CELEX: C2002/233/30
Language: en
Date: 2002-09-28 00:00:00
Title: Case C-296/02: Action brought on 20 August 2002 by the Republic of Austria against the Commission of the European Communities

28.9.2002              EN                    Official Journal of the European Communities                                         C 233/19
Action brought on 20 August 2002 by the Republic                        The ecopoint system under Protocol No 9 to the 1994 Act of
of Austria against the Commission of the European                       Accession is based on the principle of declarations. Accord-
                           Communities                                  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
                         (Case C-296/02)                                been exceeded, whereupon the Commission is bound under
                                                                        Article 11(2)(c) of Protocol No 9, in conjunction with para-
                                                                        graph 3 of Annex 5 thereto, to adopt appropriate measures,
                         (2002/C 233/30)                                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
                                                                        of declarations, be for the Republic of Austria, either legally or
An action against the Commission of the European Communi-               factually, to provide evidence in each individual case that,
ties was brought before the Court of Justice of the European            where a journey is clearly declared to be a transit journey, such
Communities on 20 August 2002 by the Republic of Austria,               a transit journey actually took place. The Republic of Austria
represented by Dr Harald Dossi of the Constitutional Service            merely has to deduct journeys declared to be transit journeys
of the Federal Chancellor’s Office of the Republic of Austria,          where it is beyond doubt that, despite a clear declaration, there
with an address for service in Luxembourg care of the                   cannot have been a transit journey. It clearly follows, therefore,
Ambassador, Dr Christian Strohal, Austrian Embassy, 3 rue               that the 108 % threshold was exceeded in 2001. In the light of
des Bains.                                                              its decision of 24 July 2002, the Commission consequently
                                                                        failed to fulfil its obligations under Protocol 9 to the 1994 Act
                                                                        of Accession, in particular its obligations under Article 11(2)(c)
The applicant claims that the Court should:                             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
—     annul the negative opinion of the Commission of 24 July           No 9 to the 1994 Act of Accession pursuant to the second
      2002 definitively refusing the request for action submit-         paragraph of Article 230 EC.
      ted to the Commission by the Republic of Austria under
      the second paragraph of Article 232 EC;
—     order the Commission to pay the costs.                            (In the alternative)
In the alternative, the Republic of Austria claims that the Court       Infringement of the EC Treaty and/or of Protocol No 9 to the
                                                                        1994 Act of Accession. In relation to the grounds, the
should:
                                                                        applicant refers to its arguments regarding the first plea in law.
—     annul the Commission’s decision of 24 July 2002
      ordering the non-application of Article 11(2)(c) of Proto-        (1 ) Protocol No 9 on road, rail and combined transport in Austria.
      col No 9 to the 1994 Act of Accession ( 1) and the full
      award of ecopoints for the year 2002;
—     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                                Removal from the register of Case C-357/99 ( 1)
                                                                                                   (2002/C 233/31)
(Main application)
Infringement of the EC Treaty and/or of Protocol No 9 to the
1994 Act of Accession by definitively refusing the request              By order of 2 July 2002 the President of the Court of Justice of
made under the second paragraph of Article 232 EC. The                  the European Communities ordered the removal from the
Commission wrongly seeks to deduct from the number of                   register of Case C-357/99: Italian Republic v Council of the
transit journeys declared overall for the year 2001 (1 640 416)         European Union.
journeys declared as transit journeys in respect of which there
is no information on departure (91 250), journeys declared as
transit journeys where both entry and departure were effected           (1 ) OJ C 352 of 4.12.1999.
at the same border point (49 504) and those where both entry
and departure were effected in the same Member State (11 374)
and journeys involving ‘piggyback transportation’ (10 764).