of the EC Treaty and/or Protocol No 9 to the Act
of Accession 1994. The applicant refers to the first plea in law
in relation to the grounds for its observations.

(1) Protocol No 9 on road, rail and combined transport in Austria.