Case C-353/01 P: Appeal brought on 19 September 2001 by Olli Mattila against the judgment delivered on 12 July 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-204/99 between Olli Mattila and the Council of the European Union and the Commission of the European Communities
Date: 2001-11-10
Institutions: Court of Justice
Subjects: Council of the European Union, European Commission, General Court (EU), access to information, action for annulment (EU), right to information

C 317/18

EN

Official Journal of the European Communities

10.11.2001

Pleas in law and main arguments

The pleas in law and main arguments are identical to those
submitted in Case C-323/01 (2); the period prescribed for
transposition expired on 14 March 2000.

Appeal brought on 19 September 2001 by Olli Mattila
against the judgment delivered on 12 July 2001 by the
Fifth Chamber of the Court of First Instance of the
European Communities in case T-204/99 (1) between Olli
Mattila and the Council of the European Union and the
Commission of the European Communities

(1) OJ 1998 L 77, p. 36.
(2) See page 12 of this Official Journal.

(Case C-353/01 P)

(2001/C 317/34)

Action brought on 19 September 2001 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-352/01)

(2001/C 317/33)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 Sep-
tember 2001 by the Commission of the European Communi-
ties represented by Gregorio Valero Jordana, acting as Agent,
with an address for service in Luxembourg at the office of
L. Escobar Guerrero, Wagner Centre C 254.

The applicant claims that the Court should:

1. Declare that by not having adopted the laws, regulations
and administrative provisions necessary to comply with
Directive 98/8/EC of the European Parliament and of the
Council of 16 February 1998 concerning the placing of
biocidal products on the market (1) or, in any event, not
having communicated those provisions to the Com-
mission, the Kingdom of Spain has failed to fulfil its
obligations under that directive.

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those in
Case C-323/01 (2); the deadline for transposition expired on
13 May 2000.

(1) OJ L 123 of 24.4.1998, p. 63.
(2) See page 12 of this Official Journal.

An appeal against the judgment delivered on 12 July 2001 by
the Fifth Chamber of the Court of First Instance of the
European Communities in case T-204/99 between Olli Mattila
and the Council of the European Union and the Commission
of the European Communities, was brought before the Court
of Justice of the European Communities on 19 September
2001 by Olli Mattila, residing in Hyvinkää, Finland, represented
by Z. Sundström and M.R. Kauppi, Lawyers, with an address
for service in Luxembourg.

The Appellant claims that the Court should:

— annul the judgment of the Court of First Instance (Fifth

Chamber) of 12 July 2001;

— annul the decision of the Council and the Commission

which is the subject of the present appeal;

— invite the Council and the Commission to reconsider
their position and give access to the Appellant to the
requested documents;

— give access, at least partial access, to such documents after
cancelling or editing the sections which may justifiably
qualify as liable to prejudice the international relations of
the European Community;

— order jointly the Council and the Commission to pay the
costs incurred by the Appellant in these proceedings.

Pleas in law and main arguments

Instance
The Appellant contends that the Court of First
has incorrectly applied European Community Law, namely
93/731/EC of 20 December 1993(2) on public access to
Council documents and 94/90 ECSC, EC, Euratom of 8 Febru-
ary 1994 (3) on public access to Commission documents.

The pleas in support of the appeal are the following:

a. Manifest error of assessment in interpreting the exception
concerning the protection of international relations;

10.11.2001

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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.