CELEX: C2006/165/30
Language: en
Date: 2006-07-15 00:00:00
Title: Case C-205/06: Action brought on  5 May 2006  — Commission of the European Communities v Republic of Austria

15.7.2006   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 165/17
            
         Action brought on 5 May 2006 — Commission of the European Communities v Republic of Austria
   (Case C-205/06)
   (2006/C 165/30)
   Language of the case: German
   Parties
   
      Applicant: Commission of the European Communities (represented by: H. Støvlbæk and B. Martenczuk, acting as Agents)
   
      Defendant: Republic of Austria
   Form of order sought
   
               —
            
            
               declare that, by not taking suitable measures to eliminate incompatibilities in relation to the provisions concerning transfers in the bilateral investment agreements with Korea, Cape Verde, China, Malaysia, the Russian Federation and Turkey, the Republic of Austria has failed to fulfil its obligations under second paragraph of Article 307 of the EC Treaty;
            
         
               —
            
            
               order the Republic of Austria to pay the costs.
            
         Pleas in law and main arguments
   Article 307 of the EC Treaty requires the Member States to take all appropriate steps to eliminate the incompatibilities established with the EC Treaty of the agreements concluded by them prior to 1 January 1958 or before accession to the European Community.
   The Commission considers that the provisions on the free transfer of investment related payments in the bilateral investment agreements which the Republic of Austria concluded with Korea, Cape Verde, China, Malaysia, the Russian Federation and Turkey before its accession to the European Community are incompatible with the EC Treaty. This is because they do not allow the Republic of Austria to apply restrictions on capital or payments which the Council of the European Union may adopt on the basis of Articles 57(2), 59 and 60(1) of the EC Treaty.
   The Austrian Government's argument that the way in which it votes in the Council is not predetermined by the agreements is irrelevant. The only relevant issue is whether the Republic of Austria can carry out — in conformity with its obligations under international law — the restrictive measures in a particular case. The provisions of the Austrian investment agreements in dispute show that this is not the case. Likewise, the argument that Austria alone cannot prevent the Council from adopting a decision by a qualified majority is not decisive for the same reason.
   Since, in the present case, an incompatibility with the EC Treaty exists, Austria is under an obligation to take appropriate steps to eliminate it. If no other means are available, however, Austria could — according to the case-law of the Court of Justice — be obliged to abrogate the agreement at issue.