EN Official Journal of the European Union C 65/22

Appeal brought on 1 December 2014 by Holcim (Romania) SA against the judgment of the General Court (Eighth Chamber) delivered on 18 September 2014 in Case T-317/12: Holcim (Romania) SA v European Commission

(Case C-556/14 P)

(2015/C 065/33)

Language of the case: English

Parties

Appellant: Holcim (Romania) SA (represented by: L. Arnauts, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment delivered by the General Court (Eighth Chamber) on 18 September 2014 in case T-317/12, Holcim (Romania) SA v European Commission;

— order the European Commission to pay the costs of the proceedings before the General Court in Case T-317/12 and the costs of the proceedings before the Court of Justice;

— refer the case back to the General Court.

Alternatively, grant the forms of order sought by the Applicant as requested before the General Court:

— on the grounds of articles 256, 268 and 340 TFEU, find the EU liable for the conduct of the European Commission, with regard to the damage suffered by the applicant following the theft of 1 0 00 000 allowances;

— order the EU to pay to the applicant the market value of the stolen allowances, which would not have been recovered on the day of the final judgment, at the market price on the day of the theft, plus interest at the rate of 8 % per annum as from 16 November 2010;

— consequently, order the European Union to pay to the applicant a sum of 1 € on a provisional basis;

— order the parties to agree on the amount of damages and/or the claimant to prove the final extent of his damage, within 3 months following the interlocutory judgment;

— declare the judgment enforceable.

And in any case:

— order the EU to pay the costs;

— declare the judgment enforceable.

Pleas in law and main arguments

In Regulation 2216/2004 of 21 December 2004‘for a standardized and secured system of registries pursuant to Directive 2003/87/EC (1) of the European Parliament and of the Council and Decision No 280/2004/EC (2) of the European Parliament and of the Council’ (3), the European Commission has set up a standardized system of national registries (EU-ETS) to track and secure the issue, acquisition, transfer and cancellation of European Union Allowances (EUAs) (allowances to emit a certain amount of greenhouse gas within the framework of the international agreements regarding their reduction). The national registries are connected and supervised by a central administrator at the European Commission, called Community Independent Transaction Log (CITL).

Several national registries of the EU-ETS have been attacked by cybercriminals. On November 16, 2010, the EU-ETS accounts of Holcim (Romania) were illegally accessed. By a series of operations carried out by unauthorized persons, 1 6 00 000 EUAs were transferred to two foreign accounts, of which only 6 00 000 were recovered thanks to the intervention of the Romanian National Registry (NEPA). This represents a loss of approximately 1 5 0 00 000 € since, due to the position of the European Commission, Holcim (Romania) was not able to recover the remaining stolen allowances.

The European Commission consistently refused (i) to block the stolen allowances, although they each have an individual number and are easily trackable at any time within the EU-ETS and (ii) to disclose in which accounts and/or national registries they are located, with a view to permitting Holcim to institute legal proceedings in the Member State(s) concerned. The European Commission also ordered the national registries to take the same position, on the basis of a duty of confidentiality.

The claim for damages against the European Union, pursuant to Article 21 of the Protocol on the Statute of the Court of Justice, and Articles 256, 268 and 340 TFEU, which was dismissed by the General Court in its Judgment of 18 September 2014, is based:

First Plea: on the liability of the European Union for unlawful decisions of the European Commission, consisting in: i. a misinterpretation of Article 10 (1) of Regulation 2216/2004 of 21 December 2004‘for a standardized and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council’, ii. a breach of Article 20 of Directive 2003/87/EC of the European Parliament and of the Council ‘establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC’ and iii. breaches of several general principles of law (the principle of proportionality and of protection of legitimate expectations, the duty of care and the right to an effective judicial protection with regard to property rights), when deciding not to disclose or allow disclosure of the location of stolen European Emission Allowances (EUAs) in the framework of the European Union Emissions Trading Scheme (EU-ETS).

Second plea: on the liability of the European Union for unlawful implementation of Articles 19 and 20 of Directive 2003/87 and Regulation 2216/2004 of the European Commission with regard to the security, confidentiality and functioning of the EU-ETS.

Third plea: on the liability of the European Union for lawful acts affecting a particular circle of economic operators in a disproportionate manner in comparison with others (unusual damage) and exceeding the limits of the economic risks inherent in operating in the sector concerned (special damage), without the legislative measure that gave rise to the alleged damage being justified by a general economic interest.

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

(2) Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol, OJ L 49, p. 1.

(3) OJ L 386, p. 1.