# C_2020045EN.01008301.xml

| 10.2.2020 | EN | Official Journal of the European Union | C 45/83 |
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10.2.2020

EN

Official Journal of the European Union

C 45/83

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Action brought on 4 December 2019 — Tazzetti v Commission

(Case T-825/19)

(2020/C 45/69)

Language of the case: Italian

Parties

Applicant: Tazzetti SpA (Volpiano, Italy) (represented by: M. Condinanzi, E. Ferrero and C. Vivani, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | (i) annul Commission Decision (note) ARES (2019) 6014426 of 27 September 2019, addressed to the applicant, Commission Decision (note) ARES (2019) 6024220 of 27 September 2019, addressed to the applicant, Commission Decision (note) ARES (2019) 6048224 of 30 September 2019, addressed to Tazzetti SA, Decision (note) ARES (2019) 6871575, addressed to Tazzetti SpA, and subsequent decisions, and, (ii) where necessary, after finding, pursuant to Article 277 TFEU, that Commission Implementing Regulation (EU) 2019/661 of 25 April 2019 ensuring the smooth functioning of the electronic registry for quotas for placing hydrofluorocarbons on the market (OJ 2019 L 112, p. 11), in particular Article 7 thereof, is unlawful, declare inapplicable, and as a result annul, the aforementioned decisions implementing that regulation; |
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(i) annul Commission Decision (note) ARES (2019) 6014426 of 27 September 2019, addressed to the applicant, Commission Decision (note) ARES (2019) 6024220 of 27 September 2019, addressed to the applicant, Commission Decision (note) ARES (2019) 6048224 of 30 September 2019, addressed to Tazzetti SA, Decision (note) ARES (2019) 6871575, addressed to Tazzetti SpA, and subsequent decisions, and, (ii) where necessary, after finding, pursuant to Article 277 TFEU, that Commission Implementing Regulation (EU) 2019/661 of 25 April 2019 ensuring the smooth functioning of the electronic registry for quotas for placing hydrofluorocarbons on the market (OJ 2019 L 112, p. 11), in particular Article 7 thereof, is unlawful, declare inapplicable, and as a result annul, the aforementioned decisions implementing that regulation;

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging (i) infringement of Article 16(1), (3) and (5) and Article 17 of, and Annexes V and VI to Regulation (EU) 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ 2014 L 150, p. 195); (ii) infringement of Article 291 TFEU and misapplication of the concept of implementing measures; (iii) misuse of powers in the present case; (iv) infringement of Article 296 TFEU and of the obligation to state reasons, and (v) infringement of the principle of proportionality. |
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1.

First plea in law, alleging (i) infringement of Article 16(1), (3) and (5) and Article 17 of, and Annexes V and VI to Regulation (EU) 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ 2014 L 150, p. 195); (ii) infringement of Article 291 TFEU and misapplication of the concept of implementing measures; (iii) misuse of powers in the present case; (iv) infringement of Article 296 TFEU and of the obligation to state reasons, and (v) infringement of the principle of proportionality.

| 2. | Second plea in law, alleging that Article 7 of Commission Implementing Regulation (EU) 2019/661 of 25 April 2019 ensuring the smooth functioning of the electronic registry for quotas for placing hydrofluorocarbons on the market (OJ 2019 L 112, p. 11) infringes Articles 15 and 16 of Regulation (EU) 517/2014 of 16 April 2014 and as a result is indirectly inapplicable.






  — | The applicant claims in this respect that the aforementioned Article 7, in so far as it allows for the non-allocation to the incumbent, a subsidiary of the single declarant, of the quotas calculated on the basis of its own reference values, that is to say the article allocates those quotas exclusively to the single declarant, which has the same beneficial owner as the first incumbent, constitutes an infringement of Articles 15 and 16 of Regulation (EU) 517/2014. |
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2.

Second plea in law, alleging that Article 7 of Commission Implementing Regulation (EU) 2019/661 of 25 April 2019 ensuring the smooth functioning of the electronic registry for quotas for placing hydrofluorocarbons on the market (OJ 2019 L 112, p. 11) infringes Articles 15 and 16 of Regulation (EU) 517/2014 of 16 April 2014 and as a result is indirectly inapplicable.

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The applicant claims in this respect that the aforementioned Article 7, in so far as it allows for the non-allocation to the incumbent, a subsidiary of the single declarant, of the quotas calculated on the basis of its own reference values, that is to say the article allocates those quotas exclusively to the single declarant, which has the same beneficial owner as the first incumbent, constitutes an infringement of Articles 15 and 16 of Regulation (EU) 517/2014.

| 3. | Third plea in law, alleging infringement of the fundamental principles of the EU legal order relating to property and the freedom to conduct a business, of Article 6 TEU in conjunction with Articles 6, 16 and 17 of the Charter of Fundamental Rights of the European Union, of Article 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and of Article 11 TFEU. The applicant also alleges misuse of powers.






  — | The applicant claims in this respect that, by unreasonably depriving the applicant’s subsidiary company of the hydrofluorocarbons quotas, which the subsidiary is entitled to be allocated on the basis of its own reference values, the Commission decisions constitute a breach of the applicant’s fundamental rights. Where the rules of the implementing regulation are aimed at limiting/precluding the allocation of quotas to new entrants that have not previously operated on the market, the application of those rules on the part of the Commission to the applicant’s subsidiary company (and therefore to the applicant itself) is vitiated by misuse of powers. The defects and grounds referred to also apply where the quotas due to the applicant’s subsidiary company are to be deemed to be allocated to the applicant as a single declarant. |
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3.

Third plea in law, alleging infringement of the fundamental principles of the EU legal order relating to property and the freedom to conduct a business, of Article 6 TEU in conjunction with Articles 6, 16 and 17 of the Charter of Fundamental Rights of the European Union, of Article 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and of Article 11 TFEU. The applicant also alleges misuse of powers.

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The applicant claims in this respect that, by unreasonably depriving the applicant’s subsidiary company of the hydrofluorocarbons quotas, which the subsidiary is entitled to be allocated on the basis of its own reference values, the Commission decisions constitute a breach of the applicant’s fundamental rights. Where the rules of the implementing regulation are aimed at limiting/precluding the allocation of quotas to new entrants that have not previously operated on the market, the application of those rules on the part of the Commission to the applicant’s subsidiary company (and therefore to the applicant itself) is vitiated by misuse of powers. The defects and grounds referred to also apply where the quotas due to the applicant’s subsidiary company are to be deemed to be allocated to the applicant as a single declarant.

| 4. | Fourth plea in law, alleging infringement of the principle of proportionality and the obligation to state reasons in respect of that principle.






  — | The applicant claims in this respect that the application of Article 7 of Implementing Regulation 2019/661 goes far beyond what is required and necessary to attain the objectives of the rules, aimed at a better and more efficient use of the electronic registry. The defects and grounds referred to also apply where the quotas due to the applicant’s subsidiary company are to be deemed to be allocated to the applicant as a single declarant; in such a case, the intrusiveness of the decisions regarding the business organisation of the group for which the applicant is responsible, with the corresponding accounting and tax consequences as well as economic consequences, does not in any way appear justified or reasonable in the light of the objectives pursued by the rules. |
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4.

Fourth plea in law, alleging infringement of the principle of proportionality and the obligation to state reasons in respect of that principle.

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The applicant claims in this respect that the application of Article 7 of Implementing Regulation 2019/661 goes far beyond what is required and necessary to attain the objectives of the rules, aimed at a better and more efficient use of the electronic registry. The defects and grounds referred to also apply where the quotas due to the applicant’s subsidiary company are to be deemed to be allocated to the applicant as a single declarant; in such a case, the intrusiveness of the decisions regarding the business organisation of the group for which the applicant is responsible, with the corresponding accounting and tax consequences as well as economic consequences, does not in any way appear justified or reasonable in the light of the objectives pursued by the rules.

| 5. | Fifth plea in law, alleging infringement of Articles 49 et seq. and of Articles 63 et seq. TFEU.






  — | The applicant claims in this respect that the detriment to its activity caused as a result of the refusal to allocate quotas to its subsidiary, even where the quotas are allocated to the applicant itself, constitutes an infringement of the fundamental freedoms of the internal market, such as the freedom of establishment and the free movement of capital, as the applicant is a company governed by Italian law that has exercised its right of establishment and to the free movement of capital, guaranteed by the law of the European Union, in order to acquire a company governed by Spanish law so as to carry on a part of its own business activity in that market. |
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5.

Fifth plea in law, alleging infringement of Articles 49 et seq. and of Articles 63 et seq. TFEU.

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The applicant claims in this respect that the detriment to its activity caused as a result of the refusal to allocate quotas to its subsidiary, even where the quotas are allocated to the applicant itself, constitutes an infringement of the fundamental freedoms of the internal market, such as the freedom of establishment and the free movement of capital, as the applicant is a company governed by Italian law that has exercised its right of establishment and to the free movement of capital, guaranteed by the law of the European Union, in order to acquire a company governed by Spanish law so as to carry on a part of its own business activity in that market.

| 6. | Sixth plea in law, alleging infringement of the principles of legitimate expectations, legal certainty and non-retroactivity of provisions conferring individual rights.






  — | The applicant claims in this respect that it has the right to organise its own business and that of the group of its subsidiary companies on the basis of reasonable expectations of profitability as a result of the quotas generated from the reference values of (also) its Spanish subsidiary. The decision to not allocate quotas to Tazzetti SA undermines those principles and infringes the obligation to state reasons laid down in Article 296 TFEU, as no explanation has been given for the choice made by the Commission and there is no indication of any balancing of interests. Those principles are also undermined where the quotas of the applicant’s Spanish subsidiary are allocated to the applicant as a single declarant. |
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6.

Sixth plea in law, alleging infringement of the principles of legitimate expectations, legal certainty and non-retroactivity of provisions conferring individual rights.

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The applicant claims in this respect that it has the right to organise its own business and that of the group of its subsidiary companies on the basis of reasonable expectations of profitability as a result of the quotas generated from the reference values of (also) its Spanish subsidiary. The decision to not allocate quotas to Tazzetti SA undermines those principles and infringes the obligation to state reasons laid down in Article 296 TFEU, as no explanation has been given for the choice made by the Commission and there is no indication of any balancing of interests. Those principles are also undermined where the quotas of the applicant’s Spanish subsidiary are allocated to the applicant as a single declarant.

| 7. | Seventh plea in law, alleging infringement of the principle of equal treatment.






  — | The applicant claims in this respect that the contested decisions give rise, in respect of Tazzetti SA, to a situation that does not differ from that reserved for new entrants in the market, even though the subsidiary Tazzetti SA, like the applicant, is an incumbent with a long-established presence on the market. |
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7.

Seventh plea in law, alleging infringement of the principle of equal treatment.

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The applicant claims in this respect that the contested decisions give rise, in respect of Tazzetti SA, to a situation that does not differ from that reserved for new entrants in the market, even though the subsidiary Tazzetti SA, like the applicant, is an incumbent with a long-established presence on the market.

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