Case C-393/03: Action brought on 18 September 2003 by the Republic of Austria against the Commission of the European Communities
Date: 2003-11-01
Institutions: Court of Justice
Subjects: Austria, European Commission, action for annulment (EU), tradeable emission permit, transit

1.11.2003

EN

Official Journal of the European Union

C 264/25

The applicant claims that the Court should:

— order the Commission to pay the costs.

— find that, by failing to adopt

the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/74/EC of 19 July 1999 laying
down minimum standards for the protection of laying
hens (1) or, in any event, by failing to communicate the
same to the Commission, the Italian Republic has failed
to fulfil
that
directive;

its obligations under Article 13(1) of

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposing the directive expired on 1 Janu-
ary 2002.

(1) OJ L 203 of 3.8.1999, p. 53.

Action brought on 18 September 2003 by the Republic
of Austria against the Commission of the European
Communities

(Case C-393/03)

(2003/C 264/43)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 18 September 2003 (fax: 11.9.03) 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.

The applicant claims that the Court should:

— annul the negative opinion of the Commission of 1 July
2003 definitively refusing the request for action submit-
ted to the Commission by the Republic of Austria under
the second paragraph of Article 232 EC;

— order the Commission to pay the costs.

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

— annul the Commission’s decision of 1 July 2003 ordering
the non-application of Article 11(2)(c) of Protocol No 9
to the 1994 Act of Accession (1) and the full award of
ecopoints for the year 2003;

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 2002 (1 718 622)
journeys declared as transit journeys in respect of which there
is no information on departure (69 433), journeys declared as
transit journeys where both entry and departure were effected
at the same border point (52 642) and journeys involving
‘piggyback transportation’ (7 812).

The ecopoint system under Protocol No 9 to the 1994 Act of
Accession is based on the principle of declarations. Accord-
ingly, if journeys are clearly declared by a driver as transit
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 2002. In the light of
its decision of 1 July 2003, 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.

(In the alternative)

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

In relation to the grounds,

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