# C_2015046EN.01003301.xml

| 9.2.2015 | EN | Official Journal of the European Union | C 46/33 |
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9.2.2015

EN

Official Journal of the European Union

C 46/33

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Appeal brought on 8 December 2014 by Romonta GmbH against the judgment of the General Court (Fifth Chamber) delivered on 26 September 2014 in Case T-614/13 Romonta GmbH v European Commission

(Case C-565/14 P)

(2015/C 046/39)

Language of the case: German

Parties

Parties

Appellant: Romonta GmbH (represented by: I. Zenke and M.-Y. Vollmer, Rechtsanwältinnen)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Set aside the judgment of the General Court of 26 September 2014 in Case T-614/13 and |
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Set aside the judgment of the General Court of 26 September 2014 in Case T-614/13 and

| — | Annul Decision 2013/448/EU of the European Commission of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (1) in so far as Article 1(1) thereof refuses the appellant the grant of an allocation on the ground of hardship pursuant to Paragraph 9(5) of the TEHG (2) in respect of the third emissions allowances trading period of 2013 to 2020; |
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Annul Decision 2013/448/EU of the European Commission of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (1) in so far as Article 1(1) thereof refuses the appellant the grant of an allocation on the ground of hardship pursuant to Paragraph 9(5) of the TEHG (2) in respect of the third emissions allowances trading period of 2013 to 2020;

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| — | In the alternative, refer the case back to the General Court for a final decision; |
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In the alternative, refer the case back to the General Court for a final decision;

| — | Order the European Commission to pay the costs of the first-instance proceedings and of the appeal. |
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Order the European Commission to pay the costs of the first-instance proceedings and of the appeal.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| 1. | First ground of appeal: Infringement of EU law on account of misapplication of the principle of proportionality
  The appellant submits, first, that the judgment of the General Court infringes EU law because that Court erroneously interpreted Decision 2011/278/EU (3) as exhaustive and in addition also erroneously regarded that decision as proportionate. It maintains that an allocation on the basis of hardship would also be possible under Decision 2011/278/EU as the present case is a case of force majeure. Furthermore, it takes the view that, in assessing the legality of Decision 2011/278/EU, the General Court balanced the legal interests against each other erroneously by according environmental protection a higher rank than the appellant’s existence. |
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First ground of appeal: Infringement of EU law on account of misapplication of the principle of proportionality

The appellant submits, first, that the judgment of the General Court infringes EU law because that Court erroneously interpreted Decision 2011/278/EU (3) as exhaustive and in addition also erroneously regarded that decision as proportionate. It maintains that an allocation on the basis of hardship would also be possible under Decision 2011/278/EU as the present case is a case of force majeure. Furthermore, it takes the view that, in assessing the legality of Decision 2011/278/EU, the General Court balanced the legal interests against each other erroneously by according environmental protection a higher rank than the appellant’s existence.

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force majeure

| 2. | Second ground of appeal: Infringement of EU law on account of infringement of the appellant’s fundamental rights
  The appellant submits that the judgment is also erroneous in so far as the General Court’s decision infringes the appellant’s fundamental rights, in particular Article 15(1) and Article 16 of the Charter of Fundamental Rights of the European Union which protect the right to pursue an occupation and the right to property. It maintains that the General Court erroneously assumes that the essence of those fundamental rights is not affected. The appellant takes the view that this is not, however, the case. It submits that without the allocation on the ground of hardship it will not be able to continue its activities as a producer of lignite wax or continue to use its lignite wax extraction installation. |
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Second ground of appeal: Infringement of EU law on account of infringement of the appellant’s fundamental rights

The appellant submits that the judgment is also erroneous in so far as the General Court’s decision infringes the appellant’s fundamental rights, in particular Article 15(1) and Article 16 of the Charter of Fundamental Rights of the European Union which protect the right to pursue an occupation and the right to property. It maintains that the General Court erroneously assumes that the essence of those fundamental rights is not affected. The appellant takes the view that this is not, however, the case. It submits that without the allocation on the ground of hardship it will not be able to continue its activities as a producer of lignite wax or continue to use its lignite wax extraction installation.

| 3. | Third ground of appeal: Infringement of EU law on account of infringement of the principle of subsidiarity
  The appellant submits, thirdly, that the judgment of the General Court infringes EU law because that Court erroneously assumes that the Federal Republic of Germany does not have any competence to adopt a provision in respect of hardship cases (Paragraph 9(5) of the TEHG). The appellant maintains that in doing so, the General Court, however, overlooks the fact that the European Commission has the competence to establish the allocation rules only in so far as it actually exercises its competence. It takes the view that atypical cases, such as its own, are just not covered by the Commission’s rules. The appellant submits that in that respect the legislative competence remains with the Member States. |
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Third ground of appeal: Infringement of EU law on account of infringement of the principle of subsidiarity

The appellant submits, thirdly, that the judgment of the General Court infringes EU law because that Court erroneously assumes that the Federal Republic of Germany does not have any competence to adopt a provision in respect of hardship cases (Paragraph 9(5) of the TEHG). The appellant maintains that in doing so, the General Court, however, overlooks the fact that the European Commission has the competence to establish the allocation rules only in so far as it actually exercises its competence. It takes the view that atypical cases, such as its own, are just not covered by the Commission’s rules. The appellant submits that in that respect the legislative competence remains with the Member States.

| 4. | Fourth ground of appeal: Infringement of procedural law on account of an insufficient or contradictory statement of reasons
  The appellant submits that the General Court’s arguments in respect of the consequences of a provision in respect of hardship cases, the shifting effect to be expected due to an allocation on the ground of hardship and the reason for the specific risk of the appellant’s becoming insolvent are insufficient and contradictory and that the General Court thus infringes fundamental procedural law. |
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Fourth ground of appeal: Infringement of procedural law on account of an insufficient or contradictory statement of reasons

The appellant submits that the General Court’s arguments in respect of the consequences of a provision in respect of hardship cases, the shifting effect to be expected due to an allocation on the ground of hardship and the reason for the specific risk of the appellant’s becoming insolvent are insufficient and contradictory and that the General Court thus infringes fundamental procedural law.

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(1)  OJ 2013 L 240, p. 27.

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(2)  Gesetz über den Handel mit Berechtigungen zur Emission von Treibhausgasen (Treibhausgas-Emissionshandelsgesetz — TEHG) (Law on the trade in greenhouse gas emission rights (Law on Greenhouse Gas Emissions Trading, the TEHG)).

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(3)  Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).

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