EN Official Journal of the European Union C 296/36

Action brought on 28 September 2005 — AIETC — Associazione Italiana Tecnico Economica del Cemento and Others v Commission

(Case T-371/05)

(2005/C 296/73)

Language of the case: Italian

Parties

Applicant(s): AITEC — Associazione Italiana Tecnico Economica del Cemento (Rome, Italy), BUZZI UNICEM S.P.A. (Casale Monferrato, Italy), ITALCEMENTI GROUP (Bergamo, Italy) (represented by: Massimo Merla, Claudio Tesauro, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

— insofar as the Commission is unable to demonstrate that the mandate given to Commissioner Dimas authorised him to be a signatory to measures adopted concerning competition policy and, in particular, state aid, make a declaration that the Decision is null and of no effect;

— annul: (i) that part of the Decision in which, by stating that no objections are made to the national allocation plan (‘NAP’) (Article 2 of the Decision) and thereby approving the distribution of allowances among the sectors of industry set out in the plan, it sanctioned the discrimination inherent in that distribution which favoured undertakings in some sectors to the disadvantage of other undertakings; (ii) that part of the Decision which states that the intended authorisation of existing installations which are subject to an update of their permits to draw allowances from the new entrants reserve for the part of the modified installation which already existed before the permit update, even where the new entrants have not used up the allowances specifically reserved for them, is incompatible with criterion (10) of Annex III to Directive 2003/87/EC; and (iii) that part of the Decision which calls upon the Italian state to amend the NAP so that existing installations which are subject to an update of their permits are not allowed to draw allowances from the new entrants reserve for the part of the modified installation which already existed before the permit update (Article 2(b) of the Decision).

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The subject of this action is the Decision of 25 May 2005 (1) in which the Commission gave its opinion on the compatibility of the national allocation plan for greenhouse gas emission allowances notified to it by Italy (‘NAP’) with the criteria listed in Annex III to Directive 2003/87 of the European Parliament and of the Council of 5 June 2002 (2).

First, the applicants seek to ascertain whether the Commissioner who was signatory to the contested measure is competent to adopt the Decision. In particular, they call upon the Court of First Instance to establish whether Commissioner Dimas has competence in relation to measures adopted concerning competition policy and, in particular, state aid, and to make a declaration, should there be sufficient grounds, that the contested measure is null and of no effect.

Secondly, the applicants contend that by examining the NAP, a measure that is liable to incorporate elements of state aid, without complying with the procedural provisions in Article 88 (2) and (3) EC, the Commission infringed that provision.

Thirdly, the applicants submit that when the Commission became aware that there were potential state aid aspects to the NAP, it infringed Article 87 EC, criterion (5) of Annex III to Directive 2003/87 EC and the principle of non-discrimination in that, by approving the distribution of allowances set out in the NAP, it gave its approval to the discrimination inherent in that distribution, which was to the detriment of cement producers.

The applicants submit fourthly that the Commission misapplied criterion (10) of Annex III to Directive 2003/87 EC in stating that ‘Italy's intended authorisation of existing installations which are subject to an update of their permits to draw allowances from the new entrants reserve for the part of the modified installation which already existed before the permit update’ was contrary to that criterion. The Commission thereby infringed criterion (5) of Annex III to Directive 2003/87 EC and the principle of non-discrimination in that, by failing to take account of the specific nature of the sectors of industry affected by the implementation of the Directive as far as their capacity to increase production was concerned, it again placed cement producers at a disadvantage compared with other producers.

Lastly, the applicants claim that by approving the NAP notwithstanding the facts that it does not make express provision for undertakings to make appropriate preparations for the transfer of allowances or pooling of installations, that it provides for reference periods for the transfer of residual allowances other than a five-year period and that it imposes unjustifiable restrictions on the pooling of installations and does not make provision for the surrender of cancelled emission allowances, the Commission infringed Articles 11, 12, 13 and 28 of Directive 2003/87 EC.

(1) Commission Decision of 25 May 2005 on the national allocation plan for the allocation of greenhouse gas emission allowances notified by Italy in accordance with Directive 2003/87 of the European Parliament and Council [C(2005)1527 fin, OJ C 226 of 15.09.2005, p. 2].

(2) 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 of 25 October 2005, p. 32).