EN Official Journal of the European Union C 26/21

Appeal brought on 27 November 2014 by DK Recycling und Roheisen GmbH against the judgment of the General Court (Fifth Chamber) delivered on 26 September 2014 in Case T-630/13 DK Recycling und Roheisen GmbH v European Commission

(Case C-540/14 P)

(2015/C 026/26)

Language of the case: German

Parties

Appellant: DK Recycling und Roheisen GmbH (represented by: S. Altenschmidt and P.-A. Schütter, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

1. Set aside the judgment of the General Court of 26 September 2014 in Case T-630/13, in so far as the action is dismissed as to the remainder in point 2 of the operative part;

2. Grant, in its entirety, the first head of claim in the application made at first instance to the effect that Article 1(1) of Commission Decision 2013/448/EU (1) 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 (notified under document C(2013) 5666) is annulled in so far as it rejects the inscription of the installations listed in Annex I, Point A, to that decision with the installation identifiers DE000000000001320 and DE-new-14220-0045 on the list of installations covered by Directive 2003/87/EC which Germany submitted to the Commission pursuant to Article 11(1) of Directive 2003/87/EC and the corresponding preliminary annual amounts of emission allowances allocated free of charge to these installations;

3. In the alternative, set aside the judgment of the General Court referred to in 1. above and refer the case back to that court;

4. Order the Commission to pay the costs.

Grounds of appeal and main arguments

The appellant submits that there has been an infringement of EU law for the purposes of the third option in the second sentence of the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union. It submits that the General Court failed to have regard to the fundamental rights and the principle of proportionality in regarding as compatible with EU law the Commission’s rejection of the allocation of emission allowances free of charge on the basis of a Member State’s clause in respect of hardship cases. The appellant maintains that the judgment under appeal infringes its rights under Articles 16 and 17 of the Charter of Fundamental Rights of the European Union.

The appellant submits, in respect of the ground of appeal put forward, that the Commission did not, in laying down the rules in respect of the free allocation of emission allowances in Decision 2011/278/EU, make any provision for individual fundamental rights to be adequately protected. It takes the view that the free allocation of emission allowances under Decision 2011/278/EU takes place on the basis of standardised calculation parameters. It submits that that decision does not, however, contain any rules which allow for an additional allocation of emission allowances free of charge in cases in which the allocation made by applying the standardised calculation parameters would lead to an abnormal burden or unreasonable hardship in individual cases.

In the appellant’s view, the dismissal of the action infringes the fundamental rights in the Charter and the principle of proportionality. The General Court took into account only the onerous effect which typically occurs as a result of the emissions trading scheme and the allocation regime under Decision 2011/278/EU. The appellant submits that, contrary to the case-law of the Court of Justice, the General Court completely disregarded the necessary protection of its individual fundamental rights.

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