Case T-387/04: Action brought on 27 September 2004 by EnBW Energie Baden-Württemberg AG against the Commission of the European Communities
Date: 2005-01-08
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), energy industry, energy policy, greenhouse gas, restriction on competition, tradeable emission permit

C 6/38

EN

Official Journal of the European Union

8.1.2005

Pleas in law and main arguments:

The applicant imports, inter alia, rice paper, which, for several
years, was declared under
the same CN code. However,
following the adoption of Commission Regulation No 1196/97
of 27 June 1997, (1) the goods had to be declared under a
different CN code. The applicant concedes that this was not
done in its case. However, according to the applicant, its case is
a special situation in that the Netherlands customs authorities
committed several errors when carrying out their controls. The
applicant points out that the Netherlands customs authorities
failed to notice that the rice paper had been wrongly classified,
even in the course of various controls carried out over a period
of eight months. The applicant also argues that it cannot be
accused of deception or obvious negligence.

In support of its application, the applicant alleges infringement
of Article 239 of Regulation No 2913/92, (2) erroneous assess-
ment of the facts by the Commission and breach of the duty to
state reasons. The applicant also alleges infringement of the
principles of sound administration and equal treatment, given
that the Commission reached a different conclusion in previous
decisions. Finally,
the
principle of proportionality.

the applicant alleges infringement of

(1) Commission Regulation (EC) No 1196/97 of 27 June 1997
concerning the classification of certain goods in the combined
nomenclature (OJ 1997 L 170, p. 13).

(2) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-

lishing the Community Customs Code (OJ 1992 L 302, p. 1).

Action brought on 27 September 2004 by EnBW Energie
Baden-Württemberg AG against the Commission of the
European Communities

(Case T-387/04)

(2005/C 6/75)

(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 27 September 2004 by EnBW
Energie Baden-Württemberg AG, Karlsruhe (Germany), repre-
sented by C.- D. Ehlermann, M. Seyfarth, A. Gutermuth and M.
Wissmann, lawyers.

The applicant claims that the Court should:

— annul the Commission's decision of 7 July 2004 on the
national plan for the allocation of greenhouse gas emission
allowances, communicated by Germany in accordance with
Directive 2003/87/EC; (1)

— order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant is a German utility company.
Insofar as the
power stations operated by the applicant emit greenhouse
gases, as from 1 January 2005 the applicant is subject to the
Community scheme for greenhouse gas emission allowance
trading introduced by Directive 2003/97/EC.

the decision of

in the present case,

The applicant challenges, save for a number of matters which
the
are not relevant
Commission which endorsed the national plan communicated
by Germany for the allocation of greenhouse gas emission
allowances. In particular, the applicant complains of a rule in
respect of transfers contained in the plan which allocates to a
power station operator who decommissions an old installation
and replaces it with a new one the quantity of allowances
which it had for the decommissioned installation for a period
of four years. In the applicant's view, that gives rise to an over-
allocation of allowances which amounts to State aid within the
meaning of Article 87(1) EC and cannot be justified. The defen-
dant's different assessment in the contested decision is subject
to manifest errors in the statement of reasons and does not
show sufficient investigation of the facts. The contested deci-
sion therefore infringes Article 87(3) EC and Article 88(2) EC.

Further, in breach of Article 88(2) EC, the defendant failed to
initiate the formal State aid procedure, although it must have
had considerable doubt about the compatibility of that rule
with the EC Treaty.

In addition, the contested decision infringes Article 9(3) of
Directive 2003/87/EC and criterion 5 of Annex III thereto, as
the over-allocation of emission allowances unduly favours
competitors of the applicant, which are strengthened because
undertakings like the applicant, which have to decommission
nuclear power stations in the near future owing to statutory
rules, are unjustifiably placed at a disadvantage.

Finally, the contested decision infringes Article 253 EC owing
to numerous gross errors in the statement of reasons.

(1) Directive 2003/87/EC of

the European Parliament and of

the
Council of 13 October 2003 establishing a scheme for greenhouse
gas
trading within the Community and
amending Council Directive 96/61/EC, OJ L 275 of 25.10.2003, p.
32.

emission allowance