C-445/00

AUSTRIA v COUNCIL

OPINION OF ADVOCATE GENERAL MISCHO delivered on 13 February 2003 1

I — Introduction transport by road and rail and combined transport in Austria ('the Protocol') of the Act concerning the conditions of accession of the Republic of Austria, the Republic of 1. Crossing the Alps has always presented Finland and the Kingdom of Sweden and problems and the transport of passengers the adjustments to the treaties on which the and goods by trans-Alpine routes has given European Union is founded, 4which estab- rise to technical achievements and ques- lished a transitional system. In addition to tions of an economic, ecological and, the gradual reduction of pollution by finally, political nature. means of the ecopoints system, this lays down a limit on the number of heavy goods vehicles admitted for trans-Alpine transit journeys through Austria.

I I— The relevant Community law (e) "transit of goods by road through Austria" shall mean transit through Austria by heavy goods vehicles, regardless of whether they are laden 5. Protocol No 9 includes the following or not; provisions.

(f) "combined transport" shall mean the carriage of goods by heavy goods A — Definitions vehicles or loading units which com- plete part of their journey by rail and either begin or end the journey by road, whereby transit traffic may under no 6. The Protocol begins with a number of circumstances cross Austrian territory definitions: on its way to or from a rail terminal by road alone;

'Article 1

(g) "bilateral journeys" shall mean inter- national carriage on journeys under- taken by a vehicle where the point of For the purposes of this Protocol, the departure or arrival is in Austria and following definitions shall apply: the point of arrival or departure, respectively, is in another Member State and unladen journeys undertaken in conjunction with such journeys.'

(c) "transit traffic through Austria" shall B — Rail transport and combined trans- mean traffic through Austrian territory port from a departure point to a destination, both of which lie outside Austria;

7. It must also be noted that the Protocol pays particular attention, or even gives priority, to the development of rail trans-

8. Article 6 of the Protocol, for its part, states that the Community and the Member States concerned are to use their best 10. The essential elements of the special endeavours to develop and utilise the rules for road goods traffic transiting additional railway capacity referred to in through Austria are set out in Article 11(2) Annex 3 to the Protocol, which also lists a of the Protocol, which is worded as fol- certain number of measures relating to lows: additional capacity of the Austrian railways for carrying goods in transit through Aus- tria (paragraph 1) and to the potential increase in consignments or tonnage. Cer- tain capacity must be available immedi- ately, that is to say, from 1 January 1995, further capacity in the short term (from the end of 1995), in the medium term (from the 'Until 1 January 1998, the following provi- end of 1997) and, finally, other capacity in sions shall apply: the long term, that is to say, available from the end of 2000 with regard to the Pyrhn- Schober route and from the end of 2010 with regard to the Brenner route.

(a) The total of NO x emissions from heavy goods vehicles crossing Austria in tran- sit shall be reduced by 60% in the period between 1 January 1992 and 9. Article 7 of the Protocol deals with 31 December 2003, according to the measures to enhance the provision of rail table in Annex 4.

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(d) ...

5. At the end of the transitional period, the acquis communautaire in its entirety shall be applied. (e) The ecopoints shall be distributed by the Commission among Member States in accordance with provisions to be established in accordance with paragraph 6.'

6. The Commission, acting in accordance 6 — Emphasis added. with the procedure laid down in Article 16,

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shall adopt detailed measures concerning accordance with paragraph 2 above, will be the procedures relating to the ecopoints extrapolated to produce the average NO x system, the distribution of ecopoints and emission value anticipated for the follow- technical questions concerning the appli- ing year. The forecast value, multiplied by cation of this Article, which shall enter into 0.0658 and by the number of ecopoints for force on the date of accession of Austria. 1991 set out in Annex 4, will be the number of ecopoints for the year in ques- tion.' 7

Year Percentage of ecopoints Ecopoints for EU-15

1991 100 % 23 556 220 (reference year)

1995 71.7% 16 889 810 1996 65.0% 15 311 543 1997 59.1% 13 921 726 1998 54.8% 12 908 809 1999 51.9% 12 225 678 2000 49.8% 11730 998 2001 48.5% 11424 767 2002 44.8% 10 533 187 2003 40.0% 9 422 488

16. Regulation No 3298/94 also fixes, in 18. Acting in accordance with the pro- Annex D, the distribution scale of eco- cedure laid down in Article 16 of the points between Member States. Protocol, the Commission, on 20 May 2000, submitted a proposal for a Commis- sion regulation to the committee provided for in Article 16 of the Protocol ('the Ecopoints Committee'). The Commission pointed out that, according to the calcu- lation method laid down in point 3 of Annex 5 to the Protocol, the number of ecopoints for the year 2000 was to be reduced by approximately 20% (that is, 2 184 552 ecopoints). III — Origin and content of the contested Regulation

17. According to information from the Austrian Government, the ecopoint stat- istics showed 1 706 436 journeys during 1999, which represented a 14.57% increase 19. According to the Commission, the over the figure for 1991. consequence of that reduction would be

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24. Article 1 of the regulation reads as follows:

21. Since its proposal was not approved by 'Annex 4 to Protocol No 9 to the Act of a qualified majority of the Ecopoints Com- Accession of Austria, Finland and Sweden mittee, on 21 June 2000 the Commission shall be amended as follows:

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Year Percentage of ecopoints Ecopoints for EU-15

2000 48.5% 11 428 150

"In the circumstances provided for in Article 11(2)(c) of Protocol No 9, the number of ecopoints shall be reduced. The reduction shall be calculated using the method laid down in point 3 of Annex 5 to Protocol No 9. The reduc- 27. The Republic of Austria claims that the tion of ecopoints thus calculated shall Court should: be spread over several years." 9

...'

9 — Emphasis added. — annul the contested Regulation;

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— in the alternative, annul Article 1 and 29. By order of the President of the Court Article 2(1) and (4) of the contested of 26 January 2001, the Federal Republic Regulation; of Germany and the Commission were granted leave to intervene in support of the form of order sought by the Council. By a further order of 30 April 2001, the Italian Republic was granted leave to intervene also in support of the form of order sought — order the Council to pay the costs. by the Council.

OPINION OF MISCHO — CASE C-445/00

32. The Republic of Austria bases its action V — Admissibility of heads of complaint on six pleas in law: raised against the Commission

Principal plea: 33. The Council objects that the heads of complaint relating to the Commission's acts are illegal because no action has been 1. infringement of essential procedural brought against the Commission by Austria requirements when the contested Regu- and the Court's judgment in the present lation was adopted. case will not be enforceable against an institution which is not a party to the proceedings. In support of its objection of inadmissibility, the Council cites paragraph 33 of the order of the Court of First In the alternative: Instance of 1 December 1994, 11 where it was stated that the court hearing an application for interim relief could not issue directions to individuals who were 2. infringement of the EC Treaty or the not parties to the dispute. Protocol in that the Commission's proposal was amended after it had been submitted to the Council;

3. failure to state reasons; 34. It must be observed straightaway that the situation in the present case is entirely different because the present action does not seek to obtain an injunction addressed 4. infringement of the EC Treaty or the to the Commission. Furthermore, the Com- Protocol by the contested Regulation; mission is an intervener in the present case.

5. infringement of legal provisions and failure to state reasons when applying the method of calculation referred to in point 3 of Annex 5 to the Protocol; 35. In any case, it is sufficient to note that, in support of its application for the annul- ment of the contested Regulation, the

4. If, on the expiry of a period of three '1. The Commission shall be assisted by a months from the date of referral to the Committee composed of the representatives Council, the Council has not acted, the of the Member States and chaired by the proposed measures shall be adopted by the representative of the Commission. Commission.'

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A — Arguments of the parties Council. The German Government and the Italian Government consider that the grant of authorisation by the Commission was justified by the fact that the Austrian authorities were late in providing the statis- tical information required by the Commis- sion.

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44. Article 250 EC provides as follows: proposal concerning the measures to be taken which it submits to the Council. 12

'1. Where, in pursuance of this Treaty, the 47. This applies particularly in the present Council acts on a proposal from the Com- case, where the Commission submitted to mission, unanimity shall be required for an the Council a proposal which was the same act constituting an amendment to that as the one it had submitted to the Manage- proposal, subject to Article 251(4) and (5). ment Committee and which had been amended only in the course of the dis- cussions in the said Committee.

2. As long as the Council has not acted, the Commission may alter its proposal at any 48. Consequently the question falls within time during the procedures leading to the the ambit of Article 250(2) EC, which gives adoption of a Community act.' the Commission complete freedom to amend the proposal it submitted to the Council.

45. The question raised by Austria is in reality whether the Commission can still 49. The remaining question is whether, as amend a proposal when, in the absence of a Austria maintains, the Commission's favourable opinion in the Committee, it has decision to amend the proposal ought to already transferred the proposal, as it have been taken by the full Commission. stands, to the Council, whereas a qualified majority in favour might have been obtained in the Committee if the amended proposal had been submitted to it.

the agreement of the President, to adopt the Council's work make it desirable for the definitive text... of any proposal to be Commission to be informed unofficially in presented to the other institutions the advance of the compromise proposals substance of which has already been deter- which the Presidency of the Council intends mined in discussion'. to present to the Council so that the commissioner responsible can obtain auth- orisation, before the Council meets, to announce an amendment to the proposal to that effect if it appears, in the discussion between the ministers, that a qualified majority can be obtained in favour of the compromise. Moreover, it would be 51. However, the amendment in question acceptable if the said commissioner had a in no way affected the substance of the certain latitude in case the compromise text proposal. As the President of the Court were amended in the course of the dis- observed, at paragraphs 78 and 80 of his cussion, provided that the spirit and the order in the case of Austria v Council, cited substance of the Commission's original above, in the present case the amendment proposal were not affected. to the proposal for a regulation related to one aspect, which was, admittedly, import- ant, but of a technical nature, concerning the application of the calculation method, on which the opinions of the Member States varied. Furthermore, according to 53. Consequently, in my opinion, the first the Commission, which has not been and second pleas are unfounded. contradicted on this point, the proposal was amended in the light of information regarding the interpretation of the statistics supplied by the applicant after the initial proposal for a regulation.

57. The same government observes that the general method of calculation is explained 55. The Council and the interveners in the third recital of the preamble to the observe that it is settled case-law that the contested Regulation by a reference to the statement of reasons required by Article 253 calculation formula, which is itself very EC must disclose in a clear and unequivocal detailed, in point 3 of Annex 5 to the fashion the reasoning followed by the Protocol and, more importantly, that the institution which adopted the measure in exact calculation with figures was repro- question in such a way as to enable the duced in the statement of reasons of the persons concerned to ascertain the reasons Commission's proposal of 20 May 2000. for the measure and to enable the Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with 58. Finally, according to the German Gov- regard not only to its wording but also to ernment, the context of the distribution of its context and to all the legal rules govern- ecopoints among the Member States which ing the matter in question. 13 contributed most to exceeding the thresh- old is described in the seventh recital of the preamble to the contested Regulation and the argument for or against a calculation based on the polluter-pays principle or the principle of solidarity were broadly set out by the Commission in the statement of 56. The German Government observes reasons of its proposal. that the proposals and memoranda pres- ented in the legislative procedure and produced by the Republic of Austria in Annexes 4 and 5 to its application, fall within that context. According to the 59. The Commission considers that the 13 — See the judgments in Case C-478/93 Netherlands v fifth and sixth recitals of the preamble to Commission [1995] ECR I-3081, paragraphs 48 and 49, the contested Regulation show clearly that and Case C-22/94 Irish Farmers Association and Others [1995] ECR [-1809, paragraph 39. the Commission considered that it should

62. Therefore the situation here is 14 — Case C-301/97 Netherlands v Council [2001] ECR I-8853, undoubtedly one where, according to paragraphs 188 and 190.

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Article 11(2)(c) applies, the number of into a general rule for every case to which ecopoints for the following year15 shall be Article 11(2)(c) of the Protocol applies has established as follows', it leaves no room no legal basis at all in the Protocol and is for interpretation. As the threshold pre- manifestly contrary to the system estab- scribed by Article 11(2)(c) was exceeded in lished by the Protocol. 1999, the number of ecopoints for 2000 had to be reduced in accordance with the method of calculation laid down in the second subparagraph of point 3 of Annex 5 to the Protocol. 68. For the Austrian Government, since the Protocol forms part of primary law, its amendment by the contested Regulation, which is a piece of secondary legislation, without the Council having express auth- orisation under primary law, is manifestly 65. Consequently, in the opinion of the illegal. Austrian Government, the Protocol does not provide a legal basis which would permit the Commission to spread the reduction over four years. 69. The parties' submissions show that this complaint by the Austrian Government raises two separate problems.

66. Furthermore, Article 2(1) of the con- tested Regulation, which replaced the sec- ond subparagraph of Article 6(2) of Regu- 70. I shall therefore examine the following lation No 3298/94, implicitly aims to two questions: amend point 3 of Annex 5 to the Protocol.

71. On this point I agree entirely with the Austrian Government. There is no doubt that Article 2(1) of the contested Regu- lation provides that a reduction in eco- '5) Protocol No 9 must be applied in points as a result of exceeding the stated accordance with the fundamental free- threshold is to be 'spread over several doms established by the Treaty. It is years'. therefore imperative to take measures which are capable of ensuring the free movement of goods and the full func- tioning of the internal market.

72. However, point 3 of Annex 5 to the Protocol states equally clearly that the 6) To impose the whole reduction of reduction is to take effect the following ecopoints solely in 2000 would have year. the disproportionate effect of stopping, to all intents and purposes, transit traffic through Austria. As a result, the reduction in the total number of ecopoints should be spread over the years 2000 to 2003.' 73. The Commission submits that the con- tested Regulation must be understood as referring only to the specific situation in 2000. Article 2(1) could not be interpreted otherwise than as referring to spreading the 76. The Commission adds that the possi- reduction once only as a result of a bility of a similar situation arising in situation which arose in 2000. subsequent years was not considered at

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the time and 'institutionalisation' of the wise, may not be suspended, amended or practice of spreading the reduction was repealed otherwise than in accordance with quite unnecessary and would have been the procedures established for review of the entirely out of place in the context of future original Treaties. 16 decisions to be taken in conformity with the committee procedure, as such decisions must take account of current circum- stances.

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prevent the 108% threshold from being 85. In this connection it should be added exceeded, but not with regard to the means that the Commission's and the Council's of achieving that aim. arguments concerning the inferences to be drawn from the exceptional circumstances of the adoption of the contested Regulation cannot be accepted. Even assuming that such circumstances may affect the validity of special measures for resolving the prob- lems caused by those circumstances, they cannot, by definition, justify the amend- 82. The possible inadequacy of rail capac- ment with permanent effect of the rules laid ity in Austria, which is denied by the down by the Protocol. A new provision Austrian authorities, cannot be such as to which is intended to apply for an unlimited justify the breach of other provisions of the period necessarily becomes the rule and Protocol. Failure to comply with the provi- therefore it cannot purport to be justified sions of the Protocol concerning the by an exceptional situation. improvement of rail capacity may entail the consequences which Community law attaches to the breach of obligations laid down by it, but those consequences do not include the power for the institutions to adopt measures of secondary law which are contrary to primary law. 2. The spreading of the ecopoints reduction over the years 2000 to 2003 (Article 1 of the contested Regulation)

83. I also consider that, as the Protocol includes detailed and explicit provisions 86. Now let me consider the position concerning spreading the reduction in eco¬ regarding Article 1 of the contested Regu- points, it cannot be concluded that the lation, which applies for a limited period of 108% threshold alone is a matter of time. primary law and that those provisions are not.

88. The Council considers that to apply the 90. According to the German Government, whole reduction in ecopoints solely in the it is apparent from the second sentence of year 2000 would have had the dispropor- Article 11(3) of the Protocol, which puts tionate effect of stopping all transit traffic 'the proper functioning of the internal through Austria. The Council claims that market' on an equal footing with 'the the adoption of the contested Regulation protection of the environment in the inter- was delayed by the late dispatch of reliable est of the Community as a whole', that the statistical information by the Austrian Commission and the Council are not authorities. Consequently the Council had entitled, within the framework of the adopted the regulation in a situation of mechanism for reducing the ecopoints force majeure. The Council points out that established in Article 11(2)(c) of the Proto- the objective of the ecopoint system is to col, to take measures which would reduce pollution and that objective has seriously disrupt the proper functioning of already been largely achieved. The possible the internal market. Furthermore, when the problem of noise, apart from the fact that it provisions implementing the reduction did not actually give rise to the ecopoint mechanism were adopted, the Community system, should yield to the requirements of legislature had a degree of latitude, as was the proper working of the internal market. apparent from the words 'appropriate Moreover, the Austrian Government's measures' in Article 11(2)(c) of the Proto- interpretation of the Protocol would have col. If the Commission or the Council were the effect of discouraging the use of lorries required, under that provision, to transpose which cause less pollution. the calculation method contained in point 3

92. For the Commission, the exceptional circumstances arose from the following events: the Austrian statistics were not presented to the Commission until March 2000 and the fact that they were disputed (b) proportionate reduction (deduction of by the Member States to the point where no points for the last quarter): this would agreement could be reached during the not have been in conformity with the procedure of the Ecopoints Committee wording of the Protocol either, but must be deemed an exceptional circum- would have had the additional dis- stance. As that eventuality is never totally advantage of causing Austria to lose excluded, the Commission adds, it could part of the reduction (2/3) to which it not prevent the procedure from taking that was entitled under the Protocol; course because it had no reason in principle for doubting the accuracy of the statistics or the method used by Austria and there- fore could not amend them on its own authority. (c) reduction in the number of ecopoints, spread over four years: this solution chosen by the Commission was cer- tainly contrary to the terms of the Protocol, but did not entail a loss of 93. The institutions were therefore in a ecopoints for Austria. Its right to the situation of force majeure which was, so to quantity specified by the Protocol speak, relative and flexible because of the remained the same, without transit context and the requirement of fairness. traffic being blocked. After careful

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90 However, the fact that the essential aim 93 The disputed provisions of the Protocol of the ecopoint system is to reduce specifically set up a transitional regime N O x emissions does not seem, prima which derogates, in so far as is necess- facie, to alter the interpretation of ary, from the rules governing the Article 11(2)(c) in conjunction with functioning of the internal market. It point 3 of Annex 5 to the Protocol, is true that any provision of an act of which emerges from the very wording accession which includes a derogation of those provisions. Indeed, the mech- from the rules of the Treaty concerning anism which they establish for reducing the free movement of goods must be the ecopoints is set in motion if the interpreted strictly (Case C-233/97 threshold number of journeys provided KappAhl [1998] ECR I-8069, para- for in Article 11(2)(c) of the Protocol is graph 18), in order to facilitate the exceeded, not a threshold of ecopoints achievement of the objectives of the or NO x emissions.... Treaty and the application of all its rules (Joined Cases 194/85 and 241/85 Commission v Greece [1988] ECR 1037, paragraph 20). Nevertheless, that does not mean that it is possible to obtain an interpretation which con- flicts with the clear wording of the provision at issue.'

91 By taking as their basis a threshold number of journeys, Article 11(2)(c) and point 3 of Annex 5 to the Protocol appear designed not only to reduce N O x emissions, an objective which, 97. Consequently, while I agree with the after all, can only be furthered by a President of the Court that an interpre- reduction in ecopoints but also, as an tation directly contrary to the wording of additional objective, to restrict the the provision at issue, such as spreading the number of journeys, an increase in reduction in ecopoints over four years, is which is regarded as a disruption to not admissible, I should nevertheless like to be avoided. add that to concentrate the whole of the reduction in ecopoints in a single quarter is likewise incompatible with that provision.

99. It is true that Article 11(2)(c) of the 102. As point 3 of Annex 5 to the Protocol Protocol requires the institution taking the does not expressly refer to a calendar year decision to adopt 'appropriate measures in and as the effectiveness of the reduction accordance with paragraph 3 of Annex 5 mechanism would have been preserved in thereto'. 17 The said paragraph 3 stipulates this way, I think this interpretation would, that 'the number of ecopoints for the as matters stood at the time, have been following year 17 shall be established as consistent with the Protocol and with follows' and it lays down a mathematical Annex 5. The authors of the Protocol could formula based on the assumption that the not have foreseen that the recording of reduction would be spread over the year transit journeys might give rise to such following that when the threshold was considerable difficulties and entail such a exceeded. long delay in the decision.

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106. Consequently I shall examine only as 109. Consequently, Article 2(4) of the an alternative the question whether, as the contested Regulation replaced the distribu- Austrian Government maintains, such dis- tion table for ecopoints per Member State tribution is illegal because it did not affect in Annex D to Regulation No 3298/94 by a all the Member States. new Annex D which distributes ecopoints on a graduated basis over the period 2000 to 2003.

(a) Arguments of the parties 107. This question could be relevant if the Commission or the Council had once again to reduce ecopoints as result of the thresh- old of 108% being exceeded in a sub- sequent year. 110. The Austrian Government considers that that the new distribution of ecopoints between the Member States is incompatible with Community law. It maintains that, in the absence of any guidance in the Protocol relating to the distribution method, dis- tribution should be effected taking account of general legal principles, in particular the principle of solidarity, and also the polluter 108. It must be observed that the distribu- pays principle and the principle of propor- tion of ecopoints among the Member States tionality. was not brought about by the Protocol, but by Regulation No 3298/94, and the seventh recital of the preamble to the contested Regulation is worded as follows:

111. First of all, the fact that, under the contested Regulation, the reduction in ecopoints concerns only those Member States which have contributed to the sig- nificant increase in traffic transiting through Austria, was, as a matter of principle, fundamentally incompatible with 'Proportionality of the reduction of eco- the principle of solidarity. points... requires that those Member States who contributed most to the 8% threshold being exceeded should have their allo- cations of ecopoints cut to ensure that the total reduction is met. This calls for a revision of the distribution key of ecopoints 112. Moreover, the first criterion used by to the Member States.' the Council to determine the main perpe-

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119. The Protocol gives no indication of Regulation to calculate the reduction in the method to be used for apportioning the ecopoints is incompatible with the general reduction of ecopoints among the Member objectives of the Protocol and thus con- States. stitutes an infringement of the Protocol and a misapplication of the calculation method laid down in point 3 of Annex 5. The use of that calculation method resulted in a lesser reduction than that provided for by the Protocol. The contested Regulation is also 120. It follows that the institutions have a vitiated by a seriously inadequate statement certain discretion in this respect, which is of reasons, since it contains no specific subject to only a limited review by the information concerning the calculation Community courts. method which forms the basis of the reduction in ecopoints imposed in Article 1.

121. However, as the objective of the ecopoints system is to reduce pollution of the environment, it is not manifestly arbit- rary or unreasonable to require only the 124. The Council, the German Govern- Member States which contributed to the ment and the Commission dispute these exceeding of the 8% threshold to suffer the submissions. reduction in ecopoints.

122. I therefore conclude alternatively that 125. To render this problem intelligible, I the Council did not exceed its discretion think it is necessary to summarise the and that the second limb of the fourth plea Commission's observations in the note on must be dismissed. the ecopoints system which forms Annex 2 to its statement in intervention. The note is not contested in so far as it describes the system and summarises the discussions which have taken place.

19 — The formula in point 3 of Annex 5 is as follows: the 131. The Austrian Government contends quartetly average NO x emission values fot lorries in the that it was right to include illicit journeys in current year, calculated in accordance with paragraph 2 above, will be extrapolated to produce the average NO x the calculations. emission value anticipated for the following year. The forecast value, multiplied by 0.0658 and by the number of ecopoints for 1991 set out in Annex 4, will be the number of ecopoints for the year in question. This gives the following formula: [quarterly average NO x emission] x 0.0658 x 23 556 220, where the only variable is the quarterly average NO x emission. Thus, for the year 2000, when the theoretical value for the year is used, namely 7.57 ecopoints per transit journey, the formula gives a figure of 11 730 998 ecopoints, which constitutes the theoretical allocation of ecopoints for that year. However, when the average is reduced by 0.1 to 7.47, the formula gives a total of 11 575 998, a reduction of 155 000 ecopoints. 132. The Council, the German Govern- Generally, a reduction of 0.1 in the average NOx emission corresponds to a reduction of 155 000 ecopoints, that is to ment and the Commission maintain that say, 1.3% of the annual allocation. Thus the lower the average NO x emission, the greater the reduction in this is incorrect. According to them, ecopoints. although illicit journeys count when it is

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necessary to decide whether the 108% 136. Obviously, the Council likewise did ceiling has been exceeded, they cannot be not act in an arbitrary or unreasonable taken into account in relation to the manner in accepting this proposal. reduction of ecopoints.

138. However, the Court has consistently held that 'it is not necessary for details of all relevant factual and legal aspects to be 134. When this error was discovered, the given, in so far as the question whether the Commission recalculated the averages, statement of the grounds for a decision leaving out illicit transit journeys. This led meets the requirements of Article 190 of to a new quarterly average NO x emission the Treaty must be assessed with regard not of 6.9975 instead of 6.159. only to its wording but also to its context and to all the legal rules governing the matter in question. This is a fortiori the case where the Member States have been closely associated with the process of draft- ing the contested measure and are thus aware of the reasons underlying that meas- ure (see Case C-478/93 Netherlands v 135. When this was incorporated into the Commission [1995] ECR I-3081, para- formula in point 3 Annex 5 to the Protocol, graphs 49 and 50, and Case C-466/93 the new figure resulted in an ecopoint Atlanta Fruchthandelsgesellschaft and reduction of 1.1 million instead of 2.1 Others II [1995] ECR I-3799, paragraph million. Therefore the Commission 16)'. 20 amended its proposal accordingly and I consider that, in doing so, it acted cor- rectly. 20 — Netherlands v Council, paragraph 188.

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148. In the course of the oral argument, the 153. Regarding the distribution of eco- Austrian Government joined in this appli- points among the Member States, the cation. relevant figures are given in Annex D to the same regulation.

149. The Commission did likewise.

154. This has the paradoxical result of increasing the number of ecopoints which ought to have been distributed in the past and of those which are yet to be distributed in 2003.

150. For my part, I also propose that the Court grant this application, save with regard to Article 2(1) of the contested Regulation (permanent establishment of the principle of spreading reductions over several years).

— annul Articles 1 and 2(1) and (4) of Council Regulation (EC) No 2012/2000 of 21 September 2000 amending Annex 4 to Protocol No 9 to the 1994 Act of Accession and Regulation (EC) No 3298/94 with regard to the system of ecopoints for heavy goods vehicles transiting through Austria;

— maintain the effects of Articles 1 and 2(4) of the said regulation;

— dismiss the remainder of the application;

— order the Council to pay the costs;

— declare that the German and Italian Governments and also the Commission, the interveners, are to meet their own costs.

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