Case C-161/04: Actionbrought on 30 March 2004 by the Republic of Austriaagainst the European Parliament and the Council of the European Union (fax of 24 March 2004)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: Austria, Council of Europe, European Parliament, action for annulment (EU), commercial vehicle, road transport, sustainable mobility, tradeable emission permit, transit

30.4.2004

EN

Official Journal of the European Union

C 106/49

Appeal brought on 29 March 2004 by Gustaaf van Dyck
against the judgment delivered on 16 January 2004 by the
Fourth Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-113/02 between Gustaaf van
Dyck and the Commission of the European Communities.

— Contrary to what the Court of First Instance holds in its
judgment,
the letter of 5 July 2001 – in which the
chairman of the promotions committee informed the appli-
cant that no action could be taken on his request – is a
measure adversely affecting the applicant.

(Case C-160/04 P)

(2004/C 106/85)

An appeal against the order delivered on 16 January 2004 by
the Fourth Chamber of the Court of First Instance in Case T-
113/02 between Gustaaf van Dyck and the Commission of the
European Communities was brought before the Court of Justice
of the European Communities on 29 March 2004 by Gustaaf
van Dyck, represented by Wim Mertens, lawyer.

The appellant claims that the Court should:

1) Declare the appeal admissible and well-founded,

2) Therefore set aside the order of the Court of First Instance

of the European Communities of 16 January 2004,

3) And therefore order as the Court of First Instance should

have ordered, namely:

— declare the application lodged at the Registry of the
Court of First Instance on 11 April 2002 admissible,

and therefore annul:

— the decision of the Commission taken on 10 January
2002, notified on 15 January 2002, dismissing the
applicant's complaint of 14 August 2001,

— the Commission's decision of 5 July 2001 to take no
action in respect of the request by the applicant on 1
June 2001 concerning promotions to Grade B2, and

— the Commission decision revising the applicant's staff

report

as being contrary to the Staff Regulations and the principle
of equality

And order the Commission to pay the costs.

— Contrary to what

Instance held,

the
the Court of First
complaint of 14 August 2001 was brought by the applicant
not only after the chairman of the promotions committee
had informed him by letter of 5 July 2001 that no action
could be taken on his request, but after the Appointing
Authority had excluded the applicant
from promotion
through announcement of 10 August 2001 and after the
Appointing Authority had published the list of promotions
on 14 August 2001. The Appointing Authority had
decided against the applicant twice before the latter lodged
his complaint on 14 August 2001. The Court of First
Instance ought therefore to have ordered that there was
indeed a decision of the Appointing Authority, and in fact
two decisions, against which the applicant had lodged a
complaint.

— The Court of First Instance ought therefore to have held
that the Commission infringed Articles 25 and 90(1) of the
Staff Regulations, in that (1) the Appointing Authority gave
no reasoned decision to the applicant in response to his
request of 1 June 2001, and (2) the response of the promo-
tions committee is a measure adversely affecting the appli-
cant.

Action brought on 30 March 2004 by the Republic of
Austria against the European Parliament and the Council
of the European Union (fax of 24 March 2004)

(Case C-161/04)

(2004/C 106/86)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice of
the European Communities on 30 March 2004 (fax of
24 March 2004) by the Republic of Austria, represented by
Harald Dossi, acting as Agent, with an address for service in
Luxembourg.

Pleas in law and main arguments

The applicant claims that the Court should:

— Contrary to what the Court of First Instance held in its
judgment, the list of the most deserving officials is a deci-
sion adversely affecting the applicant,
in that it excludes
any promotion; it is for that reason that the appeal seeks
annulment of the decision pursuant to which the list of
promoted officials was drawn up, and not the annulment of
other measures preparatory to that decision.

— annul Regulation (EC) No 2327/2003 of

the European
Parliament and of the Council of 22 December 2003 estab-
lishing a transitional points system applicable to heavy
goods vehicles travelling through Austria for 2004 within
the framework of a sustainable transport policy; (1)

— order the defendant to pay the costs.

C 106/50

EN

Official Journal of the European Union

30.4.2004

Pleas in law and main arguments:

In the opinion of the Republic of Austria, Regulation (EC)
No 2327/2003 of the European Parliament and of the Council
of 22 December 2003 should be declared void on the following
grounds:

— Infringement of the primary-law principle of proportion-

ality

In light of the scientifically supported prognosis, the contested
regulation falls to be classified as being (entirely) inappropriate
for attaining the objective, set out in its preamble, of reducing
pollution by heavy goods traffic as a sustainable and environ-
mentally acceptable solution.

Further, the burdens imposed by the regulation are out of all
reasonable proportion to the means provided for achieving that
objective.

On the basis of a cost estimate established by the operator of
the electronic ecopoint system applying up to now, it is to be
assumed that the restructuring and/or reinforcement of the
ecopoint system in force up to 31 December 2003 that will be
required for the purpose of implementing the contested regu-
lation, in conjunction with the current operating and mainte-
nance works, will involve costs totalling some EUR 9 million.

As implementation of the contested regulation would give rise
to costs in the region of EUR 9 million and ultimately only an
increase in emissions could thereby be ‘achieved’, the contested
regulation infringes in any event the primary-law principle of
proportionality and for that reason alone must therefore be
declared void.

— Breach of obligations under the environment ‘cross-section

clause’ in Article 6 EC

The contested regulation fails to do justice to the guarantee of
maximal and optimal environmental protection laid down in
Article 6 EC, because it will bring about, not a reduction, but
rather an increase in emissions. To that extent the contested
regulation (also) breaches Article 6 EC.

— Breach of primary-law obligations under Article 11 of
Protocol No 9 on Road, Rail and combined Transport in
Austria

The contested regulation is also unlawful inasmuch as it is at
variance with the primary-law obligations under the Transit
Protocol. Although the ecopoint system expired at the end of
2003,
the objective of a sustainable and environmentally
appropriate resolution of the environmental problems caused
in the Transit Protocol, none the less
implicit
by traffic,
remains unachieved.

The transitional provisions in Article 11 of the Transit Protocol
cannot be construed as meaning that the rules on protection of
the environment and the health of the population,
initially
guaranteed in the EEC-Austria Transit Agreement and subse-
quently incorporated in the Transit Protocol, were simply to
(without being replaced) after a specified transitional
‘expire’
period and be mandatorily ‘tipped over’ into a Community-law
system providing a (significantly) lower standard of protection.

Such transitional provisions would in large measure lose their
useful effect and ought therefore to have been expressly and
unequivocally designated as being transitional, had the Member
States, as ‘Lords of the Treaties’, actually so intended.

If the objective of the transit regime - videlicet, protection of the
environment and health of the population in general and a
60 % reduction in NOx emissions in particular - is also to
apply after expiry of the transitional period on 31 December
2003,
the Transit
Protocol and thus part of primary Community law, is binding
on the European Community.

that objective, as a constituent part of

The Community is in this case obligated to continue to comply
with the objective of the transit regime. Provisions of secondary
law which do not permit attainment of that objective must be
classified as unlawful. The contested regulation fails in any
event to achieve the binding objective deriving from the Transit
Protocol and is for that reason at variance with primary law.

As is clear from the traffic and emissions report of 1 March
2004 entitled ‘LKW-Transitverkehr durch Österreich: Bilanz
und Ausblick’ (‘HGV transit traffic through Austria: a balance
and outlook’), it falls to be assumed that at any rate when the
contested regulation comes into force there will be an increase
in emissions, quite apart from the fact that the objective under
Protocol No 9 to the 1994 Act of Accession (OJ 1994 C 241
of 29 August 1994, p. 361), that is to say, a reduction of
nitrous oxide emissions of 40 % vis-à-vis the base value, could
not be achieved at any given point during the period for which
the agreement ran or on a permanent basis. Those emissions
could, for the year 2006, amount to as much as 133 % or,
viewed realistically, even 260 % (measured against the above-
mentioned base value).

— Infringement of the primary-law principle of certainty

The contested regulation is contrary to the Community-law
principle of certainty and is for that reason at variance with
primary law.

(1) OJ 2003 L 345, p. 30.