CELEX: 62001CJ0356
Language: en
Date: 2003-11-20
Title: Judgment of the Court (Sixth Chamber) of 20 November 2003. # Republic of Austria v Commission of the European Communities. # System of ecopoints for heavy goods vehicles transiting through Austria - Refusal by the Commission to reduce the number of ecopoints for 2001 - Legality. # Case C-356/01.

Case C-356/01 Republic of AustriavCommission of the European Communities
            «(System of ecopoints for heavy goods vehicles transiting through Austria – Refusal by the Commission to reduce the number of ecopoints for 2001 – Legality)»
            
               
                  Judgment of the Court (Sixth Chamber), 20 November 2003  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Transport – Road transport – Special rules for the traffic of goods by road through Austria – Ecopoints system for heavy goods vehicles – Transit journeys – Burden of proof borne by the Austrian authorities – Driver setting the ecotag upon entry into Austrian territory – Relevance – Limits(Protocol No 9 to the 1994 Act of Accession, Article 11(2)(c); Commission Regulation No 3298/94, Art. 2(2) and (5)) In order for heavy goods vehicles transiting through Austria to fall within the ecopoints system established by Protocol No
         9 to the 1994 Act of Accession on road, rail and combined transport in Austria, a single journey must cross Austria and have
         its departure point and destination outside Austrian territory, which means that proof must be adduced not only of the entry
         of the heavy goods vehicle into Austrian territory, but also of its departure therefrom. It is apparent from the first subparagraph
         of Article 2(2) and Article 2(5) of Regulation No 3298/94 laying down detailed measures concerning the system of Rights of
         Transit (Ecopoints) for heavy goods vehicles transiting through Austria that it is for the Austrian authorities to put in
         place a system which allows for monitoring not only the entry into but also the departure from Austrian territory of heavy
         goods vehicles. Moreover, if drivers provide inexact information owing to the ecotag being incorrectly set on their vehicles,
         it is for the Austrian authorities to correct those errors, as under the Community rules it is their responsibility to manage
         the system.see paras 44-47, 50
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)20 November 2003 (1)
         
         
            
         
               ((System of ecopoints for heavy goods vehicles transiting through Austria – Refusal by the Commission to reduce the number of ecopoints for 2001 – Legality))
               
            In Case C-356/01, 
            
            
             Republic of Austria,  represented by H. Dossi, acting as Agent, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
             Commission of the European Communities,  represented by C. Schmidt and M. Wolfcarius, acting as Agents, with an address for service in Luxembourg,
            
            defendant,  supported by Federal Republic of Germany,  represented by W.-D. Plessing, acting as Agent, assisted by J. Sedemund, Rechtsanwalt,
            
            intervener, 
            
             APPLICATION for annulment of the Commission's decision of 25 July 2001 refusing to submit a draft regulation reducing the
            number of ecopoints for 2001 and, in the alternative, of the Commission's decision of the same date to distribute all the
            remaining ecopoints for 2001,
            
            
            THE COURT (Sixth Chamber),,
            
             composed of: V. Skouris, acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues (Rapporteur), J.-P. Puissochet, R. Schintgen and F. Macken, Judges, 
            
             Advocate General: J. Mischo, Registrar: M.-F. Contet, Principal Administrator, 
            
            
            having regard to the Report for the Hearing, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,after hearing oral argument from the parties at the hearing on 10 July 2003, when the Republic of Austria was represented
            by H. Dossi, the Commission by C. Schmidt and the Federal Republic of Germany by W.-D. Plessing, assisted by T. Lübbig, Rechtsanwalt,
            
            
         gives the following
         
         
         Judgment
         1
            
          By application lodged at the Registry of the Court on 20 September 2001, the Republic of Austria brought an action for annulment
         of the Commission's decision of 25 July 2001 refusing to submit a draft regulation reducing the number of ecopoints for 2001
         and, in the alternative, of the Commission's decision of the same date to distribute all the remaining ecopoints for 2001
         (hereinafter  
         the contested decisions). 
         
            
               Legal framework
            
         
         2
            
          Protocol No 9 on road, rail and combined transport in Austria, to the Act concerning the conditions of accession of the Republic
         of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union
         is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1, hereinafter  
         the Protocol) establishes special rules for the traffic of goods by road through Austria. 
         
         
         3
            
          Article 1(c) of the Protocol defines  
         transit traffic through Austria as  
         traffic through Austrian territory from a departure point to a destination, both of which lie outside Austria. 
         
         
         4
            
          Article 1(e) of the Protocol defines  
         transit of goods by road through Austria as  
         transit through Austria by heavy goods vehicles, regardless of whether they are laden or not. 
         
         
         5
            
          Article 1(g) of the Protocol defines  
         bilateral journeys as  
         international carriage on journeys undertaken by a vehicle where the point of departure or arrival is in Austria and the point
         of arrival or departure, respectively, is in another Member State and unladen journeys undertaken in conjunction with such
         journeys. 
         
         
         6
            
          Article 11(2) of the Protocol provides: 
         
         (a)
          The total of NOx emissions from heavy goods vehicles crossing Austria in transit shall be reduced by 60% in the period between
         1 January 1992 and 31 December 2003, according to the table in Annex 4. 
         
         
         (b)
          The reductions in total NOx emissions from heavy goods vehicles shall be administered according to an ecopoints system. Under
         that system any heavy goods vehicle crossing Austria in transit shall require a number of ecopoints equivalent to its NOx
         emissions (authorised under the Conformity of Production (COP) value or type-approval value). The method of calculation and
         administration of such points is described in Annex 5. 
         
         
         (c)
          If the number of transit journeys in any year exceeds the reference figure established for 1991 by more than 8%, the Commission,
         acting in accordance with the procedure laid down in Article 16, shall adopt appropriate measures in accordance with paragraph
         3 of Annex 5. 
         ....
         
         
         7
            
          As the number of transit journeys made through Austria in 1991 was 1 490 900, the threshold to which Article 11(2)(c) of the
         Protocol refers is equivalent to 1 610 172 transit journeys. 
         
         
         8
            
          The first subparagraph of Article 11(6) of the Protocol provides: The Commission, acting in accordance with the procedure laid down in Article 16, shall adopt detailed measures concerning
         the procedures relating to the ecopoints system, the distribution of ecopoints and technical questions concerning the application
         of this Article, which shall enter into force on the date of accession of Austria.
         
         
         9
            
          According to Article 16 of the Protocol, the Commission is to be assisted by a Committee composed of the representatives of
         the Member States (hereinafter  
         the Ecopoint Committee) and that article lays down further provisions on how that committee is to carry out its duties.  
         
         
         10
            
          In accordance with Article 11(6) of the Protocol, the Commission adopted Regulation (EC) No 3298/94 of 21 December 1994 laying
         down detailed measures concerning the system of Rights of Transit (Ecopoints) for heavy goods vehicles transiting through
         Austria, established by Article 11 of Protocol No 9 to the Act of Accession of Austria, Finland and Sweden (OJ 1994 L 341,
         p. 20). That regulation was amended by Commission Regulation (EC) No 1524/96 of 30 July 1996 (OJ 1996 L 190, p. 13), Commission
         Regulation (EC) No 609/2000 of 21 March 2000 (OJ 2000 L 73, p. 9), and Council Regulation (EC) No 2012/2000 of 21 September
         2000 (OJ 2000 L 241, p. 18), which was partly annulled by the Court in Case C-445/00  
          Austria  v  
          Council  [2003] ECR I-8549. In the following,  
         Regulation No 3298/94 refers to the regulation as amended. 
         
         
         11
            
          Monitoring of the implementation of the ecopoints system was initially based on the use of forms (ecocards). 
         
         
         12
            
          Through Regulation No 1524/96, the Commission introduced an electronic monitoring system based on the use of an electronic
         device, referred to as an  
         ecotag, fitted to the motor vehicle which enables the automatic debiting of ecopoints.  
         
         
         13
            
          At the time the contested decisions were adopted, roughly 95% of ecopoints were used in electronic form. 
         
         
         14
            
          Article 1(1)(b) of Regulation No 3298/94 provides: The driver of a heavy goods vehicle on the territory of Austria shall carry, and shall make available for inspection at the
         request of the supervisory authorities, ... :...
         
         (b)
          an electronic device, fitted to the motor vehicle which enables the automatic debiting of ecopoints, hereinafter referred
         to as  
         the ecotag.
         
         
         
         15
            
          The first subparagraph of Article 1(2) of Regulation No 3298/94 provides: Ecotags shall be manufactured, programmed and installed in accordance with the general technical specifications laid down
         in Annex F. The competent authorities in each Member State are authorised to approve, program and install the ecotags.
         
         
         16
            
          Annex F to Regulation No 3298/94 provides inter alia: Transit declarationThe ecotag must have an input facility for declaring a journey exempt from the payment of ecopoints.This facility must be clearly visible on the ecotag for control purposes; alternatively, it must be possible to set the ecotag
         at a defined initial position. At all events, it must be ensured that only the status at the time of entry is taken into account
         for evaluation in the system.
         
         
         17
            
          Article 2(2) and the second subparagraph of Article 2(5) of Regulation No 3298/94 provide: 2. If the vehicle fitted with an ecotag, upon confirmation of it undertaking a transit journey requiring ecopoints, a number
         of ecopoints, equivalent to the NOx emission information stored in the ecotag of the vehicle, shall be deducted from the total
         of ecopoints allocated to the Member State in which the vehicle is registered. This shall be done by infrastructure provided
         and operated by the Austrian authorities.For vehicles fitted with ecotags that are making bilateral journeys they must set the ecotag to demonstrate that a non-transit
         journey is being made prior to entering Austrian territory....5. ...... if the vehicle is fitted with an ecotag, the Austrian authorities shall make available the necessary information to a
         designated authority in the Member State where the vehicle is registered within 48 hours that a transit journey has been made.
         Such information shall also be made available to the Commission.
         
         
         18
            
          Article 3(2) and (3) of Regulation No 3298/94 provide: 2. Continuous journeys which involve crossing the Austrian frontier once by train, whether by conventional rail transport
         or in a combined transport operation, and crossing the frontier by road before or after crossing by rail, shall be regarded
         not as transit of goods by road through Austria within the meaning of Article 1(e) of Protocol No 9, but as bilateral journeys
         within the meaning of Article 1(g) thereof.3. Notwithstanding paragraph 2, continuous transit journeys through Austria using the following rail terminals shall be deemed
         to constitute journeys:Fuernitz/Villach Sued, Sillian, Innsbruck/Hall, Brennersee, Graz.
         
         
         19
            
          Lastly, Article 14 of Regulation No 3298/94 provides: A journey shall be deemed to be exempt from the payment of ecopoints if the vehicle either sets down or picks up its complete
         load in Austria and the vehicle carries suitable documentation to demonstrate this, irrespective of the route taken by the
         vehicle to enter and exit Austria.
         Facts
         
         20
            
          By letter of 19 March 2001, the Republic of Austria informed the Commission of the preliminary statistics for the total number
         of transits declared as transit journeys for the year 2000, stating that the number was more than 8% higher than the reference
         value for 1991, namely 1 490 900 journeys. 
         
         
         21
            
          By letter of 3 April 2001, the Republic of Austria sent the Commission its final statistics for the year 2000, which confirmed
         that the figure had been exceeded. They indicated for that year a total of 1 696 794  
         declared transit journeys, an increase of 13.81% over the reference value for 1991. 
         
         
         22
            
          The Commission drew up a draft regulation aimed at reducing the number of ecopoints for 2001. However, when the Ecopoints
         Committee meetings were held on 19, 24 and 25 April 2001, and also on subsequent dates, other Member States expressed reservations
         concerning the number of journeys indicated by the Republic of Austria, maintaining that the journeys had not actually been
         made. 
         
         
         23
            
          Three categories of journeys in particular were questioned: 9 210 journeys to access a combined transport operation (
         rollende Landstrasse), 92 816 journeys for which there was no data on departure and 54 386 journeys where both entry and departure were effected
         at the same border point. Once those journeys were deducted, the statistics presented by the Austrian authorities amounted
         to only 1 540 382 actual transit journeys, a figure lower than the threshold fixed by Article 11(2)(c) of the Protocol, that
         is, 1 610 172 journeys. Consequently, the Commission withdrew its draft regulation. 
         
         
         24
            
          By letter of 17 July 2001, the Republic of Austria, acting pursuant to the second paragraph of Article 232 EC, called upon
         the Commission to act by submitting to the Ecopoints Committee a draft regulation reducing the number of ecopoints for 2001.
         
         
         
         25
            
          On 25 July 2001, the Commission decided that it would not propose a reduction in the number of ecopoints for 2001 and that
         it would distribute all of the remaining ecopoints for 2001. The Commissioner responsible for transport, Ms Loyola de Palacio,
         informed the Austrian Government of the contested decisions by letter of 26 July 2001. 
         
         
         26
            
          Those are the circumstances in which the Republic of Austria brought the present action.  
         Forms of order sought
         
         27
            
          The applicant claims that the Court should: 
         
         
         ─
             annul the Commission's decision of 25 July 2001 refusing to submit a draft regulation reducing the number of ecopoints for
            2001;  
         
         
         
         ─
             in the alternative, annul the Commission's decision of the same date to distribute all the remaining ecopoints for 2001; 
         
         
         
         ─
             order the Commission to pay the costs. 
         
         
         
         
         28
            
          The Commission, supported by the Federal Republic of Germany, which was given leave to intervene by order of the President
         of the Court of 5 March 2002, contends that the Court should: 
         
         
         ─
             dismiss the action; 
         
         
         
         ─
             order the applicant to pay the costs. 
         
         
         Substance Arguments of the parties
         
         
         29
            
          The Austrian Government acknowledges that 9 210 journeys to access a combined transport operation should not have been included
         in the total of 1 696 794 declared transit journeys recorded for the year 2000. It submits, however, that, once those journeys
         are deducted, the total is 1 687 584, or 113% of the reference value for 1991, a figure which is still higher than the threshold
         fixed in Article 11(2)(c) of the Protocol.  
         
         
         30
            
          The Austrian Government disagrees that the journeys declared as transit journeys for which there was no data on departure
         and journeys declared as transit journeys where both entry and departure were effected at the same border point should be
         deducted from the total number of journeys recorded for the year 2000. 
         
         
         31
            
          The Austrian Government maintains that the Protocol does not contain a legal definition of transit  
         journey as referred to in Article 11(2)(c) therein. It is therefore clear, according to the Austrian Government, that the number
         of relevant journeys must be calculated on the basis of the journeys declared as transit journeys by the drivers of heavy
         goods vehicles when they enter Austria. This  
         declaration principle is provided for by Community law in the second subparagraph of Article 2(2) of Regulation No 3298/94, which states that:
          
         for vehicles fitted with ecotags that are making bilateral journeys they must set the ecotag to demonstrate that a non-transit
         journey is being made prior to entering Austrian territory.
         
         
         32
            
          The wording means that the driver of a heavy goods vehicle is required, prior to entering Austrian territory, to declare,
         by clicking on the ecotag, whether he is making a journey which is ecopoint-exempt or a transit journey which is subject to
         the ecopoints system. 
         
         
         33
            
          The second subparagraph of Article 2(2) of Regulation No 3298/94 permits the assumption that all persons concerned act in
         accordance with the provisions of that regulation. Accordingly, when a journey is declared as a transit journey, the Republic
         of Austria is entitled to consider that that declaration meets the requirements of Regulation No 3298/94. Conduct contrary
         to Community law by other participants in the ecopoints system cannot properly be attributed to that Member State. 
         
         
         34
            
          The Austrian Government contests an interpretation that would require it, in disputed cases, to prove that a transit journey
         was indeed effected and not an ecopoint-exempt journey which had been falsely declared as a transit journey. Such an interpretation
         would be contrary to the declaration principle. 
         
         
         35
            
          As regards the journeys declared as transit journeys for which there is no data on departure, the driver's declaration made
         upon entering Austrian territory is the only relevant criterion for establishing whether or not a transit journey took place.
         Given the declaration principle, the Republic of Austria was required to include in the ecopoints statistics, as transit journeys,
         the 92 816 journeys declared as transit journeys for which there was no data on departure. 
         
         
         36
            
          The Republic of Austria is not required to prove that each of the journeys where both entry and departure were effected at
         the same border point, which were declared as transit journeys, was actually so. Accordingly, having regard to the declaration
         principle, the Republic of Austria was required to include in the ecopoints statistics, as transit journeys, the 54 386 journeys
         declared as transit journeys where both entry and departure were effected at the same border point. 
         
         
         37
            
          The Commission submits that only transit journeys actually made can be counted and be used to determine whether the threshold
         provided for in Article 11(2)(c) of the Protocol has been exceeded. Article 1(c) of the Protocol defines  
         transit traffic through Austria as  
         traffic through Austrian territory from a departure point to a destination, both of which lie outside Austria. Since that traffic comprises several individual journeys, the same definition applies to transit journeys. According to
         that definition, it is clear that classification of a journey as a  
         transit journey depends on both the departure point and the destination of the heavy goods vehicle in question. 
         
         
         38
            
          However, the Republic of Austria has not produced any statistics or evidence on the entry and departure of the heavy goods
         vehicles subject to the ecopoints system. Accordingly, the Commission cannot assume that the threshold provided for in Article
         11(2)(c) of the Protocol has been exceeded and it is thus not required to proceed with a reduction of the ecopoints for 2001.
         
         
         
         39
            
          The German Government concurs in the Commission's arguments, adding a detailed description of the shortcomings of the ecopoints
         electronic monitoring system put in place by the Austrian authorities. 
          Findings of the Court
         
         
         40
            
          The Court finds, first of all, that the exclusion of the 9 210 journeys to access combined transport operations from the total
         of transit journeys recorded by the Austrian authorities for the year 2000 is no longer in dispute, since the Republic of
         Austria has admitted that they should not have been counted as transit journeys. 
         
         
         41
            
          It follows that the present dispute concerns only the question whether the 92 816 journeys for which there is no data on departure,
         and the 54 386 journeys where both entry and departure were effected at the same border point, must be counted among the transit
         journeys in order to determine, for the purposes of Article 11(2)(c) of the Protocol, whether the reference value for 1991
         was exceeded by more than 8% during the year 2000. 
         
         
         42
            
          Article 1(c) of the Protocol defines  
         transit traffic through Austria as  
         traffic through Austrian territory from a departure point to a destination, both of which lie outside Austria. It is clear from this provision that classification of a journey as a  
         transit journey depends on both the departure point and the destination of the heavy goods vehicles in question, both those points having
         to be outside Austrian territory. 
         
         
         43
            
          Since  
         transit traffic thus defined comprises individual journeys, the same considerations necessarily apply to the individual transit journeys
         referred to in Article 11(2)(c) of the Protocol. 
         
         
         44
            
          In order to fall within the ecopoints system established by the Protocol, the journeys in question must therefore cross Austria
         and have their departure point and destination outside Austrian territory, which means that proof must be adduced not only
         of the entry of the heavy goods vehicle on Austrian territory, but also of its departure.  
         
         
         45
            
          It is apparent from the first subparagraph of Article 2(2) of Regulation No 3298/94 that, while a certain number of ecopoints
         is deducted in the case of a vehicle fitted with an ecotag, that deduction is made  
         upon confirmation of it undertaking a transit journey requiring ecopoints. It is clear that it is incumbent upon the Austrian authorities to obtain that confirmation, because the last sentence of
         that subparagraph provides that  
         this shall be done by infrastructure provided and operated by the Austrian authorities. 
         
         
         46
            
          This interpretation is supported by Article 2(5) of that same regulation, which states that the Austrian authorities are to
         make available the necessary information both to a designated authority in the Member State where the vehicle is registered
         and to the Commission. 
         
         
         47
            
          It is clear from this that it is for the Austrian authorities to put in place a system which allows for monitoring not only
         the entry into but also the departure from Austrian territory of heavy goods vehicles making transit journeys in Austria.
         
         
         
         48
            
          This interpretation is not undermined by the second subparagraph of Article 2(2) of Regulation No 3298/94, relied on by the
         Austrian Government. 
         
         
         49
            
          That provisions merely sets out, from a technical viewpoint, the manner in which the driver of a heavy goods vehicle is supposed
         to set the ecotag of the vehicle when it enters Austrian territory. The driver is thus required to ensure that the ecotag
         is in  
         transit mode if he undertakes a transit journey within the meaning of the Community rules and that it is in  
         bilateral journey mode in other cases. 
         
         
         50
            
          If the driver provides inexact information due to the ecotag being incorrectly set on his vehicle, it is for the Austrian
         authorities to correct those errors, as under the Community rules it is their responsibility to manage the system. 
         
         
         51
            
          It follows that the declaration principle alleged by the Austrian Government, according to which a journey can be counted
         as a transit journey for the purposes of Article 11(2)(c) of the Protocol solely on the basis of the setting of the ecotag
         when the heavy goods vehicle enters Austrian territory, has no foundation in the relevant Community provisions. 
         
         
         52
            
          In the present case, transit journeys where both entry and departure are effected at the same border point do not, at first
         sight, imply that the Austrian territory is being crossed, which is necessary for them to be considered as journeys falling
         within the scope of the ecopoints system for the purposes of Article 11(2)(c) of the Protocol. The Austrian Government has
         not adduced any evidence to invalidate this assessment. 
         
         
         53
            
          The journeys for which there is a declaration of entry, but no information on departure, would appear, at first sight, to
         be journeys having a destination in Austria, which are excluded from the ecopoints system for the purposes of Article 11(2)(c)
         of the Protocol. Once again, the Austrian Government has not adduced any evidence to the contrary. 
         
         
         54
            
          It follows from the foregoing that the Austrian Government has not provided any evidence establishing that the two categories
         of journey in question, that is, journeys for which there is no data on departure and journeys where both entry and departure
         are effected at the same border point, are in fact transit journeys for the purposes of Article 11(2)(c) of the Protocol.
         Accordingly, the action brought by the Republic of Austria is unfounded and must be dismissed.  
         
         Costs
         55
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings. Since the Commission has applied for the Republic of Austria to be ordered
         to pay the costs and the latter has been unsuccessful, it must be ordered to pay the costs. Under the first subparagraph of
         Article 69(4) of the Rules of Procedure, the Federal Republic of Germany is to bear its own costs.  
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber)
         
         
          hereby:  
         
            
            1.
             Dismisses the application; 
            
            
            2.
             Orders the Republic of Austria to pay the costs; 
            
            
            3.
             Orders the Federal Republic of Germany to bear its own costs. 
            
            
                  Skouris
               
               
                  Cunha Rodrigues 
               
               
                  Puissochet 
               
            
                  Schintgen
               
               
                  Macken 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 20 November 2003.
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: German.