CELEX: C2001/317/35
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-356/01: Action brought on 20 September 2001 by the Republic of Austria by the Commission of the European Communities

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)