Case C-296/02: Action brought on 20 August 2002 by the Republic of Austria against the Commission of the European Communities
Date: 2002-09-28
Institutions: Court of Justice
Subjects: Austria, action for annulment (EU), tradeable emission permit, transit

28.9.2002

EN

Official Journal of the European Communities

C 233/19

Action brought on 20 August 2002 by the Republic
of Austria against the Commission of the European
Communities

(Case C-296/02)

(2002/C 233/30)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 20 August 2002 by the Republic of Austria,
represented by Dr Harald Dossi of the Constitutional Service
of the Federal Chancellor’s Office of the Republic of Austria,
with an address for service in Luxembourg care 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 24 July
2002 definitively refusing the request for action submit-
ted to the Commission by the Republic of Austria under
the second paragraph of Article 232 EC;

The ecopoint system under Protocol No 9 to the 1994 Act of
Accession is based on the principle of declarations. Accord-
if journeys are clearly declared by a driver as transit
ingly,
journeys, they are included within the ecopoint statistics and
are relevant to the question whether the 108 % threshold has
been exceeded, whereupon the Commission is bound under
Article 11(2)(c) of Protocol No 9, in conjunction with para-
graph 3 of Annex 5 thereto, to adopt appropriate measures,
namely to reduce the number of ecopoints for the following
year in accordance with 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. It clearly follows, therefore,
that the 108 % threshold was exceeded in 2001. In the light of
its decision of 24 July 2002, the Commission consequently
failed to fulfil its obligations under Protocol 9 to the 1994 Act
of Accession, in particular its obligations under Article 11(2)(c)
in conjunction with Article 16 and paragraph 3 of Annex 5 to
that Protocol, thereby creating grounds for annulment on
account of infringement of the EC Treaty and/or of Protocol
No 9 to the 1994 Act of Accession pursuant to the second
paragraph of Article 230 EC.

— order the Commission to pay the costs.

(In the alternative)

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

Infringement of the EC Treaty and/or of Protocol No 9 to the
In relation to the grounds, the
1994 Act of Accession.
applicant refers to its arguments regarding the first plea in law.

— annul

the Commission’s decision of 24 July 2002
ordering the non-application of Article 11(2)(c) of Proto-
col No 9 to the 1994 Act of Accession (1) and the full
award of ecopoints for the year 2002;

— order the Commission to pay the costs.

Pleas in law and main arguments

(Main application)

Infringement of the EC Treaty and/or of Protocol No 9 to the
1994 Act of Accession by definitively refusing the request
made under the second paragraph of Article 232 EC. The
Commission wrongly seeks to deduct from the number of
transit journeys declared overall for the year 2001 (1 640 416)
journeys declared as transit journeys in respect of which there
is no information on departure (91 250), journeys declared as
transit journeys where both entry and departure were effected
at the same border point (49 504) and those where both entry
and departure were effected in the same Member State (11 374)
and journeys involving ‘piggyback transportation’ (10 764).

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

Removal from the register of Case C-357/99 (1)

(2002/C 233/31)

By order of 2 July 2002 the President of the Court of Justice of
the European Communities ordered the removal from the
register of Case C-357/99: Italian Republic v Council of the
European Union.

(1) OJ C 352 of 4.12.1999.