CELEX: C2001/317/34
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-353/01 P: Appeal brought on 19 September 2001 by Olli Mattila against the judgment delivered on 12 July 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-204/99 between Olli Mattila and the Council of the European Union and the Commission of the European Communities

C 317/18                EN                 Official Journal of the European Communities                                      10.11.2001
Pleas in law and main arguments                                       Appeal brought on 19 September 2001 by Olli Mattila
                                                                      against the judgment delivered on 12 July 2001 by the
                                                                      Fifth Chamber of the Court of First Instance of the
The pleas in law and main arguments are identical to those            European Communities in case T-204/99 (1) between Olli
submitted in Case C-323/01 (2); the period prescribed for             Mattila and the Council of the European Union and the
transposition expired on 14 March 2000.                                        Commission of the European Communities
                                                                                               (Case C-353/01 P)
(1) OJ 1998 L 77, p. 36.
(2) See page 12 of this Official Journal.
                                                                                                (2001/C 317/34)
                                                                      An appeal against the judgment delivered on 12 July 2001 by
                                                                      the Fifth Chamber of the Court of First Instance of the
                                                                      European Communities in case T-204/99 between Olli Mattila
                                                                      and the Council of the European Union and the Commission
                                                                      of the European Communities, was brought before the Court
Action brought on 19 September 2001 by the Com-                       of Justice of the European Communities on 19 September
mission of the European Communities against the                       2001 by Olli Mattila, residing in Hyvinkää, Finland, represented
                        Kingdom of Spain                              by Z. Sundström and M.R. Kauppi, Lawyers, with an address
                                                                      for service in Luxembourg.
                         (Case C-352/01)
                                                                      The Appellant claims that the Court should:
                         (2001/C 317/33)
                                                                      —     annul the judgment of the Court of First Instance (Fifth
An action against the Kingdom of Spain was brought before                   Chamber) of 12 July 2001;
the Court of Justice of the European Communities on 19 Sep-
tember 2001 by the Commission of the European Communi-
ties represented by Gregorio Valero Jordana, acting as Agent,         —     annul the decision of the Council and the Commission
with an address for service in Luxembourg at the office of                  which is the subject of the present appeal;
L. Escobar Guerrero, Wagner Centre C 254.
                                                                      —     invite the Council and the Commission to reconsider
                                                                            their position and give access to the Appellant to the
The applicant claims that the Court should:                                 requested documents;
1.    Declare that by not having adopted the laws, regulations        —     give access, at least partial access, to such documents after
      and administrative provisions necessary to comply with                cancelling or editing the sections which may justifiably
      Directive 98/8/EC of the European Parliament and of the               qualify as liable to prejudice the international relations of
      Council of 16 February 1998 concerning the placing of                 the European Community;
      biocidal products on the market (1) or, in any event, not
      having communicated those provisions to the Com-
      mission, the Kingdom of Spain has failed to fulfil its          —     order jointly the Council and the Commission to pay the
      obligations under that directive.                                     costs incurred by the Appellant in these proceedings.
2.    Order the Kingdom of Spain to pay the costs.
                                                                      Pleas in law and main arguments
Pleas in law and main arguments
                                                                      The Appellant contends that the Court of First Instance
                                                                      has incorrectly applied European Community Law, namely
The pleas in law and main arguments are the same as those in          93/731/EC of 20 December 1993(2) on public access to
Case C-323/01 (2); the deadline for transposition expired on          Council documents and 94/90 ECSC, EC, Euratom of 8 Febru-
13 May 2000.                                                          ary 1994 (3) on public access to Commission documents.
(1) OJ L 123 of 24.4.1998, p. 63.                                     The pleas in support of the appeal are the following:
(2) See page 12 of this Official Journal.
                                                                      a.    Manifest error of assessment in interpreting the exception
                                                                            concerning the protection of international relations;
 ---pagebreak--- 10.11.2001             EN                    Official Journal of the European Communities                                        C 317/19
b.    Breach of the principle of proportionality in that partial              of Protocol No 9 to the Act of Accession 1994 (1) and full
      access to the documents in question has not been granted                award of ecopoints for the year 2001.
      or even considered;
                                                                        —     Order the Commission to pay the costs.
c.    Breach of the principle that an application for access to
      documents must be considered with regard to each
      individual document;
                                                                        Pleas in law and main arguments
d.   Failure in the duty to state reasons;
e.   Failure to apply objectivity and equality in considering
      the Appellant’s interest in having access to the documents;       (Main plea)
f.    Breach of the duty of independent review;                         Infringement of the EC Treaty or Protocol No 9 to the Act of
                                                                        Accession 1994 by definitively refusing the request under the
g.    Misuse of power; and                                              second paragraph of Article 232 EC. The Commission wrongly
                                                                        seeks to deduct journeys declared as transit journeys in respect
h.    Failure to comply with the duty to co-operate.                    of which there is no information on departure (92 816 ), and
                                                                        journeys declared as transit journeys where both entry and
                                                                        departure were effected at the same border point (54 386 ),
(1) OJ C 333, 20.11.1999, p. 32.                                        from the number of transit journeys declared overall for the
(2) OJ 1993 L 340, p. 43.                                               year 2000 (1 696 794 ). The ecopoint system under Protocol
(3) OJ 1994 L 46, p. 58.                                                No 9 to the Act of Accession 1994 is based on the principle
                                                                        of declarations. Accordingly, if journeys are clearly declared by
                                                                        a driver as transit journeys, they fall within the ecopoint
                                                                        statistics and are relevant to whether the 108 % threshold has
                                                                        been exceeded; this is the point at which the Commission is
                                                                        bound under Article 11(2)(c) of Protocol No 9, in conjunction
                                                                        with Annex 5(3) thereof, to adopt certain measures, namely to
                                                                        reduce the number of ecopoints the following year according
Action brought on 20 September 2001 by the Republic of                  to a calculation method laid down in the Annex to the
Austria by the Commission of the European Communities                   Protocol. It cannot, in the light of the principle of declarations,
                                                                        be for the Republic of Austria, either legally or factually, to
                         (Case C-356/01)                                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
                         (2001/C 317/35)                                deduct journeys declared to be transit journeys where it is
                                                                        beyond doubt that, despite a clear declaration, there cannot
                                                                        have been a transit journey (which is the case in respect of
An action against the Commission of the European Communi-
                                                                        9 210 nbsp;statistically proven journeys on trains for the
ties was brought before the Court of Justice of the European
                                                                        carriage of heavy goods vehicles). The result is therefore clearly
Communities on 20 September 2001 by the Republic of
                                                                        that the 108 % threshold was exceeded in the year 2000. In
Austria represented by Dr Harald Dossi, of the Administrative
                                                                        the light of its decision of 25 July 2001, the Commission
Service of the Federal Chancellor’s Office of the Republic of
                                                                        therefore failed to fulfil its obligations under Protocol 9 to the
Austria with an address for service in Luxembourg at the office
                                                                        Act of Accession 1994, in particular its obligations under
of the Ambassador Dr Christian Strohal, Austrian Embassy,
                                                                        Article 11(2)(c) in conjunction with Article 16 and Annex 5(3)
3 rue des Bains.
                                                                        to that Protocol, and that it has therefore created grounds for
                                                                        annulment for infringement of the EC Treaty and/or Protocol
The applicant claims that the Court should:                             No 9 of the Act of Accession 1994 pursuant to the second
                                                                        paragraph of Article 230 EC Treaty.
—     Annul the negative opinion of the Commission of 25 July
      2001 definitively refusing the Republic of Austria’s
      request under the second paragraph of Article 232 EC to           (In the alternative)
      the Commission to act.
—    Order the Commission to pay the costs.                             Infringement of the EC Treaty and/or Protocol No 9 to the Act
                                                                        of Accession 1994. The applicant refers to the first plea in law
                                                                        in relation to the grounds for its observations.
In the alternative the Republic of Austria claims that the Court
should
                                                                        (1) Protocol No 9 on road, rail and combined transport in Austria.
—     Declare null and void the Commission’s decision of
      25 July 2001 ordering non-application of Article 11(2)(c)