CELEX: C2003/264/43
Language: en
Date: 2003-11-01 00:00:00
Title: Case C-393/03: Action brought on 18 September 2003 by the Republic of Austria against the Commission of the European Communities

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                Pleas in law and main arguments
      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 its obligations under Article 13(1) of that              (Main application)
      directive;
—     order the Italian Republic to pay the costs.                       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
Pleas in law and main arguments                                          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
The time-limit for transposing the directive expired on 1 Janu-
                                                                         transit journeys where both entry and departure were effected
ary 2002.
                                                                         at the same border point (52 642) and journeys involving
                                                                         ‘piggyback transportation’ (7 812).
(1) OJ L 203 of 3.8.1999, p. 53.
                                                                         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
Action brought on 18 September 2003 by the Republic                      Article 11(2)(c) of Protocol No 9, in conjunction with para-
of Austria against the Commission of the European                        graph 3 of Annex 5 thereto, to adopt appropriate measures,
                          Communities                                    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
                         (Case C-393/03)
                                                                         of declarations, be for the Republic of Austria, either legally or
                                                                         factually, to provide evidence in each individual case that,
                         (2003/C 264/43)                                 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
An action against the Commission of the European Communi-                cannot have been a transit journey. It clearly follows, therefore,
ties was brought before the Court of Justice of the European             that the 108 % threshold was exceeded in 2002. In the light of
Communities on 18 September 2003 (fax: 11.9.03) by the                   its decision of 1 July 2003, the Commission consequently
Republic of Austria, represented by Dr Harald Dossi of the               failed to fulfil its obligations under Protocol 9 to the 1994 Act
Constitutional Service of the Federal Chancellor’s Office of the         of Accession, in particular its obligations under Article 11(2)(c)
Republic of Austria, with an address for service in Luxembourg.          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
The applicant claims that the Court should:                              No 9 to the 1994 Act of Accession pursuant to the second
                                                                         paragraph of Article 230 EC.
—     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;                            (In the alternative)
—     order the Commission to pay the costs.
                                                                         Infringement of the EC Treaty and/or of Protocol No 9 to the
                                                                         1994 Act of Accession. In relation to the grounds, the
In the alternative, the Republic of Austria claims that the Court        applicant refers to its arguments regarding the first plea in law.
should:
—     annul the Commission’s decision of 1 July 2003 ordering            (1) Protocol No 9 on road, rail and combined transport in Austria.
      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;