# C_2004284EN.01002502.xml

| 20.11.2004 | EN | Official Journal of the European Union | C 284/25 |
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20.11.2004

EN

Official Journal of the European Union

C 284/25

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Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-374/04)

(2004/C 284/50)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 September 2004 by the Federal Republic of Germany, represented by Claus-Dieter Quassowski, Annette Tiemann, assisted by Dieter Sellner and Ulrich Karpenstein.

The applicant claims that the Court of First Instance should:

| — | annul Article 1 of Commission Decision K(2004)2515/2 fin. of 7 July 2004; |
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annul Article 1 of Commission Decision K(2004)2515/2 fin. of 7 July 2004;

| — | annul Article 2 of that decision to the extent to which in paragraphs (a) to (c) thereof it directs the Federal Republic of Germany to carry out and notify certain changes in the national allocation plan; |
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annul Article 2 of that decision to the extent to which in paragraphs (a) to (c) thereof it directs the Federal Republic of Germany to carry out and notify certain changes in the national allocation plan;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas and main arguments:

The contested decision concerns the national plan for the allocation of greenhouse gas emissions notified by Germany pursuant to Directive 2003/87/EC of the European Parliament and the Council. In that decision the Commission raises objections to the provision for subsequent corrections made in the national allocation plan for Germany in respect of allocations for greenhouse gas emission certificates (‘ex-post adjustments downwards’). In the Commission's view, the plan is on that account irreconcilable with Annex III to Directive 2003/87/EC. (1)

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In substantiation of its action the applicant claims that the contested decision is in breach of Article 9(3) of Directive 2003/87 in conjunction with Annex III thereto. Annex III does not prohibit the Member States from counteracting an ‘over-allocation’ by means of ‘ex-post adjustments’. On the contrary, Directive 2003/87 requires the Member States to withdraw an allocation decision based on erroneous data.

The contested decision is also in breach of Article 176 EC since the Commission is not entitled to debar the Member States from making an additional contribution to climate protection by withdrawing allocated emission certificates where they have failed to fulfil their purpose.

Finally, the Commission overlooked the fact that new market participants cannot be placed at an ‘unjustifiable advantage’ because ex-post adjustments can be made only downwards. To that extent the contested decision is vitiated by a manifest error of assessment.

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(1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 established a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 1996 L 275, p. 32).

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