Keywords
Summary

Keywords

1. Actions for annulment — Plea calling into question the conduct of an institution other than the defendant institution — Whether admissible — Procedural status of an institution implicated in that way — Mere option to intervene — (Art. 230 EC)

2. Accession of new Member States to the Communities — Protocols and annexes to acts of accession — Subject to the legal rules governing provisions of primary law

3. Transport — Road transport — Special rules for the traffic of goods by road through Austria — System of ecopoints for heavy goods vehicles — Reduction in the number of ecopoints in the event of that the threshold for journeys is exceeded — Staggering of the reduction over several years — Invalid — (Protocol No 9 to the 1994 Act of Accession, Art. 11(2)(c), and point 3 of Annex 5; Council Regulation No 2012/2000, Arts 1 and 2(1) and (4))

4. Transport — Road transport — Special rules for the traffic of goods by road through Austria — System of ecopoints for heavy goods vehicles — Reduction in the number of ecopoints in the event of that the threshold for journeys is exceeded — Proportional distribution between the Member States according to their contribution to exceeding the threshold — Whether permissible — (Protocol No 9 to the 1994 Act of Accession, Arts 11(6) and 16)

5. Transport — Road transport — Special rules for the traffic of goods by road through Austria — System of ecopoints for heavy goods vehicles — Reduction in the number of ecopoints in the event that the threshold for journeys is exceeded — Method of calculation laid down by Regulation No 2012/2000 — Whether valid — Method of calculation based on the average use of ecopoints — Not permissible — (Protocol No 9 to the 1994 Act of Accession, points 2 and 3 of Annex 5; Council Regulation No 2012/2000)

Summary

1. Actions for annulment may be brought only against the institution which adopted the contested measure. Nevertheless, the circumstances affecting the legality of that measure may be relied upon in support of such an action even if they relate to the conduct of an institution other than the defendant institution. An institution whose conduct is called into question in that way cannot be involved as a main party to the proceedings but may intervene in them in support of one of the main parties.

see paras 32-34

2. The protocols and annexes to an act of accession constitute provisions of primary law which, unless that act provides otherwise, may not be suspended, amended or repealed otherwise than in accordance with the procedures established for review of the original Treaties.

see para. 62

3. Articles 1 and Article 2(1) and (4) of Regulation No 2012/2000 amending Annex 4 to Protocol No 9 to the 1994 Act of Accession and Regulation No 3298/94 with regard to the system of ecopoints for heavy goods vehicles transiting through Austria are invalid in so far as they aim to spread over several years the reduction in ecopoints to be made as a result of the overstepping of the threshold for journeys provided for in Article 11(2)(c) of that protocol.

Even if the Council, when faced with a situation in which reliable statistics have been transmitted late by the responsible national authorities, is justified in spreading the reduction in ecopoints to a date beyond the end of the year after that in which it has been found that the threshold has been exceeded, where application of that reduction solely to the remaining months of that subsequent year would have the disproportionate effect of stopping practically all transit traffic of goods by road through Austria, spreading the reduction over several years is incompatible with point 3 of Annex 5 to that protocol. In referring to `the following year ' in order to establish the number of ecopoints in the event of a reduction, that provision clearly indicates a time scale of one year. In accordance with that indication, it is open to the Council to apply the reduction in ecopoints over a period of one year with a postponed commencement date in order to take account of the delays attributable to the late transmission of reliable statistics.

see paras 60, 63, 71, 74-77, 85

4. Within the framework of the system of ecopoints for heavy goods vehicles transiting through Austria laid down by Protocol No 9 to the 1994 Act of Accession on road, rail and combined transport in Austria, the distribution of ecopoints between the Member States falls within the competence of the Commission and, where necessary, the Council under Articles 11(6) and 16 of that protocol. In the absence of any guidance in the Protocol relating to the method to be used in sharing the reduction of ecopoints between the Member States the Community institutions have a wide discretion.

In that respect, when deciding to share such a reduction between the Member States in proportion to their contribution to the overstepping of the prescribed threshold for journeys, the Council does not exceed that margin of discretion.

see paras 80-84

5. The method used to calculate the reduction in ecopoints in Regulation No 2012/2000 amending Annex 4 to Protocol No 9 to the 1994 Act of Accession and Regulation No 3298/94 with regard to the system of ecopoints for heavy goods vehicles transiting through Austria is in conformity with both the letter and the spirit of that protocol. Points 2 and 3 of Annex 5 to that protocol refer to the average NOx emission value of heavy goods vehicles and not to a fictive calculation based on a number of ecopoints.

A method of calculation which in practice entails the division of the total number of ecopoints used by the total number of registered journeys, where the total number of ecopoints used takes no account of journeys for which the haulier should have used ecopoints but did not ( " illegal" journeys), whereas those " illegal" journeys are included in the total number of journeys made, does not comply with points 2 and 3 of Annex 5.

see paras 91-93, 96-97