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 declaration The 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 moni toring 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.