CELEX: C2001/045/19
Language: en
Date: 2001-02-10 00:00:00
Title: Case C-445/00: Action brought on 4 December 2000 by the Republic of Austria against the Council of the European Union

10.2.2001                EN                    Official Journal of the European Communities                                           C 45/9
2.     Have those materials been ‘recycled’ for the purposes of           Pleas in law and main arguments
       European Parliament and Council Directive 94/62/EC (4)
       on packaging and packaging waste when they have been:
                                                                          —     Infringement of essential procedural requirements in
       a.    rendered suitable for use as a feedstock, or                       the creation of the contested regulation: The plaintiff
                                                                                complains in particular that there has been no collegiate
                                                                                decision of the Commission in relation to the amendment
       b.    used by a steelmaker so as to produce ingots, sheets               of the Commission proposal, which took the form of
             or coils of steel?                                                 adopting the content of a compromise suggestion of the
                                                                                Council. A collegiate decision of the content claimed by
                                                                                the Commission representative at the meeting of the
                                                                                Committee of Permanent Representatives, namely to
( 1) of 15 July 1975 (OJ L 194, 25.07.1975, p. 39).                             empower the relevant Commissioner to amend the
( 2) of 18 March 1991 (OJ L 78, 26.03.1991, p. 32).                             original Commission proposal accordingly, should a
( 3) of 24 May 1996 (OJ L 135, 06.06.1996, p. 32).                              formulation commanding a qualified majority be found
( 4) of 20 December 1994 (OJ L 365, 31.12.1994, p. 10).                         in the Council, is, the plaintiff maintains, not sufficient.
                                                                                That would not ensure that the College of the Com-
                                                                                mission was informed about the essential elements of the
                                                                                amended proposal, let alone ensure that it deliberated
                                                                                over them as a body. If, therefore, a lawful (amended)
                                                                                proposal of the Commission had not at any time been
                                                                                submitted as the basis for the Council decision finally
                                                                                taken, the Council had no authority to decide upon the
                                                                                matter by qualified majority.
Action brought on 4 December 2000 by the Republic of
     Austria against the Council of the European Union
                                                                          —     (In the alternative) Infringement of the Treaty by
                                                                                amending the Commission proposal after it had been
                           (Case C-445/00)                                      submitted to the Council: The Republic of Austria submits
                                                                                that the Commission does not have the authority under
                                                                                the procedure pursuant to Article 16 of Protocol No 9 to
                            (2001/C 45/19)                                      the 1994 Act of Accession to alter a proposal once it has
                                                                                been submitted to the Council, if the Council does not
An action against the Council of the European Union was                         pronounce against the proposal by qualified majority.
brought before the Court of Justice of the European Communi-
ties on 4 December 2000 by the Republic of Austria,
represented by Harald Dossi, acting as Agent, with an address             —     (In the alternative) Insufficient statement of reasons,
for service in Luxembourg.                                                      infringement of Article 253 EC.
The Republic of Austria claims that the Court should:                     —     (In the alternative) Infringement of the EC Treaty and/or
                                                                                Protocol No 9 to the 1994 Act of Accession:
1.     Annul Council Regulation (EC) No 2012/2000 of 21 Sep-
       tember 2000 (1) amending Annex 4 to Protocol No 9
                                                                                —     Article 1 of the contested regulation has as its
       to the 1994 Act of Accession and Regulation (EC)
                                                                                      subject-matter a formal alteration to Annex 4 to
       No 3298/94 (2) with regard to the system of ecopoints
                                                                                      Protocol No 9, which is anchored in primary law;
       for heavy goods vehicles transiting through Austria;
                                                                                      there is no authority in primary law for such an
                                                                                      alteration.
2.     Order the Council to pay the costs.
                                                                                      Even if, in the words it actually uses, Article 2(1) of
In the alternative, the Republic of Austria claims that the Court                     the contested regulation, whereby the reduction in
should:                                                                               the number of ecopoints is generally spread over
                                                                                      several years, refers only to the amendment of
1.     Annul Article 1 and Article 2(1) and (4) of Council                            Article 6(2)(2) of Regulation (EC) No 3298/94, and
                                                                                      thereby gives the impression that only another
       Regulation (EC) No 2012/2000 of 21 September 2000
       amending Annex 4 to Protocol No 9 to the 1994 Act of                           measure of secondary law is being altered, that
       Accession and Regulation (EC) No 3298/94 with regard                           alteration also amounts to an alteration of rules of
                                                                                      primary law. That is because the ruling in Protocol
       to the system of ecopoints for heavy goods vehicles
       transiting through Austria;                                                    No 9 unequivocally and unmistakably provides for
                                                                                      the full reduction of the ecopoints to be curtailed
                                                                                      for the year following the exceeding of the 108 %
2.     Order the Council to pay the costs.                                            limit.
 ---pagebreak--- C 45/10                  EN                   Official Journal of the European Communities                                      10.2.2001
     —      The allocation of the reduction of the ecopoints             Appeal brought on 1 December 2000 by P.-J. Cubero-
            over several years carried out in Article 1 of the           Vermurie against the judgment delivered on 3 October
            contested regulation (‘stretching model’) and the            2000 by the Fifth Chamber of the Court of First Instance
            general introduction of the stretching model by              of the European Communities in Case T-187/98 between
            Article 2(1) of the contested regulation are, in their       P.-J. Cubero-Vermurie and the Commission of the Euro-
            content, in clear contradiction of the primary law                                    pean Communities
            rules in Protocol No 9.
                                                                                                   (Case C-446/00 P)
            The legal view clearly underlying the contested
            regulation, namely that ‘absolute priority’ is to be
            given to the free movement of goods and the                                              (2001/C 45/20)
            internal market, as opposed to other provisions and
            policies of primary law, is not shared by the Republic
            of Austria. Even the functioning of the internal             An appeal against the judgment delivered on 3 October 2000
            market is to be ensured only in compliance with the          by the Fifth Chamber of the Court of First Instance of the
            requirements of environmental protection. It would           European Communities in Case T-187/98 between
            also have been possible to avoid detriment to the            P.-J. Cubero-Vermurie and the Commission of the European
            internal market with the use of measures less                Communities was brought before the Court of Justice of the
            restrictive of the implementation of Protocol No 9.          European Communities on 1 December 2000 by P.-J. Cubero-
                                                                         Vermurie, represented by E. Boigelot, of the Brussels Bar, with
                                                                         an address for service in Luxembourg at the Chambers of
     —      The reduction in ecopoint quotas carried out by the          L. Schiltz, 2 Rue du Fort Rheinsheim.
            contested regulation takes account only of a (pure)
            causation principle and fails to take due account
            also of the solidarity principle and the principle of        The appellant claims that the Court should:
            proportionality. Moreover, the use of the traffic
            volume figures in the — arbitrarily chosen — years
            1995 to 1997, in which the 108 % limit was not               (1) declare the appeal admissible and well founded;
            exceeded, for comparison with figures for 1999, so
            as to determine the ‘main perpetrator’ of the                (2) consequently:
            exceeding of that limit, lacks all foundation in
            (primary) law and leads to a disproportionate result.
                                                                               (a)   set aside the contested judgment;
—    (In the alternative) Legal infringements and insufficient
     statement of reasons when applying the calculation                        (b) itself determine the case and, upholding the appel-
     method in accordance with paragraph 3 of Annex 5 to                             lant’s initial claim:
     Protocol No 9 to the 1994 Act of Accession: The system
     underlying the contested regulation is, in view of the
                                                                                     —     annul the appointing authority’s decision of
     extraordinary reduction in the number of ecopoints,
                                                                                           6 April 1998 not to promote the appellant to
     wrongly based on the exclusion, or failure to take account
                                                                                           grade A 5 in the context of the 1998 promotion
     of, ‘illegal’ transit journeys without payment of ecopoints.
                                                                                           procedure;
     There is no legal basis for that in Protocol No 9. An
     interpretation of the calculation method laid down in
     paragraph 3 of Annex 5 that corresponds to the declared                         —     annul the decision of 9 October 1998 expressly
     aims of Protocol No 9 can only be one which allows the                                rejecting the complaint against the decision
     damage to the environment and to health arising from                                  annulment of which is sought, that complaint
     ‘illegal’ journeys also to be included in the calculation.                            having been submitted by the appellant on
                                                                                           27 April 1998 and registered in the Secretariat-
                                                                                           General on 6 May 1998 under number
—    (In the alternative) Infringement of the EC Treaty and/or                             R/436/98;
     Protocol No 9 to the 1994 Act of Accession on account
     of insufficient legal basis.
                                                                                     —     order the Commission of the European Com-
                                                                                           munities to pay to the appellant compensation
                                                                                           for the combined material and non-material
                                                                                           damage suffered by him, fixed on an equitable
(1) OJ No L 241, 26.9.2000, p. 18.                                                         basis in the sum of BEF 250 000;
(2) OJ No L 341, 30.12.1994, p. 20.
                                                                                     —     order the Commission of the European Com-
                                                                                           munities to pay all the costs in any event, both
                                                                                           of the first-instance proceedings and of the
                                                                                           present appeal.