# C_2007283EN.01003501.xml

| 24.11.2007 | EN | Official Journal of the European Union | C 283/35 |
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24.11.2007

EN

Official Journal of the European Union

C 283/35

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Action brought on 26 September 2007 — Lithuania v Commission

Lithuania

Commission

(Case T-368/07)

(2007/C 283/64)

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, Agent)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | declare Commission Decision C(2007) 3407 final of 13 July 2007 (1) to be invalid; |
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declare Commission Decision C(2007) 3407 final of 13 July 2007 (1) to be invalid;

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| — | order the Commission of the European Communities to pay the costs of the proceedings. |
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order the Commission of the European Communities to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant submits that the contested decision, of which it was notified on 16 July 2007, is unlawful and sets out the following grounds in law:

1.   The Commission exceeded its powers.

The applicant submits that, in taking a unilateral decision in regard to the definitive content of Lithuania's national allocation plan, the Commission exceeded the powers conferred on it by Directive 2003/87/EC inasmuch as, while the provisions of that directive empower the Commission to assess the national allocation plans prepared by the Member States, they do not confer powers on it to determine total quantities of pollution emission allowances while overlooking entirely the national allocation plans prepared and submitted by the Member States.

2.   Breach of European Community law.

| 2.1. | Failure to have regard for the objectives of Directive 2003/87/EC: by deciding, in the contested decision, on a national level for emissions over the period 2008 to 2012 which is lower than that required in the light of the obligations assumed by Lithuania pursuant to the Kyoto Protocol to the United Nations Framework Convention on Climate Change, the Commission failed to have regard for the actual objectives of Directive 2003/87 as an effective instrument, from the economic point of view, for giving effect to the obligations assumed by the parties to the Kyoto Protocol in respect of greenhouse gas emissions. |
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2.1.

Failure to have regard for the objectives of Directive 2003/87/EC: by deciding, in the contested decision, on a national level for emissions over the period 2008 to 2012 which is lower than that required in the light of the obligations assumed by Lithuania pursuant to the Kyoto Protocol to the United Nations Framework Convention on Climate Change, the Commission failed to have regard for the actual objectives of Directive 2003/87 as an effective instrument, from the economic point of view, for giving effect to the obligations assumed by the parties to the Kyoto Protocol in respect of greenhouse gas emissions.

Failure to have regard for the objectives of Directive 2003/87/EC

| 2.2. | Infringement of the principles of sound administration and genuine cooperation: the contested decision infringes the principles of sound administration and genuine cooperation inasmuch as the Commission, having disregarded the assessment made when the national Lithuanian allocation plan was being prepared and having essentially failed to consult with Lithuania, carried out a separate assessment based on its own selected methodology for the purpose of determining the maximum quantity of pollution emission allowances. |
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2.2.

Infringement of the principles of sound administration and genuine cooperation: the contested decision infringes the principles of sound administration and genuine cooperation inasmuch as the Commission, having disregarded the assessment made when the national Lithuanian allocation plan was being prepared and having essentially failed to consult with Lithuania, carried out a separate assessment based on its own selected methodology for the purpose of determining the maximum quantity of pollution emission allowances.

Infringement of the principles of sound administration and genuine cooperation

| 2.3. | Breach of the provisions of Directive 2003/87/EC and infringement of the principle of legal certainty: the contested decision breaches Articles 9(1) and 11(2) of Directive 2003/87 inasmuch as, in disregard of the figures submitted in the Lithuanian national allocation plan, and rejecting the method of calculation applied by Lithuania as being inappropriate, the Commission relied exclusively and solely on the figures obtained through application of the method which it itself had selected for the purpose of determining the maximum quantity of pollution emission allowances to be allocated. Moreover, in applying that methodology, of which Lithuania knew nothing in advance, the Commission infringed the principle of legal certainty. |
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2.3.

Breach of the provisions of Directive 2003/87/EC and infringement of the principle of legal certainty: the contested decision breaches Articles 9(1) and 11(2) of Directive 2003/87 inasmuch as, in disregard of the figures submitted in the Lithuanian national allocation plan, and rejecting the method of calculation applied by Lithuania as being inappropriate, the Commission relied exclusively and solely on the figures obtained through application of the method which it itself had selected for the purpose of determining the maximum quantity of pollution emission allowances to be allocated. Moreover, in applying that methodology, of which Lithuania knew nothing in advance, the Commission infringed the principle of legal certainty.

Breach of the provisions of Directive 2003/87/EC and infringement of the principle of legal certainty

| 2.4. | Infringement of the principle of non-discrimination: the contested decision infringes the principle of non-discrimination inasmuch as the Commission, having applied its own selected method for determining the maximum quantity of pollution emission allowances, failed to have regard to the specific situation of Lithuania. The decision has also resulted in situations which are essentially different being treated in the same way. |
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2.4.

Infringement of the principle of non-discrimination: the contested decision infringes the principle of non-discrimination inasmuch as the Commission, having applied its own selected method for determining the maximum quantity of pollution emission allowances, failed to have regard to the specific situation of Lithuania. The decision has also resulted in situations which are essentially different being treated in the same way.

Infringement of the principle of non-discrimination

| 2.5. | Non-compliance with Article 9(1) and (3) of Directive 2003/87/EC and with the fourth criterion in Annex III to that directive: the contested decision is in breach of the obligation contained in Article 9 of Directive 2003/87 and based on the criteria listed in Annex III thereto, inasmuch as it fails, without reason, to take account of the fourth criterion in that annex and of the need in Lithuania to increase electricity generation in plants burning fossil fuel as a result of the undertaking given to shut down the Ignalina atomic power station by 2009. |
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2.5.

Non-compliance with Article 9(1) and (3) of Directive 2003/87/EC and with the fourth criterion in Annex III to that directive: the contested decision is in breach of the obligation contained in Article 9 of Directive 2003/87 and based on the criteria listed in Annex III thereto, inasmuch as it fails, without reason, to take account of the fourth criterion in that annex and of the need in Lithuania to increase electricity generation in plants burning fossil fuel as a result of the undertaking given to shut down the Ignalina atomic power station by 2009.

Non-compliance with Article 9(1) and (3) of Directive 2003/87/EC and with the fourth criterion in Annex III to that directive

3.   Breach of essential procedural requirements under European Community legislation.

The applicant submits that the contested decision was adopted in a manner which infringed essential procedural requirements inasmuch as, first, the Commission breached the provisions of Directive 2003/87/EC by essentially refusing, in the contested decision, to review Decision C(2006) 5613 final, and second, the contested decision is inappropriately and inadequately reasoned and consequently the requirements set out in Article 253 EC and Article 9(3) of Directive 2003/87 have been breached. Furthermore, the Commission failed to comply with the procedural requirement in that directive relating to the duration of the assessment.

4.   Manifest misappraisal.

In the opinion of the applicant, when it examined Lithuania's amended national allocation plan, the Commission, first, failed to take account of the specific and objective circumstances which were stressed by Lithuania and which led to the level of pollution emissions which arose, and, second, applied an inappropriate method of calculation and based itself on inaccurate data, which led to the fixing of an incorrect maximum quantity of pollution emission allowances granted to Lithuania.

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(1)  Commission Decision of 13 July 2007 on the amendment of the national plan for the allocation of greenhouse gas emission allowances notified by Lithuania under Article 3(3) of Commission Decision C(2006) 5613 (final) on the national plan for the allocation of greenhouse gas emission allowances notified by Lithuania under Directive 2003/87/EC of the European Parliament and the Council.

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