Case T-374/04: Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities
Date: 2004-11-20
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), greenhouse gas, reduction of gas emissions, tradeable emission permit

20.11.2004

EN

Official Journal of the European Union

C 284/25

Action brought on 12 September 2004 by Eric Mathias
Fries Guggenheim against European Centre for the Devel-
opment of Vocational Training (CEDEFOP)

the service, to which all reassignment measures are subject,
pursuant to Article 7 of the Staff Regulations.

(Case T-373/04)

(2004/C 284/49)

(Language of the case: French)

An action against the European Centre for the Development of
Vocational Training (CEDEFOP) was brought before the Court
the European Communities on 12
of First
September 2004 by Eric Mathias fries Guggenheim, residing in
Thessaloniki
represented by Marc-Albert Lucas,
lawyer.

Instance of

(Greece),

The applicant claims that the Court should:

— declare unlawful the decision of 17 December 2003 of the
Director of the Centre on the improvement of Coordination
and the Efficiency in Cedefop (A4), in so far as it makes no
provision for a call for candidatures for posts as ‘Head of
Area’ or for a selection procedure for candidates for those
posts;

— annul the decisions of 28 January 2004 of the Director of
Cedefop to appoint certain persons as ‘Head of Area’ or
‘Acting Head of Area’;

— in so far as necessary, annul the decision of 1 June of the
Appeal Committee of Cedefop (A17) rejecting his adminis-
trative complaint of 6 May 2004 against
the earlier
contested decisions;

— order Cedefop to pay the costs.

Pleas in law and main arguments

The applicant, a member of the temporary staff of Cedefop,
objects to the decisions of the Director of Cedefop of 28
January 2004 appointing certain persons as ‘Head of Area’ or
‘Acting Head of Area’.

The applicant relies on a breach of Article 7(1) and (2) of the
Staff Regulations and of the first paragraph of Article 10 of the
Conditions of Employment of other servants of the European
Communities, in that the servants of the Centre appointed as
‘Head of Area’ were assigned to new posts at a high level
requiring specific qualifications without a comparative exami-
nation of their qualifications and those of the other officials or
servants of the Centre.

In support of this plea, the applicant claims that a call for
candidatures and the selection of candidates for certain posts
may be required not only under Articles 4, 29 and 45 of the
Staff Regulations, when vacant posts are to be filled by transfer,
promotion or competition, but also by virtue of the interest of

Action brought on 20 September 2004 by the Federal
Republic of Germany against the Commission of the Euro-
pean Communities

(Case T-374/04)

(2004/C 284/50)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 September 2004 by the Federal
Republic of Germany, represented by Claus-Dieter Quassowski,
Annette Tiemann, assisted by Dieter Sellner and Ulrich Karpen-
stein.

The applicant claims that the Court of First Instance should:

— annul Article 1 of Commission Decision K(2004)2515/2

fin. of 7 July 2004;

— annul Article 2 of that decision to the extent to which in
paragraphs (a) to (c) thereof it directs the Federal Republic
of Germany to carry out and notify certain changes in the
national allocation plan;

— order the Commission to pay the costs.

Pleas and main arguments:

The contested decision concerns the national plan for the allo-
cation of greenhouse gas emissions notified by Germany
pursuant to Directive 2003/87/EC of the European Parliament
and the Council. In that decision the Commission raises objec-
tions to the provision for subsequent corrections made in the
national allocation plan for Germany in respect of allocations
for greenhouse gas emission certificates (‘ex-post adjustments
downwards’). In the Commission's view, the plan is on that
account
to Directive
2003/87/EC. (1)

irreconcilable with Annex

III

In substantiation of its action the applicant claims that the
contested decision is in breach of Article 9(3) of Directive
2003/87 in conjunction with Annex III thereto. Annex III does
not prohibit the Member States from counteracting an ‘over-
allocation’ by means of ‘ex-post adjustments’. On the contrary,
Directive 2003/87 requires the Member States to withdraw an
allocation decision based on erroneous data.

C 284/26

EN

Official Journal of the European Union

20.11.2004

The contested decision is also in breach of Article 176 EC since
the Commission is not entitled to debar the Member States
from making an additional contribution to climate protection
by withdrawing allocated emission certificates where they have
failed to fulfil their purpose.

Finally, the Commission overlooked the fact that new market
participants cannot be placed at an ‘unjustifiable advantage’
because ex-post adjustments can be made only downwards. To
that extent the contested decision is vitiated by a manifest error
of assessment.

(1) Directive 2003/87/EC of

the
Council of 13 October 2003 established a scheme for greenhouse
gas
trading within the Community and
amending Council Directive 96/61/EC (OJ 1996 L 275, p. 32).

the European Parliament and of

emission allowance

Action brought on 17 September 2004 by Polyelectrolyte
Producers Group against the Council of the European
Union and the Commission of the European Communities

(Case T-376/04)

(2004/C 284/51)

(Language of the case: English)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 17
September 2004 by Polyelectrolyte Producers Group, Brussels
(Belgium) represented by K. Van Maldegem and C. Mereu,
lawyers.

The applicant claims that the Court should:

— Order the annulment of the defendant's decision to allow
Norway to apply more stringent concentration limits for
the chemical substance acrylamide than those applicable in
the Community, embodied in Decision of the EEA Joint
Committee No 59/2004 of 26 April 2004 (1) amending
Annex II (Technical regulations, testing and certification) to
the EEA Agreement and the annulment of the Community's
position for the adoption of that decision;

— Declare the illegality and the inapplicability vis-à-vis the
applicant of
the EEA Joint Committee joint statement
concerning the EEA Agreement — Annex II, Chapter XV —
regarding the review clauses in the field of dangerous
substances of 26 March 1999 (2),
in so far as it allows
Norway to apply concentration limits for the chemical
substance acrylamide that are more stringent than those
that apply in the Community;

— Order the defendant to compensate the applicant in the
provisional amount of one Euro for damages suffered as a

result of the adoption of the contested acts, as well as any
applicable interests, pending the exact calculation and
determination of the exact amount;

— Order defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments:

to adopt

In support of its application the applicant submits that, in the
absence of new Community legislation there was no power
under Article 102 EEA Agreement
the contested
measures. The applicant further considers that the contested
measures restrict the free movement of goods and thus infringe
Articles 1, 3 and 97 of the EEA Agreement. It also claims that
they infringe Articles 30 and 31 of Directive 67/548 (3). The
applicant also invokes infringements of general principles of
Community law, namely the principles of legal certainty and
legitimate expectations, proportionality and of non-discrimina-
tion as well as of essential procedural requirements, namely the
need to consult the European Parliament and the duty to state
reasons.

Regarding its action for damages the applicant submits that
because of the contested measures it has suffered both material
damage, due to the need to label the polyarcylamide sold in
Norway with a more restrictive label and danger warnings
incurring additional costs, as well as non-material damage
the Norwegian measures
since,
allowed by the defendant shed a bad light over the classification
of polyarcylamide beyond Norwegian boundaries.

in the applicant's opinion,

(1) OJ L 277, p. 30.
(2) OJ C185, p. 6.
(3) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to
the classification, packaging and labelling of dangerous substances
OJ English special edition: Series I Chapter 1967 p. 234.

Action brought on 16 September 2004 by Bart Nijs
against the Court of Auditors of the European Commu-
nities

(Case T-377/04)

(2004/C 284/52)

(Language of the case: French)

the Court of Auditors of

An action against
the European
Communities was brought before the Court of First Instance of
the European Communities on 16 September 2004 by Bart
Nijs,
represented by
Fränk Rollinger, lawyer, with an address for service in Luxem-
bourg.

residing in Bereldange (Luxembourg),