# C_2021297EN.01004401.xml

| 26.7.2021 | EN | Official Journal of the European Union | C 297/44 |
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26.7.2021

EN

Official Journal of the European Union

C 297/44

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Action brought on 15 April 2021 — SMA Mineral v Commission

(Case T-215/21)

(2021/C 297/55)

Language of the case: Swedish

Parties

Applicant: SMA Mineral (Filipstad, Sweden) (represented by: E. Larsson)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul Commission Decision (EU) 2021/355 of 25 February 2021, as regards Article 1(2); |
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annul Commission Decision (EU) 2021/355 of 25 February 2021, as regards Article 1(2);

| — | determine that the installation proposed by Sweden in point 12 (ID SE000000000000419 in the NIMs lists) should be included for 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; |
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determine that the installation proposed by Sweden in point 12 (ID SE000000000000419 in the NIMs lists) should be included for 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;

| — | order the Commission to pay the applicant’s costs. |
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order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging that Article 16(7) of Regulation (EU) 2019/331 is not applicable and the statement of reasons for the contested decision therefore has no legal basis






  — | The Commission’s claim of double counting of emissions is erroneous. No double counting is taking place nor has it previously taken place for the SMA Sandarne installation. The Commission’s decision not to include the SMA Sandarne installation among installations which receive free allocation of emission allowances under the product benchmark for lime is therefore erroneous and thus has no legal basis. |
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1.

First plea in law, alleging that Article 16(7) of Regulation (EU) 2019/331 is not applicable and the statement of reasons for the contested decision therefore has no legal basis

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The Commission’s claim of double counting of emissions is erroneous. No double counting is taking place nor has it previously taken place for the SMA Sandarne installation. The Commission’s decision not to include the SMA Sandarne installation among installations which receive free allocation of emission allowances under the product benchmark for lime is therefore erroneous and thus has no legal basis.

| 2. | Second plea in law, alleging that the contested decision is incompatible with EU legislation, in particular with Regulation (EU) 2019/331 and Directive 2003/87/EC






  — | The Commission’s claim of double counting of emissions is erroneous. The decision to refuse, pursuant to Article 16(7) of Regulation (EU) 2019/331, the allocation of free emission allowances to the SMA Sandarne installation according to the product benchmark for lime is therefore erroneous. |
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2.

Second plea in law, alleging that the contested decision is incompatible with EU legislation, in particular with Regulation (EU) 2019/331 and Directive 2003/87/EC

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The Commission’s claim of double counting of emissions is erroneous. The decision to refuse, pursuant to Article 16(7) of Regulation (EU) 2019/331, the allocation of free emission allowances to the SMA Sandarne installation according to the product benchmark for lime is therefore erroneous.

| 3. | Third plea in law, alleging that the contested decision does not adequately ensure observance of the applicant’s fundamental rights and breaches the principle of proportionality






  — | The Commission did not take into account, in the contested decision, the economic significance of the free allocation of emission allowances for the applicant, which also affects employment in the applicant’s business and economic development in the long term, but even the applicant’s competitiveness compared to other market players providing the equivalent product. The Commission did not sufficiently take into account the principle of proportionality, which requires the adoption of transitional provisions when a certain player is burdened by higher costs than other players on the same market. |
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3.

Third plea in law, alleging that the contested decision does not adequately ensure observance of the applicant’s fundamental rights and breaches the principle of proportionality

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The Commission did not take into account, in the contested decision, the economic significance of the free allocation of emission allowances for the applicant, which also affects employment in the applicant’s business and economic development in the long term, but even the applicant’s competitiveness compared to other market players providing the equivalent product. The Commission did not sufficiently take into account the principle of proportionality, which requires the adoption of transitional provisions when a certain player is burdened by higher costs than other players on the same market.

| 4. | Fourth plea in law, alleging that the contested decision leads to a distortion of competition






  — | Producers of burnt lime made from the raw material limestone receive a free allocation of emission rights according to the product benchmark for lime. The kraft pulp mill’s purchase of burnt lime from the SMA Sandarne installation performs the same function for the buyer as purchased burnt lime based on the raw material virgin stone. Granting free allocation of emission rights to one lime product but not to the other means that competition between two products that perform the same function in the kraft pulp mill will not take place on equal terms. |
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4.

Fourth plea in law, alleging that the contested decision leads to a distortion of competition

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Producers of burnt lime made from the raw material limestone receive a free allocation of emission rights according to the product benchmark for lime. The kraft pulp mill’s purchase of burnt lime from the SMA Sandarne installation performs the same function for the buyer as purchased burnt lime based on the raw material virgin stone. Granting free allocation of emission rights to one lime product but not to the other means that competition between two products that perform the same function in the kraft pulp mill will not take place on equal terms.

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